Constitutional Challenges Highlight Serious Access Issues in Canada’s Medical Marijuana Program


February 23rd, 2015 – The fate for how tens of thousands of Canadians access their Picture 11medical marijuana, the price they pay and what form that medicine takes hangs in the balance as the first of two major court cases are set to begin this week. So too does the fate of Canada’s fledgling commercial marijuana growing industry.

The first case, Allard v. Canada, set to begin today in Federal Court in Vancouver B.C. is a constitutional class action against Health Canada’s “Marijuana for Medical Purposes Regulation” (MMPR) program. (The MMPR program, introduced in April 2014, requires patients to access their medicine from commercial growers.) The Allard v. Canada action alleges Health Canada has failed to preserve the rights of medically approved patients to produce their own medicine or if unable to do so, to have a caregiver do so for them, as was provided for in the now repealed Marihuana Medical Access Regulations (MMAR).

This group of B.C. patients is arguing that the new MMPR rules are overly restrictive and would make medical cannabis unaffordable. Under the old MMAR system they say, the cost to produce marijuana ranged from $0.50 to $2 per gram ($14-56 oz). A recent survey of Canadian licensed producer web sites shows that under the new MMPR regime, costs can range from $6 to $15 per gram ($168-$420 oz). (Taken from a survey of Canadian Licensed Producers’ web sites Feb. 18, 2015)

The second case R v. Smith, set to begin March 20th will be heard at the Supreme Court of Canada and challenges Health Canada for continuing to deny patients access to cannabis, other than in its dried form, and the imposition in the MMPR of the 150 gm limit on a patient entitlement to possess, other than at their storage or production site.

Owen Smith’s case against Health Canada stems from his work at the Victoria Cannabis Buyers Club, a non-profit compassionate care club, where he was charged for providing MMAR regulated patients with cannabis in forms other than smoked dry form (such as extracts and edibles (i.e. cookies)). Both the MMAP and MMPR programs require patients to obtain their medicine in the dried form, which is then usually smoked.

These court cases highlight a range of serious access challenges facing medical marijuana patients in Canada, including: access to medicine that is affordable, safe and effective.

Affordable Medicine:
Of Canada’s estimated 40,000 plus medical cannabis patients, an estimated 25,000 were relying on accessing their medicine by way of growing themselves or through a designated grower. A research survey, supported by the UBC Institute for Healthy Living and Chronic Disease Prevention, of patient characteristics under the MMAR program disclosed that 60-70% of those persons authorized to possess cannabis are on disability pensions and that affordability was a substantial barrier by all income groups.

Patients who produce their own medicine or have a third party-grow for them are clearly accessing their medicine more cost-effectively ($14-56 oz) when you consider current commercial pricing in the range of $168-420 oz.

Even as new compassionate programs are rolled out by producers, patients can still pay thousands per month for their medicine. Possibly one solution would be to give cannabis a drug identification number and have it included as a benefit covered by our health care system. Collective purchasing could also lead to more competitive pricing for patients.

It’s not unreasonable to expect that economies of scale in large commercial operations should lead to efficiencies leading to lower pricing. Therefore, it’s difficult to understand why commercial pricing is still at or above that of the black market. Meanwhile, Bay Street is indeed enjoying a pot investor boom – the average estimated value of newly licensed producers is around $70 million. (HempNews contacted the Canadian Medical Cannabis Industry Association last week for comment on this article, but has as of yet not received a response)

If a policy objective of the new MMPR program was to price black market operators out of existence, then we predict the current commercial pricing structure will be unsuccessful. Since a considerable number of patients are low-income, current commercial pricing can create an access barrier that risks forcing patients back into the black market or off their medicine altogether. Also, accessing medicine from licensed producers usually means waiting for the mail or a courier, whereas under the MMAR system, a dependable supply of medicine is either in your garden or in your cupboard.

If the MMPR program is to succeed, prices need to drop considerably. Currently, patients do not benefit from collective purchasing and pricing structures as is common with regulated pharmaceuticals.

Safe Medicine:
Access to medicine that does no harm is an important safety issue. Under the current MMPR program, patients are required to access their medicine in dry bud form, which then must be smoked or vaporized. Most doctors would likely agree smoking is not a safe form of consumption, yet more safe, ingestible forms of cannabis, such as edibles are outlawed.

Furthermore, if a patient wants to purchase “organic” medicine from plants grown without chemical fertilizers and/or pesticides, a recent survey of licensed provider web sites shows Canadian patients have only one option.

While the expectation for the MMPR program was in part the delivery of a consistent supply of safe medicine, to date, the fledgling commercial growing industry has encountered a series of challenges including product shortages, advertising violations and product recalls (due to mould issues). As producers continue to sort these issues out, this creates a barrier to safe, consistent access, either leading patients to turn to the black market, change providers or do without.

For their part licensed producers have not had it easy either. After having to make significant investments in property, security and production capacity, they have then had to endure a very slow Health Canada review and approval process, so much so that at a recent gathering to discuss their shared challenges, talk of a class action suit was in the air.

Effective Medicine
Another barrier for patients is access to effective medicine. When licensed producers run out of a particular medicinal strain (i.e. AK-47), patients are left no choice but to either switch to another strain or try to change to another provider. However, either solution can be problematic.

Switching from one strain to another on short notice can be as difficult as switching from one anti-depressant to another in mid-stream treatment. Patients often find certain strains especially helpful for their particular condition. If the patient is forced to switch strains, they must now go back to the discovery process, trying multiple other strains until hopefully a suitable replacement can be found to treat their disease. This situation can cause undue delay in treatment and potential suffering. It also doesn’t help that Health Canada will not allow producers to tell potential patients which strains help which symptoms.

The alternative to switching strains is to switch to another producer that also carries a patient’s required strain. This is not as easy as it sounds. Since a patient’s producer holds the original of the doctor’s prescription, the patient must either now go back to their doctor for a new prescription or have the producer return the original.

Finally, once a patient undergoes the discover process, finds an appropriate strain and then finally finds a consistent producer supply, patients will then find that they are limited to holding a maximum of 150 grams of medicine, which for many patients can represent only 1 weeks worth. Why not allow patients to hold at least one months supply as is standard with pharmaceuticals?

The inadequacies in the current MMPR system represent serious access barriers for medical marijuana patients. And now with these current constitutional challenges underway, it could be years before patients finally find relief.


One response to “Constitutional Challenges Highlight Serious Access Issues in Canada’s Medical Marijuana Program”

  1. Please help if you can! I have jumped through every Calgary Alberta Canada hoop to get help for my son with his intractable seizures. There is only one doctor in Calgary, city of one million, who will sign the forms for legal access to medical marijuana, and then it can only be the dried leaf (federal law). So I am just waiting for the lab in another province to give me the go ahead to send a sample of the hi CBD lo THC strain oil that I made yesterday. My son is 28 years old and lives in a group home. Today I received an email from the group home administrative office as follows: “there may be some legalities about our staff being able to administer, as it is designated a controlled substance. Also, not sure whether it can be kept in the house . If you have information can you please provide.” I did ask the group home if they would also seek out information as things are pretty up in the air right now with the Supreme Court hearing the issues this month. (lower courts have already overturned the laws as unconstitutional but our dear government appealed). Can anyone give me a direction as to where I might find out this information? i.e. who may store and administer CBD oil? The group home agency contracts with Persons with Developmental Disabilities, a provincial entity, to provide residence and day program to disabled persons. I have full guardianship. I have been trying to get this working since August and am deeply frustrated!!

    Thank you,

    Penny Clipperton

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