Two Nations, Two Approaches

Australia's medical cannabis market is said to have reached over $1 billion in 2024. Yet Australian patients face a key restriction that Canadian patients don't: they cannot grow their own medicine.

This difference highlights missed opportunities for patient rights and healthcare equity in Australia.

Canada's Charter-Driven Evolution

Canada's medical cannabis home cultivation wasn't granted by lawmakers. It was won through constitutional challenge.

Medical cannabis was first legalized in Canada under the "Marihuana Medical Access Regulations" (MMAR), which came into force on 30 July 2001. The MMAR established a scheme by which seriously ill Canadians could, with medical practitioner support, obtain authorization to possess dried marihuana for personal medical use.

The Regulatory Journey:

• MMAR Era (2001-2014): Under the MMAR, authorized persons had three options including personal cultivation
• MMPR Interruption (2014-2016): The MMPR, introduced in late 2013 and fully enacted on April 1, 2014, revoked cannabis production licenses. Authorized patients could only obtain cannabis via mail order from Licensed Producers
• ACMPR Restoration (2016-Present): As of August 24, 2016, the Access to Cannabis for Medical Purposes Regulations (ACMPR) replaced the MMPR, with the overarching goal of improving access to medical marijuana

Key Constitutional Cases:

R. v. Smith (2015 SCC 34): On June 11, 2015, the Supreme Court of Canada released its unanimous opinion that the law prohibiting medical access to marihuana other than dried marihuana is unconstitutional. The Court decided that restricting legal access to only dried marijuana was unconstitutional. The Supreme Court declared that it is now legal to possess cannabis derivatives, and not just dried marihuana, for medical purposes.

Allard v. Canada (2016 FC 236): Judge Michael Phelan ruled that prohibiting medical marijuana patients from growing their medical marijuana violates their Section 7 rights under Canada's Charter of Rights and Freedoms. The Federal Court declared the entire MMPR to be unconstitutional on February 24, 2016. The plaintiffs argued that the MMPR violates their Charter rights and the court gave the government six months to amend the MMPR.

Today, Canadian patients can choose between commercial suppliers and home cultivation. Since the Cannabis Act came into force on October 17, 2018, patients authorized by their health care provider can still access medical cannabis through multiple pathways including personal cultivation.

Australia's Commercial-Only Framework

Australia maintains strict control. Medical cannabis can only be obtained through doctor prescription and commercial suppliers. While commercial cultivation has been legal since 2016, no provision exists for patient home growing.

Australian patients must rely entirely on expensive commercial products. This contributed to the estimated $1 billion of private patient spending on "medical cannabis" in 2024.

The Missed Opportunity: Human Rights and Equity

Constitutional Rights Framework

Canada's Charter provided the foundation for challenging restrictive regulations through specific cases:

R. v. Smith (2015 SCC 34): The Supreme Court of Canada unanimously decided that patients with a legal authorization to use cannabis as medicine are entitled to consume it in various forms such as edible or topical products, and not just smoke or vapourize it in dried form. The case specifically involved a man who produced edible and topical marihuana derivatives for sale to members of the compassion club. The SCC declared that one could now possess non-dried forms of medical marihuana, such as edible or topical products, finding that restricting patients to dried cannabis alone was arbitrary and violated Charter rights.

Allard v. Canada (2016 FC 236): The Federal Court ruled that the MMPR's prohibition on home cultivation violated Section 7 Charter rights, finding that forcing patients into a commercial-only system created barriers to reasonable access.

Australia's constitutional framework differs significantly. Australia does not have a national Human Rights Act, meaning many core human rights and freedoms may not be adequately protected at federal level.

Australia is the only liberal democracy in the world that does not have a national act or charter of rights.

However, Australia has already committed to protecting these rights through international treaties. Australia is bound by the International Covenant on Economic, Social and Cultural Rights (ICESCR), which recognizes "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health" under Article 12. Australia is also party to the International Covenant on Civil and Political Rights (ICCPR), which includes equality rights and protection from discrimination.

Under international law, Australia is bound to comply with their provisions and to implement them domestically. The current medical cannabis framework may violate these existing treaty obligations by creating financial barriers to healthcare access and discriminating based on socioeconomic status.

State-based human rights protections in Queensland, Victoria, and the ACT could also provide avenues for challenge. More significantly, Australia could fulfill its international treaty obligations by enacting broader federal human rights protections that would make these challenges possible.

Healthcare Equity Impact

The prohibition creates a two-tiered system where access depends on wealth. Canadian patients can grow unlimited plants based on prescription. Low-income patients aren't excluded due to cost barriers.

$1 billion spent on medical cannabis represents an enormous financial burden on patients with no alternatives.

Benefits of Home Cultivation

Canada's model provides advantages Australia lacks:

• Cost Reduction: Patients produce medicine at fraction of commercial prices
• Quality Control: Patients ensure medicine meets specific needs
• Supply Security: No dependence on commercial pricing decisions
• Reduced Stigma: Normalizes medical use

Policy Framework Comparison

Canada: Patients choose between commercial suppliers and home cultivation. Cultivation limits based on medical need.

Australia: No patient cultivation options. Exclusive reliance on expensive commercial products. Creates barriers for remote or mobility-limited patients.

The Human Rights Case

Australia's approach raises concerns about:

• Healthcare Access: Financial barriers may violate right to healthcare
• Non-discrimination: System disadvantages lower-income patients
• Patient Autonomy: No control over medical treatment production

Reform Opportunities

Australian patients could explore constitutional challenges focusing on:

• Equal healthcare access regardless of income
• Patient autonomy in medical decisions
• Proportionality of restrictions versus benefits

Implementation Options:

• Medical home cultivation pilot for specific conditions
• Designated grower systems for patient caregivers
• Community cultivation cooperatives

Conclusion

The comparison reveals a fundamental divide about patient rights. Canada prioritized constitutional rights and patient autonomy. Australia's commercial-only model may violate healthcare equity principles.

The $1 billion spent by patients on medical cannabis represents massive cost burden on those patients denied alternatives. Every dollar spent shows patients forced into expensive commercial products over affordable home cultivation.

Canada's experience proves constitutional rights can successfully challenge restrictive frameworks while maintaining safety. For Australian patients, this offers a roadmap for reform that could transform medical cannabis from a luxury private market into accessible healthcare.

The question is whether Australia's universal healthcare principles extend to ensuring all patients can access prescribed medicine, regardless of their ability to pay premium prices.