Toward the legalization, regulation and restriction of access to marijuana: Discussion paper – 3.5 Accessing marijuana for medical purposes

3.5 Accessing Marijuana for Medical Purposes

Considerations

Courts have found that Canadians have a constitutional right to reasonable access to a legal source of supply of marijuana for medical purposes. A recent court decision found the MMPR failed to satisfy the constitutional requirement that there be "reasonable access" to marijuana for medical purposes.Footnote 2

Determining how best to provide "reasonable access" to marijuana for medical purposes in the context of a legalized market for marijuana is not straightforward.

At a minimum, it seems clear that those whose medical needs cannot be met in a legal regime (e.g., those below the legal age or those who require a high-potency product if not legally available) will need a method of legal access.

Beyond that, it is the details of the legal regime created by governments (including production and distribution models) that will allow decision makers to determine whether a separate regime for medical users is required in order to provide "reasonable access" for medically-authorized marijuana users.

Limited experiences in other jurisdictions where separate medical and recreational markets coexist provide some interesting insights. For example, in Colorado, several stakeholders noted that the co-existence of retail and medical markets was problematic as it creates dual standards (e.g., different minimum ages, purchase quantities and taxation) and contributes to the grey market, therefore complicating regulation and enforcement. Some stakeholders have said that if they had the chance, they would have proceeded with recreational use only, instead of a dual recreational and medical system.Footnote 3

In the 18 U.S. states that have medical marijuana regimes and where marijuana is not legal for recreational purposes, the production model varies between states:

  • Seven allow commercial production and prohibit personal cultivation. A patient may only access medical marijuana from commercial producers that have been licensed by the government's health department. Once a commercial cultivator is licensed, it must respect production limits, which are enforced in order to maintain public safety and to limit the diversion of marijuana to the black market.
  • Three allow for personal cultivation only. In these states, the number of plants a patient may legally cultivate ranges from six to 15 mature plants at any given time.There are no provisions for commercial production and no licensed marijuana dispensaries. If a patient is unable to cultivate marijuana on their own, they are able to designate a grower to do so on their behalf.
  • The remaining eight states allow individuals to choose personal cultivation or to purchase from state-licensed distributors.

Control of marijuana distribution in jurisdictions that allow for both personal and commercial cultivation can be a challenge. Marijuana produced commercially is tracked, which prevents producers from cultivating and holding material that is in excess of their plant limit. However, when personal cultivation is allowed, a grey market for products produced or distributed in ways that are unauthorized may be created.

In terms of quantities authorized for medical purposes, the range under the former Canadian personal cultivation regime is 0.5 grams/day to more than 300 grams/day, with average being 17.7 grams/day by December 2013. The College of Family Physicians of Canada suggests a maximum of 3 grams/day.

Possible Options

  1. Continued access to marijuana for medical purposes: It is anticipated that there could continue to be a need to enable access to marijuana for those who require it for medical reasons, but for whom reasonable access is not possible in the legalized context. This might require allowing different production methods (e.g., home cultivation) not available to others. It could also require carve-outs for medically-authorized youth or those who need high potency products. Physician involvement would still be necessary.

Questions

  • What factors should the government consider in determining if appropriate access to medically authorized persons is provided once a system for legal access to marijuana is in place?

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