Non-Patients Eligible for Exemptions to Possession and Trafficking Laws

Health Canada’s amendment to allow licensed producers to sell cannabis oil to patients was reported on by media outlets across the nation and analyzed by various industry experts online. Lost in the analysis, however, was a peculiar provision inserted into the amendment enabling non-patients, or...

Health Canada’s amendment to allow licensed producers to sell cannabis oil to patients was reported on by media outlets across the nation and analyzed by various industry experts online. Lost in the analysis, however, was a peculiar provision inserted into the amendment enabling non-patients, or ‘persons providing assistance’, to claim an exemption from possession and trafficking laws to the extent necessary to provide assistance to a patient, if the marijuana was obtained by the patient.

"person providing assistance" means a person who is providing assistance in the administration of marihuana or a product described in the applicable paragraph (c) of the "Scope of Exemption" section below to a client or an out-patient of a hospital.

Pursuant to section 56 of the CDSA, a person providing assistance is exempted from subsection 4(1) and section 5 of the CDSA and subsection 8(1) of the NCR to the extent necessary to allow the person, for the purposes of providing the assistance to the client or out-patient, to possess and provide fresh marihuana, cannabis oil or a product described in the applicable paragraph (c) above - in an amount not exceeding the equivalent of 5 g of dried marihuana - that has been obtained by or for the client or out-patient.

(From ‘Section 56 Class Exemption for clients and responsible persons Under the Marihuana for Medical Purposes Regulations to Conduct Activities with Cannabis’, Health Canada: http://www.hc-sc.gc.ca/hc-ps/substancontrol/pol/pol-docs/clients-exemption-clientes-eng.php)

However, before non-patients get too excited, there are some caveats. For one, the exemption only applies to fresh marijuana and marijuana derivatives, not dried marijuana. In addition, the amount may not exceed the equivalent of 5 grams of dried marijuana, and persons providing assistance cannot alter the marijuana. It appears that these individuals do not need to be registered with Health Canada, but if they do in fact want the ability to alter marijuana on a patient’s behalf (for example, a parent wanting to produce CBD oil for their child from LP-sourced dried marijuana), they must be register as a designated “responsible individual” on the patient’s initial application to the licensed producer.

Why then, did Health Canada feel compelled to include such an exemption for ‘persons providing assistance’, with the specified conditions and limitations that they attached? My best guess is that the government wanted to enable third party labs and lab technicians to test fresh marijuana and marijuana derivative products on behalf of patients, especially since cannabinoid levels and dosages will change after a patient turns their marijuana into oil. Family members administering small amounts of cannabis oil to paediatric patients may be another cohort able to claim benefit from the exemption.

The government undoubtedly wants to contain the number and scope of exemptions claimed pursuant to this provision, and the fact that this provision has hardly been reported on may not be an accidental affair; In fact, one of the biggest developments of Health Canada’s announcement last week — an exemption that now allows patients to chemically and physically alter their marijuana — barely saw the light of day in the Canadian media because it was tucked away inside a link at the bottom of Health Canada’s online announcement. Even Health Canada’s press release announcing the amendments was completely devoid of mentions of either development.

While this new protection for ‘persons providing assistance’ was announced just last week (and has yet to be analyzed and interpreted by a Canadian court), it is only a matter of time before an individual claims the exemption in a matter of judicial purview and case law surrounding the provision develops — so that non-patients can better understand just how “providing assistance” is defined, and the scenarios and relationships in which they can claim the exemption.

Leave a comment below… What do you think of this new provision?

Disclaimer: The Content of this article is not legal advice and is presented for informational purposes only. Do not use or otherwise rely upon any of the Content without first seeking independent legal advice.

Harrison Jordan is a law student at Osgoode Hall Law School. He has an interest in commercial law, criminal justice and the Controlled Drugs and Substances Act.

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