Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence, December 2, 2009
OTTAWA, Wednesday, December 2, 2009
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other acts, met this day at 10:52 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to the Standing Senate Committee on Legal and Constitutional Affairs.
[Translation]
We are continuing our study of Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other acts.
Today we have the pleasure of having a panel of witnesses who will be the last witnesses we will hear, apart from a few officials, in our study of this bill, which I have to say has been pretty exhaustive.
[English]
We are pleased to have appearing today: from the BC Compassion Club Society, Jeet-Kei Leung, Communications Coordinator; from the Beyond Prohibition Foundation, Kirk Tousaw, Executive Director; from the Vancouver Island Compassion Society, Philippe Lucas, Founder/Executive Director; and from the Canadian AIDS Society, Lynne Belle- Isle, Programs Consultant, National Programs.
Thank you for being with us. We are grateful that it has been possible for you to appear on the same panel, although we appreciate that you each speak for your individual organizations.
Mr. Tousaw, please proceed.
Kirk Tousaw, Executive Director, Beyond Prohibition Foundation: Honourable senators, thank you for the invitation to testify. I have read the transcripts of past proceedings. I speak on behalf of all Canadians when I say that we appreciate the hard work of the committee on this vital issue. All Canadians deserve the rigorous analysis that this body has conducted on this legislation. I urge you to continue to apply that kind of rigour to your deliberations, and to fulfill the traditional role of this house as the body of sober second thought of our government and to reject the radical and dangerous escalation of the war on drugs.
I am here on behalf of the Beyond Prohibition Foundation, a fledgling non-profit organization dedicated to the repeal of cannabis prohibition and its replacement with a system of regulated and taxed production and distribution of cannabis to adult consumers. I am also here as a criminal defence lawyer, practicing with Conroy & Company. I have practiced on both sides of the Canada-U.S. border. I have experienced the mandatory minimum regime in the United States at both the federal and state levels. You will not be surprised to learn that despite 30 years of experience locking people up for 10- , 20-, 30- and even 50-year stretches, drugs are readily available, violence is a daily feature of the prohibition markets and for every so-called "drug dealer'' put in prison, there are five ready to take over the now vacated marketplace.
I am also here, perhaps most importantly, as a father. My wife, Debbie, and I are parents of three young children — Kaya, aged nine years; Cayden, aged five years; and Oaklen, aged three years. As parents, we share the same hopes and dreams for our children as any other: to keep them safe; to enable them to make good choices; and to build a society that maximizes their opportunities while minimizing the dangers they face as they grow into their full potential. I know with every fibre of my being that this legislation will not help us achieve those goals. It will instead achieve precisely the opposite.
I do not propose to restate in detail what has already been said to you on this issue. There is a laundry list of social harms that this legislation will undoubtedly cause: the increased violence and death in the drug markets, both of participants and innocent bystanders; the massive inflation of our prison populations with attendant increases in violence, death, disease, rape and recruitment into gangs; the massive overburdening of our criminal justice system that is already creaking under the weight of drug prohibition; the disproportionate impacts on youth and visible minorities and persons living in areas not served by drug courts; and prosecutors unwilling to utilize the overarching discretion vested in them by this legislation.
There is also a laundry list of things that will absolutely not be achieved by this legislation. There will be no decline in drug demand; no decline in drug availability; no decline in drug purity; no increase in drug prices; no reduction in the scope and power of organized crime and, indeed, a likely increase in that power; no deterrent effect; no increase in the length of sentences handed out to high level drug trafficker and importers, the purported targets of this legislation; and no increase in public safety.
You have undoubtedly listened carefully to the testimony of the witnesses who have gone before me and you already know these things. You have heard the police say this bill will not affect how the police prioritize their limited resources and perform their difficult jobs. You have heard senior Crown counsel talk about their retention problems and how this bill will cause havoc with their ability to do their jobs. You have heard Americans discuss the failures and harms of their system, which we now propose to create a pale imitation of.
I cannot add to that testimony. Therefore, I want to tell two stories about two people, because ultimately this bill will affect people: sons and daughter, mothers and fathers; Canadian people. When discussing crime, it is far too easy to forget we are talking about human beings. It is far too easy for politicians pushing fear to justify a so-called "tough on crime'' agenda; to demonize drug users and sellers, painting them as some type of "other,'' outside the bounds of society; and to call them "pushers'' or "junkies,'' and use language to objectify and dehumanize these mothers, fathers, brothers, sons, sisters and daughters.
The reality is more complex. Some of the highest-level organized criminals are violent, dangerous and are wedded to criminality. However, they will not be affected by this legislation in the slightest, except perhaps if this legislation has the effect of clearing out their competition, in which case, these traffickers will be emboldened and empowered.
In Michigan, early in my career, I was involved in a case of cocaine trafficking. The defendants, a brother and sister, lived in California and were alleged to have mailed over five kilograms of cocaine from California to Michigan, an amount of cocaine that would probably fit on one of these placemats.
The brother was alleged to be the mastermind and the sister a "mule'' who, on one occasion, dropped off the cocaine at a post office in California. There was significant evidence against the sister but little against the brother. They were extradited from California to Michigan because, in California, the crime carries a potential five-year prison term. The police and prosecutors felt that facing Michigan's 20-year, no-possibility-of-parole mandatory minimum sentence might loosen the tongues of the accused, and have them roll over on their suppliers in the Mexican cartels.
That did not happen, primarily because doing so would have led to retaliation against their family members, who would most likely have been killed. The sister was convicted and the brother acquitted. She was a mother. She was sentenced to 20 years. That was 10 years ago. She has 10 more years in prison to go.
Her child was deprived of a mother with all the pitfalls that deprivation carries, and for what? The amount of cocaine she was incarcerated for is literally a drop in a proverbial ocean that flows around Michigan, the United States, Canada and around the world, almost wholly unabated.
More recently here in Canada, I represented a man named Mat Beren. He was found in 2005 growing 1,000 cannabis plants for distribution to the then-400 members of the Vancouver Island Compassion Society, VICS, and for research ongoing at that society. The production occurred in an outbuilding on rural, rented property with the full knowledge of the property owner. Mr. Beren was paid a nominal salary for his labour. It was far less than he could have earned working in the non-medical cannabis industry. All the members of the Vancouver Island Compassion Society have physician support for their medicinal cannabis use, but few, both then and now, have been able to navigate the federal government's tortured and restrictive exemption scheme.
Mr. Beren challenged the validity of the scheme as it relates to medical marijuana, and after a lengthy trial, we were partially successful in having portions of the Marijuana Medical Access Regulations, MMAR, ruled invalid.
However, because his conduct was ultimately illegal, he was convicted of production and possession for the purpose of trafficking in marijuana. The decision is currently before the Supreme Court of Canada on cross-applications for leave.
The trial judge, Justice Koenigsberg, a 16-year veteran of the high court bench, having heard literally weeks of evidence about Mr. Beren, about the VICS and the motivation for conduct — the circumstances of the offence and of the offender — granted Mr. Baron an absolute discharge.
She called the case, in her reasons of sentence, one of the clearest cases for that sentence she had ever seen. Under this legislation before you, Mr. Baron would be in prison today and would have been sentenced to a mandatory term of three years for providing organic medicine to critically and chronically ill Canadians.
I find that situation to be reprehensible; I think it is wrong. When I hear the Minister of Justice, as he did, tell this committee that this law will not affect medical marijuana users or caregivers, he is wrong. When he says this legislation is crafted to target high-level sellers and importers, he is wrong about that, too.
This legislation is a massive step in the wrong direction. It will produce tragic consequences. Like the war on drugs it represents and escalates, it is scientifically invalid, empirically ineffective and morally bankrupt. Those who support the bill, vote for it and allow it to become the law of this great land will have blood on their hands and should feel shame in their hearts.
Jeet-Kei Leung, Communications Coordinator, BC Compassion Club Society: Honourable senators, thank you for this opportunity to speak to you directly. I am the Communications Coordinator for the BC Compassion Club Society. We are the non-profit organization that has operated Canada's oldest and largest medicinal cannabis dispensary since 1977.
In the past 12 years, we have served over 5,500 members with serious or terminal illnesses. I will also mention quickly that, since our second year, we have operated an adjoining wellness centre, and that part of our non-profit model has been to use the revenue from Canada sales to create accessible and affordable natural health care for our members. Last year, we subsidized over 89 per cent of the actual cost of providing over 2,500 treatments in our wellness centre, in seven modalities, including acupuncture, clinical counseling and holistic nutrition.
We, our members, and many others are greatly concerned and alarmed about the impacts Bill C-15 will have on medicinal marijuana patients and the cultivators who supply them through compassion clubs. Earlier testimony in this committee's proceedings suggests that, indeed, cultivators of compassion clubs will be subject to Bill C-15's mandatory sentences.
To quote the Senior Counsel for the Criminal Law Policy Section of the Department of Justice Canada, Paul Saint- Denis, when given the specific example of a cultivator caught growing 600 plants for a compassion club: "It is a matter of illegal production. Already, the law is being broken.''
Our existence predates the federal government's program by almost five years. We are proud to have established and developed collectively the services, standards and procedures that other compassion clubs, including some in the United States, have modeled themselves on. In fact, we feel the quality of the medicine we provide and the support and services around this provision greatly exceed those of the federal program.
Therefore, I want to take this opportunity to give the honourable senators of this committee a little window into how cultivation happens in the compassion club context and how this cultivation translates into a safe, high-quality supply of medicinal marijuana for our 5,000 members.
We have 24 cultivators on contract that sign an agreement to provide exclusively to us. This part of our due diligence process helps us ensure there are no connections to organized crime. These cultivators agree to possible site inspection. To ensure affordable medicine to our members, our cultivators agree to prices below market value. Each strain we carry is lab-tested bi-annually for microbiological contaminants to ensure safety for those with compromised immune systems. Seventy per cent of our strains are organically grown, which is a more expensive growing method, with a smaller yield than chemical processes. Even those processes that are not fully organic use only natural predators and natural pesticides.
One-third of our cultivators have 10 years or more of experience in growing cannabis. Our most senior cultivator has 30 years of experience. The issue of expertise relates to the important issue of strain diversity, of which Health Canada's program has none.
While tetrahydrocannabinol, THC, is acknowledged to be the most active ingredient in cannabis, THC on its own has many uncomfortable side effects, and it is clear that the ratios of the other cannabinoids, as well as other constituents of the plants, such as the terpenes and flavonoids, play an important role in modulating therapeutic function and efficacy.
Each strain presents a different formulation of the cannabinoid ratios that allows us to predict its general therapeutic effects and thus meet the range of symptoms and needs of our membership.
Our cultivators provide our members with choice among approximately 80 strains in total. Many cultivators became breeders in order to keep a particular strain strong and have been keeping unique strains alive. When we lose the cultivator of a strain, we risk losing the very strain genetics that they are the keepers of.
What are the impacts of losing a cultivator? I will use an actual example from several years ago. For the sake of the example, I will call this cultivator Jim. When one of our most experienced cultivators had his facility shut down, Jim was producing what we would call research-quality product, which is 100 per cent organic. He had mastered the use of natural predators and perfected a microbiological tea for powdery mildew, the number one bane of most cultivators.
Jim was also one of our most compassionate cultivators. He supplied eight to ten pounds of medicine to us every two months in over eight strains at $500 to $600 below market value per pound. This supply permitted us to provide this research-grade medicine to our members at $7 a gram. Jim himself was disabled and had been using his proceeds to fund a camp for disabled children. Jim is not alone in being motivated by knowing that he was helping the sick and ill. Many of our growers make donations of medicine, time and money well above and beyond what our contract calls for.
After he was busted, he stopped producing. He was afraid of going to prison. He was in his 50s, and he was afraid of losing his land. At the time, he was supplying over 50 per cent of our indicas, the family of cannabis which has great medicinal and therapeutic value. That loss was transferred and felt by many patients for a long time until we could replace his contributions.
Jim's situation happened four years ago, well before talk of mandatory minimums for cannabis cultivation. There is plenty of talk now, however, and a real fear among our cultivators about how they will be impacted by this bill. Several of them have told us that they are thinking about getting out of supplying for us. These are people with families, afraid of going to prison. Many are property owners afraid of losing their homes.
We are deeply concerned that the loss of judicial discretion in the cases of compassion club cultivators will result not only in the traumatization of decent, compassionate people but will have the subsequent devastating effects for the thousands of members who rely on them for their supply of medicinal cannabis that is an essential or valuable part of their treatment.
Mandatory prison sentences for cannabis cultivation will seriously undermine the work of compassion clubs, which at this time we believe to be largely accepted and acknowledged by society as providing a valuable service. A Maclean's nation-wide poll in 20026 found that 92 per cent of Canadians approved of the medicinal use of marijuana.
While the pictures we have of compassion clubs are typically related to the marijuana itself, what is often easily overlooked are the value-added services we provide to the community. These services come in the form of advocacy and support in accessing social services, redistributing donations from many different sources, and free events through the year that contribute to the sense of community and place among our members. As well, we provide mental health services through counseling and the wellness centre, and also palliative care in caring for the many patients with terminal illnesses who become members.
I have been proud to serve the B.C. Compassion Club Society for the past seven years. Before I joined our communications department, I worked in front-line distribution for five years. During that time, I came to know many hundreds of members personally, and many of them shared their stories with me. Illness and disease strike across all social boundaries and all walks of life. In the struggle to survive and live with dignity, something heroic is called out of what seem like otherwise normal, average people. The number of people who have told me directly how cannabis was a key ingredient in their survival and their recovery is truly astounding. Many members shared stories about how they were able to use cannabis to reduce or wean from their use of prescription medications, which they had found much more powerfully addictive, with harmful side effects. Over and over, people told me about the difference cannabis made in their lives, in their ability to live with dignity.
Now, since we started to campaign publicly against the dangers of this bill, we have spoken to many members as well as to the public. Almost unanimously, they have urged us to speak out. I have here a petition we initiated in the past three months. I submit it to this committee in the hopes that you will read it and hear the concerns expressed and shared by all who have signed it. It is all our hope that the senators of this committee can play an important role in averting some of the tragic consequences for the most vulnerable that will be a consequence of the inclusion of mandatory prison sentences for cannabis cultivation.
Thank you for your concern for this matter.
The Chair: Thank you, Mr. Leung. I am receiving procedural advice on whether a committee is allowed to receive a petition. Pending the conclusion of that advice, on the assumption for now that we are allowed to receive the petition, I will ask you to file it with the clerk at the end of this proceeding.
Senator Nolin: One of us will table the petition in the Senate in your name.
Mr. Leung: We would be grateful.
Philippe Lucas, Founder/Executive Director, Vancouver Island Compassion Society: Honourable senators, clerks, members of the public, hello. I am the founder of the Vancouver Island Compassion Society. I am a graduate research fellow with the Centre for Addictions Research of British Columbia and a Victoria city counsellor. I am also one of about 4,000 Canadians authorized by the federal government to use cannabis for medical purposes.
My use of medical cannabis began in 1995 when I was diagnosed with hepatitis C. It turns out that, as a result of an operation in Ottawa in 1982, I had become a victim of Canada's tainted blood supply. Medical cannabis alleviates the nausea, loss of appetite and localized pain that often accompany hepatitis C. However, finding a safe and consistent supply has been a challenge for so many Canadians, so in 1999, I left a career in education as a high school teacher to open the Vancouver Island Compassion Society, VICS, a non-profit medical cannabis research, distribution and advocacy centre located in Victoria, B.C.
About 14 months after the VICS first opened its doors, we suffered a police raid, and I was charged with three counts of trafficking for the distribution of cannabis. Although the VICS reopened within 10 days, I spent the next two years in court fighting for my freedom and for the rights of sick and suffering Canadians. After hearing how the VICS has positively impacted the lives of its members, Provincial Judge Higginbotham granted me an absolute discharge, praising the work that was being done at the organization, saying:
Mr. Lucas enhanced other peoples' lives at minimal or no risk to society, although he did it outside any legal framework. He provided that which the Government was unable to provide a safe and high quality supply of marijuana to those needing it for medicinal purposes.
Since that happy day in the summer of 2002, the VICs has gone from a small dispensary on the western edge of Canada to an internationally recognized research centre that has become the template for responsible and effective patient-centred medical cannabis access around the world. In that regard, I have had a chance to advise a number of U.S. states on their medical marijuana program, and 18 months ago I was invited by the Ministry of Health of Israel to help them with their burgeoning medical cannabis program.
I share this story with you today to reflect that, had this bill that you are currently considering been in effect at the time of my arrest in 2000, all the wisdom and deliberation of Judge Higginbotham would have been for naught, and his words of praise ultimately would have meant very little, for he would have had no choice but to sentence me to a mandatory two-year prison term. This prison term would have affected my life and the lives of the thousand members of VICS in innumerous ways. It would have robbed my wife and I of our wedding in the summer of 2002 and of the subsequent birth of my daughter Sophie last year. It would have impacted negatively my ability to pursue my master's degree at the University of Victory, and it likely would have prevented my election to Victoria City Council in 2008, where my focus has been on harm reduction and ending homelessness. None of this events would have been possible under Bill C-15.
According to the Canadian addiction survey conducted by the Canadian Centre on Substance Abuse in 2004, over 1 million Canadians use cannabis for medical purposes, and yet just over 4,000 are currently protected from arrest and prosecution through Health Canada's marijuana medical access regulations, a federal program that has been found unconstitutional five times in as many years for overly restricting legal access to medical cannabis. When coupled with an ever-increasing national arrest rate for cannabis-related offences and the mandatory minimums proposed in Bill C- 15, we have a recipe for disaster that could impact tens of thousands of Canadian patients.
In an effort to control the cost and quality of their medicine, many of Canada's medical cannabis users currently produce their cannabis for, or share it with, fellow patients.
National cannabis enforcement efforts cast a wide net and will inevitably ensnare cancer patients, people living with HIV/AIDS, hepatitis C sufferers, and those affected by multiple schlerosis, epilepsy and chronic pain that benefit from the use of cannabis, as well as the employees of compassion societies risking so much to help them. As a result of mandatory minimum sentences, judges will be powerless to prevent the incarceration of critically and chronically ill Canadians who use cannabis to relieve their suffering.
In regard to diversion to drug courts, I ask this committee to consider how a person suffering from cancer or HIV/ AIDS who uses medical cannabis to relieve the symptoms of their condition or the side effects of treatment can possibly benefit by being diverted into a drug court program that specifically prohibits and subsequently punishes the use of this medication through incarceration. Perhaps more pressingly, how does our society as a whole benefit from a perhaps unanticipated but ultimately unavoidable persecution of critically and chronically ill Canadians?
I have often heard the Justice Minister defend this bill by suggesting that Canadians are supportive of laws addressing drug-related crime. However, the members of this committee will do well to remember that for the last 10 years, every national opinion poll conducted on medical cannabis shows that over 80 per cent of Canadians support medical access to cannabis. That is true across all provinces and party lines.
Although I have no doubt that Canadians wish to see a reduction in problematic substance use and associated crime, they deserve policies that will achieve this goal, and inexpensive and ineffective strategies that have been proven to increase judicial and incarceration costs, as well as the transmission of HIV/AIDS and hepatitis C with no associative reduction of drug-related crime, violence or addiction. In matters of such huge importance to both public health and public safety, it is imperative that we allow evidence to trump both ideology and public opinion, and in regard to mandatory minimums, the evidence is abundantly clear; they simply do not work. Extensive research conducted on mandatory minimum sentences throughout the world shows that Bill C-15 will not reduce substance use, will not reduce crime and violence, and simply will not make Canadians any safer.
In fact, Bill C-15 will debase every segment of society it touches, from the police officers saddled with the difficult job of enforcing these ineffective laws, to the judges forced to incarcerate otherwise law-abiding citizens and to imprison critically and chronically ill Canadians and those working so hard to help them.
Ladies and gentlemen of this committee, I assure you that there is no single bill you will consider during your term in office that has a greater potential to squander taxpayer funds needlessly, to lead to violations of both human rights and civil liberties, and to increase the spread of transmissible disease and unnecessary suffering than the bill before us today.
On behalf of critically and chronically ill Canadians and those who love them, I am here today to appeal to your logic, to ask for your compassion, and to urge you to please stop Bill C-15.
Thank you very much for your time and attention, and for your work on this important matter. I look forward to your questions.
[Translation]
Lynne Belle-Isle, Program Consultant, National Programs, Canadian AIDS Society: Good afternoon, and thank you for the opportunity to speak today.
[English]
I will speak in English. I only wanted to make my point.
Thank you for the opportunity to address you today.
The Chair: You can speak in the language of your choice.
Ms. Belle-Isle: That is okay. I speak for the Canadian AIDS Society, and on behalf of a coalition of more than 120 HIV/AIDS community-based organizations in Canada and, probably more important, I provide a voice for the 58,000 people living with HIV in Canada and those at risk.
I am trained as an epidemiologist; thus my interest in the HIV pandemic. I currently work as a program consultant, mainly on policy development, capacity-building with our member organizations and, more relevant for the purposes today, I conduct community-based research.
A few years ago, as part of a research project, I travelled across Canada to speak to people living with HIV/AIDS who use cannabis for medical purposes. We wanted to know what their knowledge was of the federal program that exists that makes it legal for them to possess cannabis for medical purposes. We wanted to know what the barriers were to access to both the federal program and to a source of cannabis for their medical use, because we had heard from them that there were difficulties in accessing both those things.
Basically, people living with HIV/AIDS use cannabis mainly to stimulate their appetite and to maintain a healthy weight, which helps their survival; to reduce the nausea and vomiting; to help them take their medication; and also to reduce the pain, mostly neuropathic pain, specific to HIV, which is difficult to treat with standard pain medications.
Current studies in North America show that about 14 per cent to 37 per cent of people living with HIV use cannabis for medical purposes to alleviate their symptoms. If you take a half point of those people, let us say 25 per cent as an estimate, that number would amount to 14,500 people living with HIV in Canada who currently use cannabis. That is an estimate. As Mr. Lucas reported, 4 per cent of respondents in the Canadian addictions survey indicated that they use cannabis for medical purposes. When we extrapolate that number to the Canadian population, it amounts to slightly over 1 million people.
Our federal program currently has just over 4,000 authorized people. We have major concerns about the Canadians who experience barriers to legally accessing cannabis for medical purposes, and the impact of this bill on those people. In my study published in the AIDS Care journal in 2007, only 26 per cent of people who reported using cannabis for medical purposes — these are people living with HIV — had managed to obtain a legal authorization from the government. This difficulty is despite the fact that the Canadian AIDS Society has been active in providing and disseminating information about the program. We have produced a series of fact sheets that include a step-by-step procedure on not only how to apply to the program but how to discuss this matter with their physician. We have given workshops to frontline workers in community organizations across the country to ensure that they are able to assist the people they serve with the application process. This difficulty is despite the fact that HIV is one of the accepted medical conditions included in Schedule 1 of the marijuana medical access regulations for which Health Canada's expert advisory committee found there was sufficient evidence to support its medical use; and this difficulty is also despite the fact that for physicians who care for people with HIV, the majority of them support the use of cannabis to alleviate their symptoms. However, they are still reluctant to sign the government forms.
With these factors in mind, I have concerns about the impact of the proposed bill, Bill C-15, and the impact it will have on the people who use cannabis for medical purposes who are having difficulty obtaining legal access through these barriers.
My study also shows that the average person living with HIV uses about 66 grams per month of cannabis for their medical purposes. That amount is just over two ounces, basically over two big baggies full. If a person were caught with that much cannabis on their person, I suspect they would be suspected of trafficking. I am concerned about the legal repercussions that would accompany that suspician. Mostly, I am concerned about the people living with HIV who are producing cannabis for their medical purposes. Again, my studies show that about 16 per cent of the respondents were producing cannabis for their own medical use, and about half of them had managed to obtain a licence to produce it legally. The other half had not. Under Bill C-5, these people would likely face a jail sentence, which concerns me.
Even when people have a licence to produce, there have been encounters with law enforcement. I sat on Health Canada's stakeholder advisory committee on medical marijuana while the marijuana access regulations were being amended. We were providing input into that process. We worked collectively; we worked hard to set up safeguards to protect people, especially people who had obtained their legal authorization, such as the creation of the photo identification cards and the creation of a 24-hour phone line that Health Canada offers for the police officers to verify the validity of a licence. Despite these safeguards in place, I still personally receive phone calls from people who had their equipment confiscated and their cannabis plants destroyed, even if they had a permit.
In the case of one gentleman in particular, who was quite distraught, his permit had run out two days previously. He was waiting for his renewal. He had a licence for five years; he was very ill.
The police came and he could not produce a valid permit because it had expired two days prior. They could not contact Health Canada, for whatever reason. He was handcuffed in front of his family for three hours waiting for contact.
They could not reach Health Canada. They confiscated his equipment and his cannabis, and destroyed his plants. It took months to settle. He finally had his equipment returned, but obviously not his plants. He had to start from scratch, and it placed a great strain on his health and his family.
With those situations in mind, I fail to see how Bill C-15 will provide protection to people with licences to produce. I suspect such unfortunate incidents will only increase.
Finally, stepping back from cannabis, I look at the bigger picture. Bill C-15 will place more people in jail for drug- related offences in general — people who are most likely to have a problem with substance abuse to begin with. We are talking mainly about the most marginalized people — people living in poverty with unstable housing or homelessness, people with mental health issues and other such social issues.
We can put our heads in the sand and pretend there is no drug use in prison, but we all know that is not the case. Unfortunately, most of the drug use in prisons relates to injection use because it is a quicker method of delivering a drug. It is easier to hide; it metabolizes through the system quicker and is thus less detectable on drug tests.
Unfortunately, as you hopefully know, people in prison do not have access to needle exchange programs. People tell me — and I conducted another study where I held focus groups across Canada, speaking to people who use drugs or have used drugs — that they had to steal needles from the health services, which they shared with their fellow inmates; or they improvised and made their own devices to inject themselves.
As a result of these circumstances in prison, there is 7 to 10 times more HIV/AIDS in federal prisons, and 30 times more hepatitis C than in the general population. You may think these circumstances in prisons do not affect the general community, but these people come back into the community, clearly. I do not have to tell you about the issue that HIV is, worldwide.
When people who have been in prisons come back into our communities, there are limited services to assist them in reintegrating into the community or in dealing with their substance abuse issues. They, therefore, resort to the life they knew before they were incarcerated.
When I held focus groups across Canada for another project, we wanted specifically to ask them about how harm reduction services, such as needle exchange programs, work for them — what works well, what does not. Do you know what the main thing was that they wanted to talk to me about? It was not about access to clean needles; it was about access to treatment.
It debunks the myth that people who use substances or who are struggling with substance abuse do not want access to treatment. They do. However, they do not want to be forced into treatment, and they want to be in a treatment that provides an environment that is conducive to their health and well-being.
With that said, I believe Bill C-15 is a step in the wrong direction. I urge you to consider carefully the consequences of this bill and, hopefully, do what you can to stop it.
The Chair: Thank you very much, all of you.
[Translation]
The Chair: We will move on to questions. Sen. Nolin, I know you have several questions.
Senator Nolin: I am prepared to go to the second round, but first, I would like to ask Ms. Belle-Isle for a clarification.
Ms. Belle-Isle, you worked at Health Canada from 1994 to 2002. For my colleagues' benefit, because the Government of Canada was supposed to make the medical marijuana regulations, were you involved in the process for making those regulations?
Ms. Belle-Isle: No, not at all.
[English]
Senator Nolin: Now, real questions; I want to talk about users and members — the membership of both of your societies — and then we will go into other questions.
First, because many Canadians who are watching us are probably saying: They are kidding; they are not real; what kind of members are they; and are they there for real reasons or are they disguised and there for recreational purposes?
Can both of you tell us how the memberships of your organizations are selected or accepted? I heard one of you talking about medical documentation. Can you explain to the committee how that documentation works?
Mr. Lucas: Absolutely; Last month, the Vancouver Island Compassion Society registered its one thousandth member. Over 10 years, all our members have a doctor's recommendation specifically for the use of cannabis. In other words, they all have their doctors' support for the use of medical marijuana. They also go through an extensive registration period with us.
During that registration, during the 35 minutes or 40 minutes that we spend with them initially, we teach them about the different types, the different strains that Mr. Leung alluded to, together with the different methods of injection. Many of the members do not smoke cannabis: they eat it; they take it through oil or other methods of ingestion.
It is worth mentioning that out of the 1,000 members we have at the Vancouver Island Compassion Society, we have doctors' recommendations from well over 350 local doctors. The medical community has been supportive of sending people to our quasi-legal organization.
On the other hand, and strangely enough, only a handful of those 1,000 members have the legal right to use cannabis through Health Canada. In other words, these same doctors that feel comfortable sending people to our dispensaries are not nearly as comfortable filling out the Health Canada paperwork. I think that reluctance is for reasons of bureaucracy; because of the stigma associated with being a doctor recommending medical cannabis; and a number of other reasons. Our members have the equivalent of what they would have as a prescription for any other substance they might use for their condition.
Senator Nolin: Is the situation similar in Vancouver?
Mr. Leung: Yes, we have a registration process similar to the Victoria club's. I can share statistics for the demographics of the membership we serve.
Senator Nolin: These statistics are if you are refusing members?
Mr. Leung: Members need their health care practitioner to fill out their application form and to submit it. Again, of our own membership, less than 4 per cent hold federal licences. Yet of the membership we serve, almost 20 per cent are people living with HIV/AIDS; 11.5 per cent of our members are cancer patients; 12 per cent of our membership is dealing with hepatitis C and hepatitis B; 10 per cent use cannabis for arthritis; and almost one quarter of our membership uses cannabis to relieve chronic pain.
The largest demographic that we serve, 42 per cent of our members, are aged 50 to 64, and a further 8 per cent are seniors 65 and up. These are the individuals that Mr. Saint-Denis in his testimony claims cannot be helped, and who will fall under the purview of this bill.
Senator Nolin: To enlighten the committee, if we compare the strains and the offer that both of you are providing to your memberships, how do you compare that offer with the offer of Health Canada? Is the cannabis only one strain? Is it a variety of strains? Why are there Canadians who can have access to legal marijuana not doing so, and instead, are going to one of your two institutions?
Mr. Leung: Poor quality and lack of strain selection —
Senator Nolin: What do you mean by poor quality?
Mr. Leung: There has been consistent feedback about Health Canada's product, which is supplied through Prairie Plant Systems,that it is of a consistently poor quality. Everything is ground up together. There is no removal of the buds from the stems and the leaf.
Senator Nolin: You mentioned 80 strains. How many strains are there in the federal legal access systems?
Mr. Leung: I do not believe they offer —
Ms. Belle-Isle: One.
Mr. Lucas: Health Canada offers one single strain and one method of ingestion. They send ground cannabis to people's homes with no instructions on how to use it other than smoke it — the obvious reason.
At dispensaries like the British Columbia Compassion Club Society and the Vancouver Island Compassion Society, we make an oral mucosal spray available. People can use it sublingually. We make oils, tinctures and edibles as well. We found at the Vancouver Island Compassion Society that people over 65 years of age tend to tolerate edibles much better than smoked products.
These options are not available if they are part of the Health Canada program. Additionally, we help people with end of life. In this year alone, I have completed six bedside registrations of people dying in hospice, in hospital or in their home. It can take 8 to 20 weeks for Health Canada to process an application through their program. If they have been given two months to live, as is often the case, it is physically impossible for those people to use medical cannabis legally at the end of life. They simply cannot be covered by our federal medical marijuana program.
I do not think this committee has been made aware of the current situation where less than 20 per cent of people in the federal program order their cannabis from Health Canada. Approximately half have the right to produce their own and about 30 per cent access it knowingly through the black market or compassion societies. Of the people who order their cannabis from Health Canada, 1,400 of those 4,000 users in the program owe Health Canada for that cannabis supply. They have either chosen not to pay for it or are not able to pay for it. As a result, Health Canada is owed almost $1.5 million by federal program cannabis users. Health Canada has cut off 636 people from accessing that supply of cannabis, which is Canada's only legal supply of medical cannabis. Those people are forced back onto the street, or they are forced to suffer without support.
The Chair: How do your prices compare with Health Canada's?
Mr. Lucas: Our prices range from $6 to $9 per gram for cannabis. Health Canada's cannabis is approximately $5 per gram plus tax and delivery. We do not charge tax on our supply.
The alternatives we supply — oils and tinctures — are made in-house. They are also lower cost alternatives to smoked cannabis even through the black market. A bottle of our oral mucosal spray, which contains 400 sprays, might last a patient two weeks, and is about $10. The Vancouver Island Compassion Society also gave away, as a non-profit, $10,000 worth of cannabis last year. Each of our members is eligible for a donation each week. Many of our low income users take advantage of that donation weekly.
The Chair: We have scheduled an unusually long time with you, but it is not infinite.
[Translation]
Senator Nolin: That is why I put myself down for the second round of questions.
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The Chair: We have to keep both our questions and our answers tight.
Senator Campbell: I do not know why you are surprised. This is a government that cannot produce nuclear isotopes. Why would you think they can grow medical marijuana?
Does anyone know how many people are charged every year that are suppliers to compassion societies?
Mr. Tousaw: I do not have a figure. However, my practice is, by and large, defending persons accused of violating cannabis laws in this country. A substantial portion of my practice is persons who produce marijuana for others for medical purposes or for themselves for medical purposes, or they possess it for medical purposes. Charges are not uncommon. I receive calls weekly from people who have run into trouble with law enforcement either because of their production or use or medical cannabis.
Mr. Lucas: I have published on and researched medical marijuana in Canada extensively. There are about 15 well- established dispensaries in Canada. About half of them have been a victim of some kind of police enforcement. They have been charged with production or distribution of cannabis.
Senator Campbell: In general, what are the results of those charges?
Mr. Tousaw: On behalf of my clients, I have had some significant successes. I mentioned the case of Mr. Beren receiving an absolute discharge for his production.
It is not uncommon currently for those charged to go to court. Typically, they enter a guilty plea if they are a medical cannabis producer for themselves or others. They submit the facts at sentencing hearings. The hearings are an opportunity for the judge to view the circumstances of the offence and the offender. It is common to receive either absolute or conditional discharges.
This legislation absolutely and completely takes that judicial discretion off the table. The maximum penalty for production goes from 7 years to 14 years, making these offences no longer eligible for discharges. That situation does not even take into account the impact of the mandatory sentences.
Mr. Lucas: No legitimate dispensary in Canada has ever been successfully prosecuted. This situation will change completely under Bill C-15.
Senator Campbell: You had one person who was charged with producing 1,000 plants.
Mr. Tousaw: Yes, that is correct. It was Mr. Beren.
Senator Campbell: That is a lot of plants.
I am trying to make sense of this situation. I think this bill is stupid. Marijuana should not be in this bill. It is here simply because we have not recognized that marijuana is a lot healthier than OxyContin or Percocet, which are commonly used.
Mr. Tousaw: Or alcohol.
Senator Campbell: To be a successful grower, what is the minimum number of plants they can grow to supply their client?
Mr. Tousaw: We have to put the situation in context. One thousand plants sounds like a lot of plants. In reality, I represent people all the time charged with growing more than 1,000 plants. That number is literally a drop in the bucket in terms of the marijuana produced in this country. Remember that Canadians alone consume between 6 million and 10 million grams of marijuana every week in this country. We enjoy cannabis.
We also need to put into context that 400 people were receiving Mr. Beren's cannabis. That number breaks down to approximately 2.5 plants per recipient. Economies of scale come into play. These plants were grown in one outbuilding — not a large outbuilding — on a rural property. While one thousand plants seems like a large number, it is not a big number at all in the context of marijuana production.
Senator Campbell: Should we even put a number on it?
Mr. Tousaw: No; I think putting numbers on plants is frankly an exercise in absurdity. We will end up spreading out the marketplace. If non-medical people know that they will be subject to a three-year sentence for growing 1,000 plants, or nine months for under 200 plants, they likely will set up five locations and grow 199 plants in each. We will see a proliferation in the number of marijuana production facilities throughout this country.
That result is exactly the opposite one that we all want to achieve, which is to move these production facilities out of suburbs and basements. Let us grow these plants where we grow all other plants; on farms and in greenhouses. Then, we do not have to worry about the problems allegedly associated with marijuana grow operations.
Mr. Lucas: Mr. Beren, at the time he was arrested, was the sole producer for the Vancouver Island Compassion Society. He was the sole supplier for 400 members. As a result of that raid, we now have six different suppliers scattered throughout Vancouver Island and the Gulf Islands supplying our membership. In other words, we have gone from an easily managed sole production facility to six facilities, which is far more challenging to manage. To put the situation — those two and a half plants per person — into context, as a legal medical cannabis user in Canada, I am licensed to produce 49 plants for myself. The 49 plants I am licensed to produce through Health Canada pales in comparison to 2.5 plants that Mr. Beren was producing for our members.
Senator Campbell: I suggested to Sgt. Chuck Doucette, when he appeared before the committee, that thirty plants is considered personal use in British Columbia.
Mr. Tousaw: I think that number is a decent rule of thumb. If this committee is to pass this legislation — and I urge it not to — the best measure to take to protect medical marijuana users, providers and distributers is to add an exemption taking medical marijuana not only out of mandatory minimum sentences, but out of the Controlled Drugs and Substances Act, CDSA, entirely. In that case, we can still have prohibition of marijuana to the extent it is needed or wanted — I do not think it is needed or wanted. At least we will not jail, arrest and incarcerate people who are growing and distributing cannabis for compassionate purposes and to help people struggling with illness.
Senator Campbell: Would they have a licence?
Mr. Tousaw: The problem is that the government's medical marijuana system is inaccessible. Of the medical marijuana users in this country, 99.5 per cent are not protected by the government's regime.
Senator Campbell: However, they have a prescription from their doctor, do they not?
Mr. Tousaw: Most do, yes.
Senator Campbell: There must be some rules.
Mr. Lucas: Thirteen states have legalized medical cannabis use, including California, which has tens of thousands of dispensaries. The State of Oregon has an affirmative defence program. That means that, if someone is arrested for use, production or distribution of cannabis, the charges are dropped, providing they can prove in court that it was for medical purposes.
Oregon also has a state-run medical marijuana program that is an interesting comparison with our own. It started in 1999, is centrally run and people need a doctor's recommendation to join the program and yet the program has registered 20,000 people, with one-tenth the population of Canada, in the same period of time that we have registered 4,000 people. I think the comparison illustrates some of the problems with our own federal bureaucracy and program in regards to medical cannabis. It also gives us an idea of what can and should happen in our federal program.
Senator Joyal: Thank you for your testimony.
I listened carefully to Mr. Tousaw and Mr. Lucas. I was left puzzled because you argue in your presentation that many of your customers, or the people with whom you are in daily contact, will find themselves in prison if this bill is passed and implemented.
However, the Commissioner of the Correctional Service of Canada testified in front of us on November 19. In his presentation, and afterwards, as well, he stated the following: "At this time we do not have any data to assess whether there will be a direct impact on Correctional Service of Canada's population levels.''
We asked him questions. I personally asked him questions. I said that was strange, because, this bill's impact is to put people in prison. The gist of the bill is to impose mandatory minimums and there are sentences in the bill that are longer than two years, as you saw. The bill should have an impact.
His answers were elusive, to use a diplomatic word. He did not want to commit himself to saying that the bill would have a financial impact on the number of people in prison, and he was elusive as to the costs this bill would entail.
In our own experience and in view of his answers to us that he cannot measure a significant increase in inmate populations after that bill is implemented, what is your own answer to that conclusion from the commissioner?
He is a responsible person. He is the head of the federal penitentiaries of this country.
Mr. Tousaw: The point of the bill is to jail people, and the point of the bill is to jail people for periods of time in excess of the time in which they would receive provincial sentences; in other words, a sentence over two years is a federal sentence.
It boggles the mind to think there will not be an impact on the costs associated with the correctional system. We see from the experience of the United States that their regime of mandatory minimum sentences have, in effect, bankrupted their prison systems, while also leading to conditions of incarceration that are, in my submission, inhumane and in violation of people's human rights.
Ms. Belle-Isle talked about there being seven times the rate of HIV within prisons versus the general population, and thirty times the rate of hepatitis C. There is violence in prisons. Prisons are recruiting grounds for gangs. Prisons do not teach inmates how to reintegrate into society. Prisons teach the opposite.
In my submission, we should be look for ways to keep people out of prison, not to put them there. However, perhaps the suggestion that this bill will not affect the budgets of the Correctional Service of Canada was not the witness's intent. Perhaps it was to say that they do not have data.
Putting people in prison will, of course, cost money.
The Chair: In fairness to the commissioner, I think he meant that he did not have hard data and was unwilling to hazard an informed guess.
Mr. Tousaw: Much in the same way the Minister of Justice did not have any hard data.
Senator Joyal: I will quote his answers. When he said he had data, it was in reference to Bill C-25. He had that data but he did not want to release it. However, on this bill, he did not have the answers. I remember well the arguments I had with him. I said, "If you state this and, after two years of review, we come with the figures, then your credibility will be at stake.''
I do not want to argue with the chair. That is not the purpose. I am trying to understand the impact of this bill on the inmate population.
Mr. Lucas: When this bill was formerly called Bill C-26 and I had a chance to testify in front of the House of Commons on that bill — the bill is largely unchanged, as you all know — the justice minister of British Columbia at the time estimated the bill would lead to 700 more imprisonments per year. The minister also estimated and made public comments that it might mean the need to build extra prisons because our prisons are already overloaded.
Additionally, the minister had concerns this bill would displace more violent criminals. In other words, we would put nonviolent drug offenders in jail cells that might better serve more violent criminals. I have no doubt this bill will have an impact, and that was the testimony of our justice minister at the time; those were his public statements.
Senator Joyal: I have another question for Ms. Belle-Isle.
[Translation]
You testified about the number of inmates who might have HIV/AIDS or hepatitis C. Do you have an exact number in the inmate population in federal prisons right now? You mentioned a figure of about 20 per cent of inmates who might be infected with HIV/AIDS. Can you be more precise about those figures?
Ms. Belle-Isle: I do not think I referred to 20 per cent. The figure I was given comes from the Correctional Service of Canada. They report that in federal prisons there are seven to 10 times more HIV/AIDS cases than in the general public and there are 30 times more hepatitis C cases. That is really the only figure I have at this time. It comes from the federal government, from Correctional Services.
Senator Joyal: Can a person with HIV/AIDS or hepatitis C use marijuana in prison if their doctor prescribes it?
Ms. Belle-Isle: No, absolutely not, unfortunately, no. There are cases where we have tried to defend the rights of people to be able to do it in prison, but it was not approved. Instead they are given synthetic products, THC pharmaceuticals, that people do not much like. As Jeet-Kei Leung described earlier, when it is pure THC without the other cannabinoids the plant contains, it produces unpleasant effects. You get more excited, more anxious. It is nothing like the plant, when it is the whole plant. No, they may not smoke in prison at all. So people have a tendency to use illegal substances, we are not talking about medical cannabis, they use injection drugs instead because they really cannot smoke in prison, regardless of the substance.
Mr. Lucas: It is not just the smoke. We are trying to defend an inmate who could have used marijuana legally, and the cookies were not allowed in prison either. It is not just smoking, you are not entitled to marijuana one way or another in prison.
Senator Joyal: And that has been challenged in the courts?
Mr. Lucas: Absolutely. Mr. Conroy has argued one or two cases on that.
Senator Joyal: How many help centres are there for people authorized to use medical marijuana in Canada?
Ms. Belle-Isle: About 15.
Mr. Lucas: You're talking about compassion clubs?
Senator Joyal: Yes.
Mr. Lucas: There are about 15 established compassion clubs.
Mr. Lucas: In Vancouver, for example, there are three or four, two in Victoria, at least two and probably three in Montreal, about three in Toronto, but none are legal. All the work done is not regulated by Health Canada or the federal or provincial governments.
Senator Joyal: Could they be prosecuted?
Mr. Lucas: Yes, absolutely. I was arrested for distributing medical marijuana in my compassion club. Nearly half of these clubs have had arrests by police.
Senator Joyal: In your assessment of this bill, you conclude that if, as you said in one or your earlier answers, in prosecutions against the clubs, no prosecution has been successful. You believe that if this bill is passed as it stands, most of the clubs could be at risk of police action, seizure and prosecution?
Mr. Lucas: The day after the bill is passed, if the police show up, there would be a three-year minimum sentence for Mr. Leung and his employees because a school has just opened a few blocks from their establishment. The same would be true for my employees. The talk is of a mandatory minimum sentence of two to three years . No judge could decide that and that would be an end of it. When you realize that their club produces marijuana for 5,000 people, our club produces it for 1,000 people, already there are more people just in Victoria and Vancouver than in the entire Health Canada program in Canada. That is a major impact.
[English]
Mr. Leung: It is true that we have been at our location on Commercial Drive and 14th Avenue in Vancouver for 11 years, and a school opened kitty-corner from us about four years ago, with whom we have a good relationship. They have toured, and we have shown them around, and we have good communication. We are concerned about what impact this bill will have on us with this school across from us.
In addition, there is a related issue in terms of the inclusion of clone cuttings into the count of plants because the cuttings are not producing plants. They are not productive plants, but they are necessary to sustaining the crop. If they are included in the count, then 80 per cent of our cultivators will fall into the 200-plus plants category, and to the minimum sentence of at least one year.
Senator Wallace: Mr. Tousaw, I have a short supplementary question. Obviously, you have a lot of concern about the implications from the point of view of compassion clubs. The federal Minister of Justice and provincial Attorneys General have had many concerns about the drug trade, drug production, drug trafficking, importation and exportation. As I understand it, Bill C-15 is the result of many years of discussion and consultation between all the provinces and the federal government. My understanding is that the ministers of justice from the provincial governments support Bill C-15 and, in particular, the Minister of Justice from British Columbia. Are you were aware of that support. You had comments about the implications that the bill could have to the administration of justice in British Columbia, but the minister seemed supportive. Are you aware of that?
Mr. Tousaw: I am aware of that. I am also aware that you had senior Crown counsel testifying about the effects on the ground in terms of their workload, the backlog of cases, the length of trials, denial of bail and reverse onus provisions. It is easy to understand why elected officials will support this bill. One of the speakers from a group called Law Enforcement Against Prohibition said the war on drugs is not winnable, but it is eminently fundable, and it is something politicians love to run on.
The reality is that if these people looking at the evidence are thinking people, they know that this bill will not affect the drug trade in British Columbia, in Canada, or in the world. The bill simply will not affect the drug trade. The evidence is not there in all the evidence that we have from every other jurisdiction that has tried this legislation. The United States legislation a lot stronger than the legislation we are planning, and yet there is still a drug trade in the United States and lots of drugs on the streets. In 2008, the percentage of high school seniors in the United States who reported they could obtain drugs fairly easily or very easily was astounding: 83.9 per cent can obtain marijuana easily or very easily, 47 per cent, amphetamine, 42 per cent, cocaine, and 35 per cent, crack.
This program of interdiction, attempted supply reduction, does not work. All the witnesses before you have said the only things that work in terms of dealing with problematic substance use are treatment and prevention. Yet, this government is willing to spend a lot of money prosecuting, policing and locking people up.
I read the other day that another rehab centre in British Columbia has been closed, this one serving the north of British Columbia. Teens with substance abuse problems now have to travel hundreds of kilometres for treatment. It is the wrong way to go, and anybody who looks at the evidence knows it.
The Chair: Senator Wallace, I will put you down for a main round, if you wish, but we are on supplementary questions on Senator Joyal's time. Senator Nolin has a supplementary question, and Senator Campbell has a supplementary question.
Senator Campbell: Mine is not supplementary.
Mr. Lucas: Senator Wallace, I am an elected official. I poll public opinion on a number of issues on a regular basis. It is important and key that we poll people, but when it comes time to making key decisions on legislation that will affect Canadians as significantly as this bill, we have to look at the evidence base. The bill simply cannot be based on the opinions of the justice ministers of relative provinces.
In regard to one of the questions posed by Senator Joyal about statistics, we need to look at the evidence. We cannot be selective on the statistics. We need to look at the totality of evidence. To truly make an evidence-based decision on Bill C-15, you simply cannot support this bill; not based on what you heard and know so far.
Senator Nolin: One of you referred to the maximum penalty of 14 years, and how the bill would prevent your client, Mr. Beren, the sole provider for Mr. Lucas' group, from an absolute discharge. Can you explain how the bill will prevent that discharge?
Mr. Tousaw: The eligibility for discharge is under the Criminal Code. Those charged can be disentitled to discharges based on the maximum length of sentence.
Senator Nolin: Are you referring to section 730(1) of the Criminal Code?
Mr. Tousaw: I think I probably am, although I have never been good with numbers. I saw several people walking in with the heavy black books, and I leave it to them. They are disentitled. If they are charged with possession for the purpose of trafficking over three kilograms of marijuana, the charge carries a 14-year maximum and they are not entitled to a conditional discharge. If they are charged with production, the penalty is a seven-year maximum and they are entitled to seek. Once we have mandatory minimum sentencing, people are disentitled from discharges simply because of that minimum. If this bill goes forward, I urge you to craft an exemption for medical marijuana producers, distributors and patients, because otherwise the two gentlemen to my left could be facing jail for a long time.
Senator Joyal: The bill also deals with trafficking and importing. I understand why, because of your role, that you addressed mainly production. Do you have any comments on the section on trafficking and importing?
Mr. Tousaw: I do. The reality is that this bill will not affect the sentencing for importing quantities of drugs into Canada. It will simply not affect importing. The law is already there. Judges regularly hand down lengthy terms in prison for importing drugs into Canada. I heard the Minister of Justice talk about how this bill targets the high-level organized criminals that use violence and prey on Canadian society by importing poison into our country. I have heard that view ad nauseum. It takes about five minutes to search a free database called CanLII to pull up reasons for sentencing on importing cases to see clearly — R v. Canyon, 2009, Manitoba Court of Queen's Bench 280, trafficking PPT, cocaine and ecstasy, 40 kilograms of cocaine, 12 years; R. v. Marchesi, 2009, ABCA 304, trafficking PPT, cocaine, seven grams of cocaine only, no criminal record, three years incarceration; R. v. Lee, conspiracy, trafficking marijuana, 27 months in prison; and R. v. Smith, cross-border trafficking, six years in the penitentiary — there are not high level importers of drugs into this country being sentenced to two slaps on the wrist. That does not happen. It is not happening. This bill does not affect the sentences that will be handed out to high-level drug dealers. It will catch only the low hanging fruit, the very people we hear this bill is designed not to target.
Mr. Lucas: In fact, it will divert necessary resources away from the importing and trafficking by adults to youth. These are the concerns when Canadians talk about concerns around drugs and drug-related crime, which I suggest are more prohibition-related crimes. The importing into Canada and the trafficking of adults to youth is absolutely where we should direct our police resources and absolutely what we should be concerned about, but unfortunately that activity is not what will be targeted. We know that from our current arrest rates in Canada where 50,000 cannabis users are charged with personal possession every year. We know that from our police arrest statistics. If we want to target that activity, then we need to change this bill considerably so that it focuses on importing or trafficking of adults to kids. Otherwise, it will draw away resources that are desperately needed, as you heard from our police services right now, who are short of staff and resources.
We need to be able to direct those resources to the areas that matter to Canadians, and those areas are the ones that matter.
Senator Milne: Ms. Belle-Isle, you said that doctors are reluctant to sign medical use application forms. Why are they reluctant?
Ms. Belle-Isle: That is a good question. I can speak only on what the people living with HIV have told me. I have not spoken directly to physicians, except for the few who happen to be on the stakeholder advisory committee with me.
From what people tell me, physicians are reluctant because they are often concerned about liability. They do not feel they have enough information on cannabis as a "drug'' because it is not an approved drug. It is a herbal medication of which they do not have much information.
They do not feel they are informed well enough to provide advice on dosing, and on how to use cannabis. The discussion becomes one between patient and doctor, based on the patient's experience using cannabis for medical purposes and a decision between patient and doctor.
As Mr. Lucas pointed out, and people told me this while I was conducting the focus groups, physicians seemed to be more likely to sign or provide a letter of diagnosis, which is what it comes down to, to state a symptom or a reason why a person might obtain benefit from the use of cannabis, as opposed to prescribing cannabis, because they can prescribe only an approved drug and cannabis is not one at the moment.
These issues are liability issues. Also, the Canadian Medical Protective Association, which is the body that insures physicians, had taken a strong stand against physicians participating in the program, and have designed a kind of a waiver that alleviates the responsibility of the physician and protects physicians from liability charges. The patient can take that waiver to their physician asking that the physician be free of all responsibility and that the patient take the responsibility for using cannabis as a medical treatment.
Senator Milne: Mr. Lucas, you say there are 400 physicians who are actively sending people to you?
Mr. Lucas: There are 350.
Senator Milne: They are not sending them to you with a prescription but with a recommendation that cannabis may work.
Mr. Lucas: That is absolutely right. We have to go back to the dawn of this program. When Health Canada established this program, the Canadian Medical Association, provincial medical organizations like the British Columbia College of Physicians and Surgeons of British Columbia and the Canadian Medical Protective Asociation, which insures 95 per cent of doctors in Canada, all made strong statements against being the so-called gatekeepers of this program. They continue in policy statements to state that they do not want to be the gatekeepers of this program. They do not see that role as appropriate for them. Unfortunately, there is no other obvious group to take responsibility for that approach. We know that cannabis is a medicine. The medical community has to take some responsibility for the program, but because it has not gone through the checks and balances of other traditional pharmaceuticals, there is concern about that situation.
My gastroenterologist filled out my form — I am a legal user — as did my general practitioner. He has been clear. He said, Do not tell anyone I have filled out your form; I am not filling out any other forms; I am not comfortable with the process.
I think the 33-page application, and the yearly renewal that has to be done after that, creates a level of discomfort amongst physicians because this treatment is dissimilar to every other drug prescription process they go through. Doctors have never been polled specifically about why they will not fill out those forms, but it is clear that many of them will not.
Mr. Tousaw: The waiver form that Ms. Belle-Isle indicated that was put out by the CMPA for the benefit of our Quebec physicians is ineffective in Quebec because under the Quebec code, they cannot pre-release medical liability.
Senator Milne: So it is only a piece of paper.
The Chair: That is under the civil code.
Mr. Tousaw: That is correct. The waiver is ineffective in the province of Quebec.
Senator Milne: Ms. Belle-Isle and Mr. Lucas, what sort of oversight do you have of your producers to ensure that they are supplying only you and not recreational users?
Mr. Leung: When cultivators sign a contract with us, they agree to a possible site inspection. They also submit hydro bills so that we can compare the amount of power used with the yield that they supply to us, and ensure there are not large discrepancies.
Senator Milne: Do you have a certain backlog of experience that tells you, if they use so many kilowatts per month they will have so many plants?
Mr. Leung: That is right.
Mr. Lucas: To add to that experience, the site inspection is a good way to provide some of that assurance. As Mr. Leung suggested as well, our organization performs tests for heavy metals, biological impurities and cannabinoids to ensure some purity and quality control of product, but most important, all these producers could supply the black market and make a much greater profit if they chose to. In other words, they choose to grow cannabis specifically for distribution to critically and chronically ill Canadians. They do so because it gives them a sense of worth, a sense of social capital and community-building, and a sense of pride in the work they do. They grow for medical use because they choose to. If they ever chose to go to the black market, they could make more money there.
Senator Milne: What is the difference in price?
Mr. Lucas: The difference in price right now in B.C. for triple A organic, as we call the highest grade of organic cannabis, probably goes for about $2,800 to $3,000 a pound right now, in Victoria and Vancouver. The Vancouver Island Compassion Society will pay between $2,000 and $2,400 a pound for it. We are talking about a 30-per-cent reduction in many cases, and that 30 per cent is a pure profit margin.
Senator Nolin: Senator Milne introduced the question of production. What is the link between your institutions and the bill, and the production and the new sentences for production, which is the key?
You have alluded many times to the fact that medical grade marijuana is 70 per cent organic. Therefore, let us go back to Mr. Beren. Mr. Beren was producing all the substance for the Vancouver Island Compassion Society in Victoria, Mr. Lucas' institution. Was Mr. Beren producing one strain, or how many strains? Was the marijuana organic? Was it also available for the recreational business?
Mr. Tousaw: The plan for the VICS —
Senator Nolin: I keep going back to Mr. Beren because it is a public case.
Mr. Tousaw: It is a reported decision.
Senator Nolin: It is reported; everyone can read about it. I do not want to go into detail on any of your other producers who may not want their names cited publicly.
Mr. Tousaw: I will provide the committee with the reasons for sentence because those reasons are not publicly reported. I have them and I will provide them to the committee.
Senator Nolin: Please do; we need them quickly.
The Chair: Do you have them with you now?
Mr. Tousaw: Only in electronic format; I am happy to email them to Ms. Richardson. I have my BlackBerry, so I can probably send them as we sit here.
Mr. Beren was producing only for the Vancouver Island Compassion Society. At the time of arrest, he had about 15 different strains in production. He had about 50 different genetics that he was sustaining in mother plant form.
Cannabis is grown, like a lot of plants — apples, for example — not traditionally by seed but by clone to preserve the genetic typing of the strain. They keep mother plants that they take cuttings from. Mr. Beren had about 50 different strains, plus a hemp placebo that he was growing at the production facility, all for the use of the members of the VICS. He was paid $30,000 a year on a salary basis to produce the cannabis, which is obviously significantly less than he could have earned on the black market.
One thing that Mr. Leung talked about that was tragic in the arrest is that they lost all those genetics. They lost the ability to continue the research that was ongoing about which strains worked well for which symptoms because the police destroyed all the plants.
Therefore, we have a situation where not only —
Senator Nolin: Without notifying Mr. Beren? The Controlled Drugs and Substances Act still applies to Mr. Beren.
Mr. Tousaw: Absolutely.
Senator Nolin: Why was he never informed that they were destroying his property?
Mr. Tousaw: When the police raid and arrest cultivators, they tend to chop down all the plants before they leave the premises.
Senator Nolin: That provision is not in the bill, but that is probably a debate for another day.
Mr. Tousaw: You heard Mr. Lucas say they have six suppliers. Now they have growing production facilities in a number of different locations, as opposed to one location, one provider, easy oversight, easy monitoring and all organic production. Production is now diversified. I think that direction is the wrong one.
Mr. Lucas: For the five years prior to the raid, we had tried to develop strains that were specific to certain symptomatology. One specific strain was to address chronic pain, which is one of the biggest factors in terms of symptoms, if not the primary illness that people see us with.
The only reason I mention it is that we lost, as Mr. Tousaw suggests, all of that research in one afternoon. It is literally the equivalent of someone going into your office while you are here today and taking all your equipment, your files, everything you have worked on, and for it to disappear - not for a month or a year, but forever. Five years of research and genetics were gone.
As Mr. Tousaw also suggested, we were growing, and ultimately were charged with growing, non-psychoactive hemp. We were growing hemp because we had ethics approval for a double-blind clinical trial on smoke cannabis and chronic pain. We needed a hemp placebo to conduct that double-blind trial so that people would not know if they were smoking hemp or a high-THC strain of cannabis. Ironically, those plants showed up in the charges as well.
It is also worth noting we were growing some of Health Canada's strains to see if we could do a better job than Health Canada — or at least see how it turned out.
Senator Nolin: Probably Ms. Belle-Isle will be able to answer, but Mr. Lucas and Mr. Leung can jump in. Regarding the chronic pain area of symptoms, is it covered by the Medical Marijuana Access Regulation, MMAR?
Ms. Belle-Isle: When you look at the MMAR, there are two columns. One is the diseases and the other is the associated symptoms. For HIV, I believe pain is under there, but also for —
Senator Nolin: One moment please. You know a lot about your subject but we do not. What you are saying is first, someone needs to be identified through a disease and then they go into the symptoms. Is that right?
Ms. Belle-Isle: I would not say it is an either/or situation. It is both at the same time.
Senator Nolin: One plus?
Ms. Belle-Isle: Yes; for a person living with HIV, there are many symptoms associated with HIV, pain being one of them. If they are a person with severe arthritis, the symptom associated with that condition is pain; lots of grandmothers enjoy that.
Senator Nolin: There is one symptom most Canadians understand, which is pain. Chronic pain is what, compared to pain?
Mr. Lucas: Chronic pain is a pain that does not respond well to traditional treatments. It is associated with a number of conditions — often, as Ms. Belle-Isle said, it is associated with neuropathic pain. People with multiple sclerosis, people who suffer a neuropathy through conditions like fibromyalgia and HIV/AIDS suffer from chronic pain.
Senator Nolin: Those diseases are all covered by the MMAR. Why are Canadians not going through the MMAR?
Mr. Lucas: One caveat I suggest is that if they have HIV/AIDS or MS and suffer from chronic pain, they are in category one and they can access the program with a simple doctor's recommendation. Category two sets up a slightly higher hoop to jump through, which is, they also need the consent of a specialist. With my hepatitis C, my gastroenterologist has to be in support of my use of cannabis, and/or my general practitioner.
Ms. Belle-Isle: Can I clarify? The program no longer requires a signature of that said specialist. The physician who signs the form must say only that he or she has consulted with a specialist.
Senator Nolin: Mr. Tousaw, you keep talking about the amendment that we can make. Do you have any suggestions?
Mr. Tousaw: I will provide that suggestion electronically. I am happy to provide it. I have several suggested amendments that might ameliorate some of the negative consequences of this bill.
Senator Nolin: How fast can you send that suggestion?
Mr. Tousaw: I can send it this evening.
If I can add to this point, I do not want to create more confusion about the MMAR, but let us be clear about something; if someone suffers from chronic pain as a result of arthritis, their general practitioner can sign their application forms and they do not need to consult with a physician.
If they suffer from chronic pain as a result of migraines, they are in a different category. They must see their general practitioner and they must also consult with a specialist; then their physician must make certain declarations about that consultation. It is a mixed bag of symptoms.
At the end of the day, they can obtain medical marijuana in this country provided they have physician support for any condition and any symptom, as long as they are able to jump through the hoops that have been put up by the federal government. Theoretically, they can obtain medical marijuana for stubbing their toe and the pain associated with that condition if their general physician and specialist will support that.
Of course, we see from the testimony that they do not even support applications for HIV/AIDS, so it is clear that will not occur. However, I wanted to be clear about the breakdown of the two categories.
The Chair: Senator Campbell, if you do not mind, Senator Rivest has not put a question yet and he wants to.
[Translation]
Senator Rivest: I would first like to congratulate you. I am impressed with the quality of your work. I agree with Senator Campbell. I think this bill is nothing but a political parade, but the human consequences and the consequences for the judicial system are significant.
Mr. Tousaw, you told Senator Nolin that you were preparing some amendments. You are already in a kind of legal flux, where you risk prosecution as the law now stands. In legal terms, sentences will be longer and there will be more danger for you and the people who work for you.
Given that the status of compassion clubs is still not defined, how can we make an exception, in this bill, to protect you? I assume that your group and other organizations that have done the kind of remarkable work you do have been working on this.
How is it that we are not able to give you a legal status that would solve many of the problems?
[English]
Mr. Tousaw: I wish I knew the answer to the second question. Various courts that have considered the constitutionality of the medical marijuana access regulations have urged the government to look carefully at the issue of regulating what the courts have called the "network of unlicensed suppliers'' traditionally supplying medical marijuana users. For example, the Ontario Court of Appeal in Hitzig v. Canada, which struck portions of the MMAR, suggested that when the federal government went back to the drawing board, it ought to consider licensing these compassion clubs. The government chose not to take that measure — I think with tragic consequences.
To protect groups, I argued before Justice Koenigsberg that the Controlled Drugs and Substances Act needs an exemption for the production, distribution and possession of marijuana intended for medical purposes. Our law currently contemplates general and specific intent crimes. This bill contemplates specific intent crimes in the area of cannabis production. In other words, producers are not subject to the mandatory minimum unless the production is for the purposes of trafficking.
In my respectful submission, it is not all that different to exempt from the auspices of this bill, and from the CDSA entirely, marijuana produced or distributed for medical purposes. That exemption does not solve all the problems. People will still be arrested. It will solve the main problem, which is that people who possess, produce and distribute medical marijuana will no longer have their section 7 Charter rights — liberty and security of the person — implicated by potential convictions in a criminal court.
The degree to which organizations like VICS and BCCCS, which operate transparently and openly, seek legitimacy will be the degree to which the organizations avoid police contact. Exemption does not take tools away from the police or prosecutors. It creates a more compassionate and fair framework to protect groups like these two organizations that perform good work.
Mr. Lucas: Politicians have considered putting forward bills to add to the legalization of dispensaries. Libby Davies, Member of Parliament for Vancouver East, has been one of the main supporters of these dispensaries. We hope to see action through a private members' bill or otherwise that will help defend medical cannabis dispensaries.
In support of Mr. Tousaw's notion, it will be remarkable if out of the quagmire of Bill C-15, and Bill C-26 that came before it, comes positive legislation for medical cannabis users throughout Canada, and positive legislation and protection for medical cannabis dispensaries in Canada. If there is any good you can do through this bill, that is it. I urge you to give serious consideration to what Mr. Tousaw will likely supply before the end of the day. It will be small recompense for Canadians affected by Bill C-15. At least our critically and chronically ill Canadians will be spared the main impact of the bill.
Senator Joyal: I have a question about the definition of "trafficking.'' To your knowledge, does it happen that a person with a supply of medical marijuana will supply marijuana to another person who suffers from similar conditions but has not been successful in obtaining a supply of the drug?
Mr. Lucas: The sad irony is that, because of the poor quality of Health Canada's cannabis and a lot of the cannabis on the black market, medical users — whether licensed or not — often choose to produce their own cannabis. They do this to reduce costs, to guarantee better and safer quality or to grow strains helpful for them.
When they find a strain helpful to treat some of the spasticity associated with MS, it is natural for them to want to share it within their local community of fellow patients. It is absolutely not unusual to hear of medical cannabis patients who share their medication with fellow patients in a cooperative effort.
Under the current law, this sharing is trafficking. As you have been told, passing a joint is also trafficking. When it comes to the level of dispensaries and the gram or two grams that we dispense for patients on a daily basis, that dispensing is unquestionably trafficking. We keep good records on that trafficking. We have never denied it. When we show up in court, it is with the clear intent to show that we are accountable and transparent about the work we do.
Senator Joyal: Mr. Lucas, I was in Parliament when we adopted a bill to compensate victims of hepatitis C. Have you benefited from that bill?
Mr. Lucas: I am thankful to you for that, Senator Joyal. It allowed my wife and I to put a down payment on a house. Some of the compensation I received provincially led to the establishment of the Vancouver Island Compassion Society. I was diagnosed in 1995 and received my first payment through the Province of Ontario. I used some of that funding to start the dispensary.
In other words, yes and thank you.
Senator Joyal: I was not begging for the thank you.
Mr. Lucas: I thank you nonetheless, not only for me. My wife is the executive director of the Hepatitis C Council of British Columbia. She, still to this day, helps people fill out the forms to allow them to access the federal compensation. It has made a huge difference in people's lives, particularly those more symptomatic than I.
The Chair: Before you go, Mr. Leung, the best procedural advice we have at this point is that it is, at best, unclear whether committees can receive petitions. It is possibly not within the powers of a committee. To avoid controversy, I suggest that you hand your petition to Senator Nolin instead. As a senator, he has the right to present any petition in the Senate. That petitions cannot be received in committee has nothing to do with the fact that petitions can be received in the Senate. Thank you for thinking of the committee, but we will pass on this one for everyone's protection.
Mr. Leung: That is a lovely solution. Thank you very much.
The Chair: I thank you all very much indeed. It was extremely interesting testimony and helpful to us.
As our last witness in our detailed and thorough study of this bill, we are fortunate to have with us Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section at the Department of Justice Canada. Thank you for appearing. We have questions that we need to put to you. Do you have an opening statement, Mr. Saint-Denis?
Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: No, this is my second time before the committee on this bill. I am here to answer questions, hopefully provide useful answers, but I have no presentation to make.
The Chair: We needed you back because, of course, more questions have arisen.
Mr. Saint-Denis: Of course.
[Translation]
The Chair: We will start with a question from Senator Nolin.
Senator Nolin: In clause 3 of the bill, it talks about aggravating factors.
Senator Joyal: Can you specify the line and page?
Senator Nolin: It is a text I have copied.
The Chair: It's page 3, line 19, I think.
Senator Nolin: You talk about using real property that belongs to a third party. If it is used with the consent of the owner of the property, would that change the aggravating factor?
Mr. Saint-Denis: Based on the wording we have before us, I would say that permission would not change the direction of that provision.
Senator Nolin: So why talk about third parties?
Mr. Saint-Denis: In general, we were aiming at situations where the third party's property might be used without the knowledge of the individual in question. If we were talking about using it with the individual's knowledge, the individual would then be as guilty of the offence as the person using it.
Senator Nolin: I will give you that. However, why would it be an aggravating factor? The person who commits the offence is liable to prosecution as the producer. But how can the fact that the property owner consents to their building or land being used to produce an illegal substance amount to an aggravating factor?
Mr. Saint-Denis: That is not the situation we were aiming at. We were aiming at the situation where the owner does not consent.
Senator Nolin: In one of the questions asked earlier I thought I understood that Bill C-15, which is the continuation of Bill C-26 that was introduced in another session of Parliament, was discussed at length by the attorneys general of Canada, the provincial and federal attorneys general, that is. When did those discussions start? And how broad was the agreement?
Mr. Saint-Denis: Are you talking about discussions on Bill C-26 or discussions that might have been held before Bill C-26 was introduced?
Senator Nolin: We are talking about Bill C-15. Bill C-26 was part of another session of Parliament, so it won't be in issue.
What discussions took place, at the political and administrative level, between you and your provincial colleagues, about using federal legislation to institute mandatory minimum sentences?
Mr. Saint-Denis: It may have been discussed in the year before the bill was introduced, maybe because another bill had been introduced before that.
Senator Nolin: Did discussions start with your provincial colleagues after the forerunner to Bill C-15 was introduced?
Mr. Saint-Denis: If I understood correctly, you did not want to know what happened before.
Senator Nolin: I would like to know when the discussions among the attorneys general started.
The Chair: If we are talking about different numbers, the public watching us will not understand. But we are talking about the process that led up to the introduction of Bill C-15.
Mr. Saint-Denis: For the provincial attorneys general, perhaps in the year prior to Bill C-26, perhaps a little more, and not all the attorneys general, some of them, in particular the ones in western Canada, expressed interest in this kind of thing. And then, with Bill C-26, discussions were initiated and formalized more at the political level and among officials. I would say a year, it may be a little more.
Senator Nolin: Mr. Saint-Denis, I would like to explore with you the entire question of cannabis, of the production of cannabis for therapeutic purposes. We have just heard witnesses who evidently have some experience with compassion clubs and the use of cannabis for therapeutic purposes.
When the minister testified, at the committee's direction, he said that this bill was not aimed at this type of activity and was aimed much more at organized crime activities.
Throughout our examination of the bill, we have heard a number of witnesses who have raised serious concerns about the effect of implementing Bill C-15. Do you believe that amendments are needed?
Mr. Saint-Denis: To the bill?
Senator Nolin: Yes.
Mr. Saint-Denis: I have to say I did not have an opportunity to hear the witnesses who have just appeared. But the minister clearly said that we were not targeting compassion clubs or the therapeutic use of marijuana.
And in fact this bill does not target users, people who are in possession for some purpose.
Senator Joyal: Any medical purpose?
Mr. Saint-Denis: Any purpose, except in the case of possession for the purposes of trafficking. But simple possession, whether for personal use or therapeutic use, it does not target those activities at all.
Senator Rivest: The legal reality is that they are affected: aimed at one, shot the other.
Mr. Saint-Denis: No, if you examine the provisions here, they do not talk about possession offences, but possession for the purposes of trafficking, exporting and importing, not simple possession at all.
The Chair: Excuse me, I am not understanding that clearly. If someone grows marijuana, if they earn their living, as we have heard, there are people who do that and we are told they do not earn a lot of money, but they earn their living from producing, from growing marijuana for compassion clubs, that is trafficking, is it not?
Mr. Saint-Denis: Madam Chair, that is not possession. What was being talked about a minute ago, but growing.
The Chair: Production.
Mr. Saint-Denis: It is production, and the provisions of this bill certainly target certain production activities. But for activities involving production of 200 plants or less, it has to be for the purposes of trafficking.
So if you ask me about compassion clubs, I do not know whether those clubs are engaged in actual production or just selling. If they are just selling, they would not ordinarily be targeted by this bill. If they are producing for the purposes of trafficking, they would be targeted by the bill.
Senator Joyal: It all has to start somewhere! Where is the compassion club going to get it?
Senator Nolin: I think we should explain to Mr. Saint-Denis what we have just heard; the sole supplier for the Victoria compassion club, at the time, had 800 members; the supplier was prosecuted in criminal court, and was in fact given an absolute discharge at trial; the case is under appeal and is going to the Supreme Court. That is the case of Mr. Baron in British Columbia. At the time of the seizure, he had 1,000 plants. And he was an employee of the Victoria compassion club. I think you have a summary there; he is a producer, he is an employee. The compassion club knows it. It is all illegal; it is illegal production, and ultimately it is trafficking because there will be a transfer of a prohibited substance between the compassion club and its members. The only thing it does not have is importing. If we dug a bit deeper, we might have found that one of the Victoria members is a resident of Seattle. We do not have testimony that says that, but the facts I have just explained, that is the situation: Mr. Baron was exonerated by the British Columbia Supreme Court, at trial.
And with Bill C-15, it would all be illegal and Mr. Baron would be in prison for three years.
Mr. Saint-Denis: That is right.
Senator Nolin: Should the bill not be amended, given that the Minister told me, and I quote, "No, Mr. Nolin, that is not what we want, we want to target organized crime.''
Mr. Saint-Denis: The problem with the compassion clubs, from what I know, is that there is no oversight of their activities.
Senator Joyal: You want to put them all in prison!
Mr. Saint-Denis: We do not know exactly what they are selling. The compassion clubs say that they sell only to people who have prescriptions or who identify themselves as people who need it for therapeutic purposes. That is what they say. Is that what they do? I don't know exactly whether their sales are exclusively for therapeutic purposes or not. We do not know. So 1,000 plants, that produces an enormous amount of marijuana, as you know, Senator Nolin.
Senator Nolin: But you know, 1,000 plants divided into 50 different types of cannabis, because the 800 members do not all want the same type of cannabis, that explains it.
Mr. Saint-Denis: Possibly, but none of the compassion clubs have any oversight, there are no inspectors, we do not know anything about the operations or the sales. So it is understandable that the government has some apprehension about those activities.
Senator Nolin: The times when the courts have been asked to explore this operation, I think that with the testimony we have heard today, the conclusion is that the courts have used their discretion to discharge these people because, in the courts' view, they were meeting a need. Legally, we cannot agree with that, but the public evidently seems to agree with that and the courts have done it.
Should the bill be amended to try at least to narrow the net that may unfortunately be cast, in spite of the minister's intention?
Mr. Saint-Denis: I do not think I can answer that question yes or no. The only thing is that I do not know what kind of amendment you might make, that would mean there would be no abuse if we opened the door to exceptions of that nature, without some kind of oversight, be it federal or provincial agencies. If we make exceptions for compassion clubs, I can guarantee that will be an open door that will be used by creating a myriad of compassion clubs, that will maybe not all be more "compassionate'' than their pocketbook.
Senator Joyal: I have a supplementary question on that.
The Chair: Okay. There are other questions, and then there will be one final presentation from Senator Nolin.
Senator Joyal: But we have to know the facts. The marijuana distributed by compassion clubs does not fall from the sky like manna in the desert. They get it somewhere.
To avoid mandatory minimum sentences, they have to get their supplies from a large number of people who can supply them with fewer than five plants, to avoid the mandatory minimum sentence. If I read, at page 4 of Bill C-15:
imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,
If we take your word for it, that is what it means.
Mr. Saint-Denis: That is right. But you do have to recognize that compassion clubs are not legal organizations, in terms of the law. They are organizations that distribute marijuana illegally. No exception has been created. Even in the context of distributing or access to marijuana for therapeutic purposes, there is no permission for creating an organization that could engage in large-scale distribution. We have a system that allows for individual possession or, more recently now, production for two people. And that is all. That is what we now have with the Medical Marijuana Access Regulations. Compassion clubs are not legal.
Senator Nolin: To make them a little more legal, the courts have used section 730 of the Criminal Code, in their discretion, to exonerate these people, while finding them guilty. Perhaps there could be an amendment to give this kind of discretion back to the courts.
Mr. Saint-Denis: Possibly
[English]
Senator Wallace: There has been a lot of discussion around this table from the various witnesses who have commented on the trafficking provisions that are included in Bill C-15. In particular, those provisions are in clause 1, as you undoubtedly know, amending paragraph 5(3)(a) of the act. That particular amendment to the Controlled Drugs and Substances Act provides, as I understand it, for an escalating scale of mandatory minimum penalties that will be dependent upon trafficking.
I sense from some of the comments from witnesses that there is confusion about the concept of trafficking, and perhaps a lack of understanding about the aggravating factors that are mentioned — not only mentioned, but are an integral part of that section. Perhaps everyone is clear on the concept, but I have heard enough comment that makes me wonder if we are.
Can you explain the inter-relationship of these aggravating factors with the concept of trafficking that is set out in clause 1 of the bill?
Mr. Saint-Denis: I think we have to start with the definition of trafficking. Trafficking covers a range of activities — including giving, selling, selling without consideration and so on. The easiest way to explain trafficking is that the minimum penalty does not come into play in cases of trafficking unless one of these factors is present.
Therefore, if I give a joint to my friend, I am trafficking but I do not get with these minimum penalties. The bill is not meant to do that. It is meant to deal with cases of, for instance, organized crime where weapons or violence is used. Simple trafficking, even if there is a commercial consideration, will not be caught. There must be an aggravating factor — not any aggravating factor but one of these listed aggravating factors — for the minimum penalty to kick in.
Senator Wallace: Do you have the aggravating factors in front of you?
Mr. Saint-Denis: Yes, I do.
Senator Wallace: You do not have to read them line by line, but can you highlight the nature of each of those aggravating factors that must be proven in conjunction with trafficking, so we are clear on this issue?
Mr. Saint-Denis: After trafficking, they have to indicate that either the person committed the offence for an organized crime group, that the individual used or threatened to use a weapon or the individual used or threatened to use violence. That will get them into the minimum one-year sentence. There is a fourth aggravating factor that I should not forget, where the individual has had a previous conviction. That will get them the minimum one year.
There is another consideration, which will attract a minimum of two years. If the trafficking occurs in or near a school or a public place that is usually frequented by persons under the age of 18, if the trafficking occurs in a prison or if the person uses the youth to commit the offence of trafficking, if any of those factors are present, the individual will receive the minimum two years.
Absent these factors, there is no minimum. The simple selling, giving or transportation without any of these factors will not attract a minimum penalty.
Senator Wallace: You mentioned one of the subsections of clause 1, proposed section 5(3)(a)(ii)(A), which talks about an aggravating factor that can result in a two-year mandatory minimum. That provision refers to the commission of an offence. I will paraphrase and move to the part I want you to comment on: "in or near any other public place usually frequented by persons under the age of 18 years.''
We have heard comment about what can appear to be the ambiguity of that provision; how do you know whether this area is frequented by persons under the age of 18? Does that phraseology appear elsewhere in the Criminal Code, or are you aware of any judicial interpretation of what that provision means?
Mr. Saint-Denis: It appears under the sentencing guidelines for the Controlled Drugs and Substances Act now. It is one of the factors that a court must take into account as a potential aggravating factor. The language that you find here was inspired by that existing language now in the CDSA.
In this context, I am not aware of a judicial interpretation about these phrases, what these phrases mean, but the courts are capable of dealing with those kinds of issues. We do not feel that provision is problematic.
Senator Wallace: Can I ask one other question?
The Chair: Will you let me put a supplementary question, Senator Wallace?
Senator Wallace: Certainly.
The Chair: It is a sentencing factor — that language about "in or near any other public place.'' I want to be clear; you are not aware of any jurisprudence on this language, so we do not know how this provision has been used in the courts. Is that right?
Mr. Saint-Denis: I am not familiar with that having been used. Having said that, it does not mean it has never been used.
The Chair: We have had testimony from lawyers, and in one case from a retired judge, to the effect that the language was rather broad. The example I kept citing for the purposes of trying to elicit testimony was a bus stop frequented not only by children but by everyone. You cannot give us any guidance at all on how that provision will likely apply?
Mr. Saint-Denis: I can give you a general idea in a sense that I do not believe a bus stop will necessarily qualify, but perhaps certain parts of a mall might. Obviously schools will, and schools are mentioned here anyway. Playgrounds are such an area, for instance.
These are the kinds of things that the courts will deal with. Yes, they are broadly stated; but without going into a long list of potential areas, we thought it best to try to capture the general idea; the principle we wanted to establish here.
I agree with you and the witnesses who said that this language is broad, but it is not beyond the ability of a court to define.
The Chair: Forgive me. I know this is your time, Senator Wallace, and you will be compensated for it, but since this subject has been raised, I want to be sure I understand. The phrase occurs now, as I understand it, as a guideline for sentencing.
Mr. Saint-Denis: That is correct.
The Chair: But here, it kicks in; It is no longer a guideline.
Mr. Saint-Denis: That is correct.
The Chair: It is a stiff rule imposing a mandatory minimum, which is why it no longer allows for the same degree of judicial discretion that can be applied when we are talking only about guidelines. I ask again. Beyond assuming that the courts can handle anything we throw at them, we do not have anything more specific to hang our understanding of these words on.
Mr. Saint-Denis: I am afraid there is nothing more specific. We rejected the idea, but an alternative was to list potential sites where those things might occur. That might have been a long list, indeed.
The Chair: There has already been jurisprudence saying that "community centres'' was too vague.
Mr. Saint-Denis: "Community centres'' might be, depending on the community centre. These will be case-specific.
The Chair: Litigation awaits.
Thank you, Senator Wallace, for your patience.
Senator Wallace: To follow up on your point, Chair, coming back to the purpose for that subsection, it is obviously to provide as much protection as possible to young people, those under the age of 18, so that they do not become subject to drug trafficking. That is the whole purpose of the provision. I suppose we can debate the breadth of the language, but I know from my own experience that courts provide judicial interpretation of language continuously on all acts. That interpretation is not out of the ordinary. Do you agree?
Mr. Saint-Denis: I completely agree. As you correctly point out, the idea was to ensure a level of protection from exposing youngsters to drugs and drug traffic; drug activities.
Senator Wallace: A lot of evidence and opinion has been expressed about mandatory minimums and their effectiveness. Are you familiar, Mr. Saint-Denis, with the history of mandatory minimums as they form part of the Criminal Code or related statutes in this country? Can you tell us anything about the history? How many times have mandatory minimums appear? Have they appeared, and over what period of time?
Mr. Saint-Denis: I am afraid I cannot give you a detailed blow-by-blow description of the history of mandatory minimums either in the code or anywhere else. However, they have formed a part of the Criminal Code provisions. There are not many of them. In fact, at one time, there was a minimum penalty for a drug offence. The importation offence had a minimum penalty since, I think, 1960 or so in the old Narcotics Control Act. That provision was struck down. The minimum was seven years and it did not take into account the possibility that a court would be obliged to impose a seven- year minimum for importing a small amount of drugs, so the Supreme Court struck down that provision.
The Supreme Court has had an opportunity to look at minimum penalties in the code and, providing there is a rational connection between the offence and the penalty, the courts have supported or sustained these penalties. After the terrible incident in Montreal where a number of women were killed with the use of a firearm, we introduced a number of firearm-related offences with minimum four-year penalties, and most of them have been challenged and have been sustained.
Senator Wallace: My understanding is that mandatory minimums are not a recent occurrence.
Mr. Saint-Denis: No, they are not.
Senator Wallace: My understanding is that there are 44 of them in the Criminal Code, going back to 1976, and of those 44, 34 of them were 2005 and prior. Do you know if that is the case?
Mr. Saint-Denis: I do not know that for a fact, but I know mandatory minimums have been part of our code for as long as I have been involved with the code, and that involvement goes back to 1981. Mandatory minimums are not that unusual.
If we move away from the Canadian context, internationally, minimum penalties in the drugs area are not unusual at all. Any number of countries have them, including European countries and African and Asian countries. Some minimum penalties are extremely severe and others less so. Minimum penalties form part of the sentencing background for most countries, especially in the area of drugs.
Senator Wallace: Thank you very much.
The Chair: Supplementary question: I have seen commentary to the effect that in most, I will say democratic countries, because that was what the commentary was talking about, that include mandatory minimums in their Criminal Code, they also allow, on a standard basis, for the exercise of judicial discretion to waive those mandatory minimums when the judge deems that the circumstances warrant it. Is that a fair understanding of what most other countries do, in your understanding?
Mr. Saint-Denis: I cannot tell you, honestly. The brief research I undertook on that issue did not speak to it. It does not mean that is the case or is not the case. I just do not know.
The Chair: I knew I was pushing there, but it is always worth trying to elicit information.
Senator Wallace: Supplementary to that question, my understanding is that there is the ability for an exemption from the application of a mandatory minimum in the bill as it relates to accused who take treatment through drug treatment courts or through provincial drug treatment services.
Mr. Saint-Denis: Where they exist.
Senator Wallace: Yes; both drug treatment courts and provincial drug treatment services, which covers a wide base, I am sure you agree.
Mr. Saint-Denis: There is that ability, plus discretion in terms of the presentation or introduction of evidence of the aggravating factors. If those aggravating factors exist but for one reason or another, the Crown chooses not to introduce them, then the minimum penalties will not come into play.
Senator Milne: If I can follow on from that answer, Mr. Saint-Denis, you are saying that this law puts the decision in the hands of the prosecutor and not of the judge.
Mr. Saint-Denis: It depends what aspects you are talking about.
Senator Milne: I am referring to the answer you gave to Senator Wallace.
Mr. Saint-Denis: I said there is some discretion.
Senator Milne: With what they are charged with.
Mr. Saint-Denis: That is the situation now.
Senator Milne: Yes, but this bill takes this discretion behind closed doors and out of public scrutiny. That is what this bill does.
Mr. Saint-Denis: That is what the present law does as well.
Senator Milne: Mr. Saint-Denis, when I heard your answer to Senator Nolin, I became a little irritated. Your first answer was "dans ce projet de loi.'' What other law are we speaking about right here and now? It is this law we are talking about. You also said the word "peut-etre'' about four or five times in the first sentence. I hope you are not trying to avoid some of the questions, because it seems to me that was where you were heading.
We heard testimony here from Thomas Kerr, who is with the Centre for Excellence in HIV/AIDS. He talked about his concerns with the use of "criminal organization'' in this setting. His study, apparently a participation in illicit drug dealing among street-based injectors in Vancouver's downtown east side, found that drug dealers who were users themselves typically worked in groups of four; a steerer, a seller, a holder and a collector. These positions are held, he pointed out, by the most severely disadvantaged and addicted people.
In my understanding of the Criminal Code, that a group of three is a criminal organization. A group of four is certainly a criminal organization. Will the minimum sentence apply to these people? Is this law designed to scoop up people off the street who are the most disadvantaged in our society?
Mr. Saint-Denis: Your question is: Is this law designed to do that? No, it is not.
Senator Milne: Will that be the effect of the law?
Mr. Saint-Denis: Will that happen? It is possible that will happen, yes.
Senator Milne: I am becoming more and more discouraged about this law all the time.
We heard from the proponents of the medical use of marijuana that one of the reasons that doctors do not prescribe medical marijuana to people who need it is because, to do so, they have to fill out a 30-page form. Is the government planning to revamp the regulations so that will not happen?
Mr. Saint-Denis: I cannot say. I do not know.
The Chair: Is that responsibility under Health Canada?
Mr. Saint-Denis: Health Canada is responsible.
The Chair: For the 30-page form and all those regulations?
Mr. Saint-Denis: That is correct.
Senator Nolin: More than that; the health minister is the minister under the CDSA.
Mr. Saint-Denis: That is correct as well.
Senator Milne: We are talking in circles.
[Translation]
Senator Joyal: I would like to come back to the question of compassion clubs because your response, as they say in English, was "illusive.'' That is my opinion; I may be wrong. But I think it is important for us, the ones who will have to vote on this bill, to know what we are doing so we can avoid discovering, when the legislation is interpreted, that we have caught compassion clubs under the Criminal Code, because we were told today that none of them had been convicted under the provisions of the Criminal Code to date.
Your answer is that all these clubs could be charged and convicted and given minimum sentences because they have to get cannabis somewhere. Unless they buy from producers who grow fewer than five plants, they would automatically come under the provisions of this bill if they buy more than five, with sentences ranging from six to nine months or a year or 18 months, depending on the quantity.
In your mind, what was your objective in relation to compassion clubs when you drafted this bill?
Mr. Saint-Denis: As I said earlier, compassion clubs are not legal, they are clubs that engage in illegal activities.
Senator Joyal: Why have the courts not convicted them so far?
Mr. Saint-Denis: That is up to the judges' discretion.
Senator Joyal: And why have the judges used that discretion? Is it because the judges concluded that they were doing a job and meeting a social need that the government itself was not meeting?
Mr. Saint-Denis: That is very possible.
Senator Joyal: Exactly. You have confirmed what I am afraid of. The government has not changed its capacity to supply the people who currently are entitled to use marijuana medically. It has not improved its capacity to give those people an adequate quality and quantity of marijuana, and there has been a kind of communal response. The courts have recognized that this way of meeting the needs was perhaps not what the government had in mind, but it was meeting a particular social need. The effects of this legislation will be that they will all be made illegal, but the supply will stay the same: poor and inadequate.
If that is what we are doing with this bill, we have a problem. At the Justice Department, social problems are a little less concern to you, because they come under the Health Department. But as legislators, when we study a bill, we have to be concerned about the legality of what is being done, but also about the social impact the bill will have on a group in the public that is disadvantaged or that is dealing with a particular need.
When you draft a bill, you cannot ignore the impact it will have on a certain number of individuals, who are all going to end up in prison the next day, with completely inadequate treatment. You have read the same testimony as we have. If you could tell us: "Don't worry, there are treatments available in prison. Don't worry, there is everything you need, psychologists, consultants, doctors, and so on. Don't worry, the number of AIDS patients in the prisons is declining. Don't worry, people who et out of prison are in better health than when they went in'' — when 20 per cent of the people getting out of prison have AIDS.
You can't ask me to pass a bill with my eyes shut, and telling myself: "Don't worry, be happy, everything will be fine in the morning in Canada's prisons.''
Mr. Saint-Denis: It is not the objective of this bill to try to solve every problem —
Senator Joyal: No, but you are going to create more with this bill. That is my problem!
Mr. Saint-Denis: You have asked some useful questions, but at the Justice Department we could certainly not try to create exceptions to the provisions we have here for activities that we recognize are illegal. You have to admit that the Department of Justice cannot allow people to engage in illegal activities. We could not create an exception for an activity we recognize to be illegal.
You have heard witnesses from compassion clubs. I would venture to think they are not the only compassion clubs in Canada. There are a number of them. I do not know whether they have the level of oversight that the people here claim to have at theirs, but I know there are cases where the compassion club sells marijuana for therapeutic purposes for what are really relatively minor ailments. "I'm a little stressed out, can I have a joint please?'' "I'm having a bad day, I'm depressed. Can I have a joint please?''
When we studied the regulations on access to medical marijuana, that was not the type of ailments we had in mind. I do have to admit to a degree of confusion about this kind of enthusiasm for a drug for which we have virtually no tests. We know that marijuana helps in certain very specific cases, but for some historical reason we do not have a lot of information about the therapeutic value of marijuana. A lot of people say it is good for them. It has some value, but this is not scientific proof. Drugs that are extensively tested by the scientific community are under much more stringent oversight than what is wanted for a drug for which there is very little scientific proof in terms of its therapeutic value.
So when I am told that compassion clubs are doing valuable work and they are useful, fine, but I am still a little reluctant to take their word for 100 per cent of what they say.
Given that it is the Justice Department and we deal with are dealing with illegal activities, the Minister of Justice cannot just create exceptions to allow activities that are recognized as illegal under the law. I am sorry.
Senator Joyal: And that the courts have never wanted to punish.
Mr. Saint-Denis: The courts being what they are, it is not entirely accurate to say they have never wanted to punish. There is one case, an individual, unfortunately I have forgotten the name, in Montreal, who was the head of a compassion club and was convicted.
We have to distinguish between what happens in the courts in British Columbia, where we recognize that there are sometimes decisions that are a little out of the mainstream, on the one hand, and what happens elsewhere in Canada, on the other.
Senator Nolin: I would like to ask a question about the discretion judges have in other jurisdictions. In 2006, the Justice Department published a study that examined the common law countries, primarily the Commonwealth countries, our closest allies, Australia, New Zealand, and so on. I do not even need to go into the text in depth, the salient facts, it is even easier for journalists who do not want to read it all, it shows that most other jurisdictions — as compared to Canada — that have created mandatory minimum prison terms give their courts some judicial discretion. The judicial discretion clause allows judges to impose a lighter sentence in the case of exceptional circumstances.
It is in your office. I understand you have not read it, but there should have been someone you talked to, ultimately, precisely to cover the compassion clubs situation my colleague Senator Joyal is referring to. We have to think that apart from the case of Mr. Saint-Onge in Montreal, judges have all give discharges to compassion clubs because they had discretion.
Mr. Saint-Denis: You are right, I was forgetting that report.
Senator Nolin: I said Mr. Saint-Onge, but it may have been Mr. Saint-Maurice. I do not want Mr. Saint-Onge's name to be used, but there was someone by that name in the operation. And it was a large one. Ultimately, someone has to have the ability not to have to give someone who has been found guilty a mandatory prison sentence, if it is discovered that the law did not provide for the excuse that arises.
Mr. Saint-Denis: You are entirely correct. The report talks about a jurisdiction where judges were allowed some discretion. When the chair asked me the question, I was not thinking about that report, but about other cases. That is right. There are jurisdictions, countries, where the courts have been allowed discretion, even in the context of a system that provides for minimum sentences.
[English]
The Chair: I want a supplementary question on this issue.
Mr. Saint-Denis, I take your repeated reservations about compassion clubs and writing into a law protections for organizations that are not licensed, not regulated and not even legal under the law as it stands.
However, will it be contrary to the architecture and purpose of this bill to include some measure of judicial discretion where the judge is satisfied that the production or provision of marijuana is for therapeutic use and that the imposition of the mandatory minimum will be excessively harsh in those circumstances? I am not talking now about compassion clubs, which are organizations. I am talking about the goal of the activity in question. Will such an exception be contrary to what we have been assured is the purpose of this bill?
Mr. Saint-Denis: When I think of compassion clubs, I always think about the distribution of marijuana.
The Chair: I am not asking about compassion clubs. I am asking about a judge for whom the phrase "compassion club'' never comes up, but someone is before the judge charged with producing or supplying marijuana for therapeutic use; and the person then demonstrates it is for genuine therapeutic use, not for disguised recreational purposes.
I thought I had heard from the minister and from everyone that therapeutic use is not what this bill was trying to catch; to levy mandatory minimums in those cases. Do you understand what I am asking? If not, I will try again.
Mr. Saint-Denis: Yes, I understand perfectly. You covered two situations. One situation is some form of distribution, and the other is supplying.
The Chair: Producing or supplying.
Mr. Saint-Denis: As far as the distribution side of it goes, this bill will not catch that activity. With regard to trafficking, unless these compassion clubs are trafficking for organized crime or doing it so clearly, the aggravating factors set out here will not apply to those situations.
That leaves us with the question of production. Your question is whether this judicial discretion will go against the architecture of the bill. I would say technically, yes, because the bill does not provide for that sort of situation. If this committee believes that such an exemption or such a clause will be beneficial, then the committee will have to make that decision on its own, but it would not be in line with what is contained in this bill.
The Chair: Even though it might be in line with the assurances we have been given by those responsible for it? I do not know; I have to think about this question. These are questions we need to think about. I was interested in your response.
You had another question, Senator Nolin?
[Translation]
Senator Nolin: Mr. Saint-Denis, I want to come back to your description of the sentences and decisions of the British Columbia courts. We have heard one witness who did a study at Simon Fraser University about what he claimed to be an obvious tendency on the part of the British Columbia courts to hand down lower sentences than what they should be.
Based on that testimony, we have systematically put the question to everyone who has come before us who might have been able to assess the work done by the courts, from close up or farther away. Everyone, without exception, has refuted that study, using other studies to support what they said. Professors, lawyers, a retired judge — everyone refuted that study.
You bring me back to the comment that at the Justice Department a distinction is made between the work done by the British Columbia judiciary and the judiciary in the rest of Canada. I would like to know at least what you base your opinion on.
Mr. Saint-Denis: It is mainly on perceptions like what we are told by our prosecutors in British Columbia. It may be because they are next door to Alberta or that the same offence may be subject to harsher punishment, but certainly the perception of our prosecutors in British Columbia is that they have often seen decisions that led to sentences that were, in their opinion, rather light.
Senator Nolin: Your colleague at the federal Justice Department, who worked on the Beren case, had to have been surprised at Justice Koenigsberg's decision, even if he was somewhat expecting it, when the judge found Mr. Beren guilty and gave him an absolute discharge.
I think we have to set medical marijuana use aside and rather focus on offences like importing.
The previous witness cited several cases in which the minimum sentences imposed are not really similar to the ones imposed by the courts in British Columbia. In one case, someone was sentenced to eight years in prison for importing six grams of cocaine. That person must have found their trip a little expensive.
Mr. Saint-Denis: Undoubtedly, but there may have been other aggravating factors.
Senator Joyal: I would like to come back to the question of aggravating factors.
[English]
Senator Wallace has raised that point. There is a point for which I want clarification from you.
[Translation]
I would like to get some clarification about the aggravating factor referred to in item (D), at the top of page 2 of the bill.
[English]
It is page 2, proposed paragraph (D) on the top of the page:
the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years. . . .
[Translation]
How should I interpret that provision?
Mr. Saint-Denis: We are talking about two periods, the one when the individual is sentenced and the time when the prison term ends. We were trying to ensure that an individual who was incarcerated, and so could not be convicted for a drug-related offence in the last five years, since they were in prison, could not take advantage of the fact that they had not been convicted in the last 10 years.
Senator Joyal: Could you repeat your answer?
Mr. Saint-Denis: Take the example of a person who is convicted and over the last 10 years spent five years in prison. The fact that they did not commit any offences, since they were not able to, because they were in prison, should not count in their favour. So this 10-year period would start to run only from the point when the individual got out of prison and not from the point when they were convicted.
[English]
Senator Joyal: That is not the way I interpreted it. That is not the way I read the bill. I will explain how I interpreted it at reading. I am not a lawyer; I am only reading this provision and I want to understand what it is.
The person "was convicted of a designated . . . offence,'' so to me it means that among the designated offences, the person has been found guilty of trafficking; that person gave an ecstasy pill to another person in a rave and has been found guilty. This paragraph says to me that the person has been convicted "of a designated substance offence, or'' — so that is another set of circumstances — "had served a term of imprisonment for a designated . . . offence, within the previous 10 years.''
The way I interpret that provision is that the other circumstance is that the person has been in prison as a sentence. It means that he might have served one day, two months, five years or nine years. For me, this is the second set of circumstances and those two conditions would be within the previous 10 years, the way it is written in English, because "within the previous 10 years'' could apply as much to the person who was convicted as to the service of the term of imprisonment. The way it is drafted is not as clear as you might want to explain it to us tonight.
Mr. Saint-Denis: We thought it was clear, but perhaps by working on it, sometimes we have a sense of where we want to go and maybe it does not come out that way. However, on reading that provision, my interpretation is that the 10 years would run from either the time the person is convicted or the time the person essentially has finished serving the term of imprisonment. They can have a conviction and receive no term of imprisonment, as you know.
Senator Joyal: Yes, of course. They can be discharged.
Mr. Saint-Denis: They can be discharged, or they can receive parole or any number of things.
They can be convicted and serve a term of imprisonment. In our thinking, it made sense to have a provision that dealt with previous convictions for the previous 10 years if 9 of those previous 10 years were spent in prison, where an individual would not have a chance to commit a drug offence.
Senator Joyal: That is not what we heard.
Mr. Saint-Denis: That is theoretically.
The Chair: May I have a supplementary question?
Mr. Saint-Denis: The whole purpose of this provision is to try to give a benefit to the individual who has remained conviction-free for 10 years.
If the individual has had a previous conviction 11 years ago, then there is no aggravating factor, or if the individual served a term of imprisonment that ended 11 or 12 years ago and that individual commits another designated offence, then the aggravating factor will not apply.
However, if the individual stepped out of prison after nine years of imprisonment and committed a second aggravating factor, a second designated offence, then this factor will come into play.
The Chair: I withdraw my supplementary question.
[Translation]
Senator Nolin: Clause 10 of the act, under the heading "Sentencing,'' sets out a series of aggravating factors. Paragraph 10(2)(b) says: "was previously convicted of a designated substance offence.'' I presume that is where you have taken the factors from — they cannot be called aggravating factors now, because they are part of the actus reus of the offence.
Mr. Saint-Denis: Yes.
Senator Nolin: Although the chair is not a lawyer, she has pointed out a major problem. We see a huge difference between a judge considering the aggravating factors, as set out in the existing section 10, and a judge having to deal with a constituent element that forces them to make a decision. You are making the constituent elements harsher by adding this item about serving a sentence, the time in incarceration, within that 10-year period.
Mr. Saint-Denis: That is right.
Senator Nolin: Ultimately, we're talking about a double sentence for the same offence.
Mr. Saint-Denis: I would not say that.
Senator Nolin: At least, some people will try to see it that way.
Mr. Saint-Denis: I do not think so.
Senator Nolin: No?
Mr. Saint-Denis: The 10 years starts to run from when the individual is convicted or from when they have completed their prison term.
Senator Nolin: I understand, but why did you not limit it to what is said in section 10?
Mr. Saint-Denis: Because we thought it was important to cover the situation of an individual who had been in prison and had not committed an offence or not been sentenced for an offence, because it was right within the 10 years.
Senator Nolin: Outside the 10 years. In section 10, there is no 10-year limit.
Mr. Saint-Denis: No, there is not. That is correct.
Senator Nolin: It can be anytime in the previous lifetime of a person convicted, or of the accused.
I think the chair has put her finger on a major problem. The lawyers are certainly going to exploit this distinction. It seems to me to be major.
Again, we are narrowing judicial discretion, and that is one of the norms and the good features of our system of justice.
In the examination of the bill that preceded bill C-25, the minister himself almost applauded the work done by our courts. So I do not see why we would not trust them in this case, and why we would have mandatory sentences, and list a series of situations that would compel judges to impose a mandatory minimum sentence.
The chair has put her finger on a situation and is making a distinction between sentencing, which is the judge's job, and the elements of the crime.
The Chair: That is a lovely speech full of compliments for me, but it is not a question.
Senator Nolin: My question is still the same one. Do you not see this as an opening for an amendment that would allow a judge to get back, to retain, full judicial discretion with everything that implies regarding aggravating factors — we still have not talked about Aboriginal communities, that are disproportionately represented or overrepresented in the prison clientele — having regard to everything that surrounds the exercise of judicial discretion?
Why not give judges back that discretion? It would be appropriate for a judge to be able to look at the case, in light of the facts, but retaining their discretion, to be sure that a person who comes within an excuse there is no provision for but, and it is always possible, and rule that they were not subject to that sentence.
Mr. Saint-Denis: The policy as set out in this bill is not intended to give more discretion to the judiciary, but to give them less.
Senator Nolin: The bill removes judicial discretion. So by removing it, it is part of the bill.
Senator Joyal: You have transformed a factor in sentencing and you have made it an aggravating factor in the offence, by transforming paragraph 10(2)(b) into 10(2)(d).
Senator Nolin: It is the same for all the other elements.
Senator Joyal: Exactly. By removing paragraph 10(2)(b), which was one of the factors the judge has to consider in sentencing, when they judge had to assess that factor. I will take an extreme example because it is the absurd examples that enable us to follow the logic to its end: a person has been convicted of giving someone an Ecstasy pill at a rave — that is the minimum we can find in the Controlled Drugs Act — and when the judge had to determine sentence, they thought: "it's minor, we'll give them a chance'', and so on. Now, you have transformed this into an aggravating factor in the crime. So the judge can no longer assess whether a single pill is significant as compared to 10 kilos of heroin, the mere fact that the person has been convicted within less than 10 years, with an Ecstasy pill, that person will now get a one-year minimum sentence, straight off. The judge has no discretion; it is a minimum of one year in prison.
You have changed something fundamental in the drug law as it was previously interpreted.
Mr. Saint-Denis: You are quite right, Senator Joyal. That is the purpose of the amendment.
Senator Joyal: It is extreme because it should at least delineate the severity of the offence, of the sentence. You are assigning the same importance to the aggravating factor consisting of a pill as to 10 kilos of heroin. The system has to be rational. If we do that, the judge has to be able, at some point, to assess the circumstance sin which the conviction was obtained.
Mr. Saint-Denis: But we have to remember a couple of little things still. But with your example of the Ecstasy pill and the 10 kilos of heroin, we have limited judges' discretion in relation to the minimum they can impose, but not the maximum.
In the case of the individual with the pill, the law would require — it is not entirely clear in your pill example; if the aggravating factor was one of them. But let's say yes. Let's assume it is.
Senator Joyal: That is right.
Mr. Saint-Denis: That in this case there was trafficking.
Senator Nolin: The person had a fake identity card. They were not 18 years old, they were 16. That can happen. I think it happens sometimes.
Mr. Saint-Denis: That brings makes it one of the aggravating factors and the judge has to impose a mandatory minimum sentence. But in the case of 10 kilos, the judge will not impose a minimum sentence. The maximum sentence for trafficking is life in prison. The judge is not going to stop at one year. They are going to aim a fair bit higher. Judges still have discretion to assess the aggravating factors that go beyond what is provided in the legislation. We have not eliminated judges' discretion. We have circumscribed it.
Senator Nolin: That is why it is part of this bill.
The Chair: You have imposed a threshold.
[English]
I think we have made a fair tour of this particular topic.
Senator Joyal: I have another question: clause 5(2) amending subsection 10(5) on top of page 6:
If the offender successfully completes a program —
[Translation]
Why have you put "successfully'' or "avec success''? On what will the decision that the program was successfully completed?
[English]
Why have we not said, "If the offender completes a program''?
[Translation]
Why include the qualifier "successfully''?
Mr. Saint-Denis: It seems reasonable to me to want someone to be able to complete a treatment program successfully. It will be up to the courts to decide whether it was done successfully. Ordinarily, when a treatment court is dealing with an offender, it will impose certain conditions, including abstaining from using drugs, and possibly psychotherapy or trying to find a job or things like that. The court will examine the situation and decide, at the end, whether the individual has met the requirements imposed by the court. That is what successfully is.
Senator Joyal: Why was it not in section 720(2) of the Criminal Code?
Mr. Saint-Denis: Because section 720(2) of the Criminal Code doesn't talk about addictions courts.
Senator Joyal: Yes, it refers to treatment, "Treatment program approved by the province.'' That is exactly what there is in the courts.
The Chair: Mr. Saint-Denis is entitled to answer the questions he is asked.
Mr. Saint-Denis: It is because the addictions courts are a very specific phenomenon, as opposed to other types of courts approved by the province that may hear offenders who appear before the courts.
The courts for what are called court-ordered addiction treatment programs are a phenomenon that was created six years ago in Canada. They have a certain style of operating, and if I understand correctly they operate differently from other treatment programs available to the courts.
Senator Joyal: I understand, except that "successfully'' applies both to treatment courts and provincial treatment programs; and in the latter case, the qualifier "successfully'' was not used.
Mr. Saint-Denis: That is true, but the court — you are talking about discretion — will have the discretion to determine whether the individual has completed the treatment successfully. In both cases, the court supervises the treatment. And in both cases, the court will undoubtedly want to impose certain conditions. For people with a drug addiction, they will require at least that the individual not use drugs. There will be urine testing, ordinarily, done randomly, to make sure the individual is complying with the conditions. If there are relapses, the court will be able to assess whether, having regard to the other factors, the other conditions, that is enough to determine that the individual has not successfully completed, or that it was successful, even if there were one or two relapses.
[English]
The Chair: Mr. Saint-Denis, we heard testimony making it very plain that in drug treatment programs — and my recollection is also under the drug court programs — people enrolled in those programs are kicked out of them if they fail along the way; if they fail their tests or if they have relapses into usage. The fact that they come out the other end having completed the program means that they actually did complete the program. They did not just show up and pretend to be doing it; they completed the program. The program includes the kind of conditions you are talking about.
Therefore, I was mystified by the addition of this word "successfully.'' How do you define that word in a law? How do you define "successfully complete'' as distinct from "complete''?
Mr. Saint-Denis: It will be left to the discretion of the court. "Successfully'' might not necessarily mean that the individual has met 100 per cent of the conditions 100 per cent of the time. My understanding is that there are individuals who do successfully complete the program in spite of possibly having had a relapse at the beginning or at some time during the program.
The Chair: However, they are allowed to stay in the program, on the judgment of the program operators.
Mr. Saint-Denis: I do not believe that a single relapse will necessarily result in an individual being kicked out. The court will say, "Yes, you have successfully completed the program,'' or "No, you have not successfully completed the program, for these reasons,'' and it will be up to the court to determine.
You want to set up some form of yardstick by which one can say, "I did not just go through the motions; I was able to meet the conditions imposed by the court,'' and the court will acknowledge that. That will be the person who has successfully completed the program.
The Chair: I see. We have another supplementary.
[Translation]
Senator Nolin: We are not asking you these questions for the pleasure of criticizing you. We have heard addictions treatment experts, doctors, and not just from Vancouver, but from Toronto and people in this region. Virtually all of them said: "what does `successfully' mean?'' The thing is you are at the intersection of the law and medicine. It is a health issue; there is not one addict going through a process for whom all the mechanisms are tailored to the individual. There is no one size fits all.
Mr. Saint-Denis: Agreed.
Senator Nolin: The doctors said that it worked well as long as they were able to adapt it, to each patient, the objective of the law. "Let us be the judges,'' the doctors said. If the person goes through the process, they will report to the judge, but the evaluation of whether it was successful may not be the same from one doctor to another. To talk about curing a disease, no doctor will say that the person is cured; maybe death will be the cure. The person may have relapses, numerous witnesses have told us that.
Mr. Saint-Denis: That is right, but the phrase does not mean that the person is cured.
Senator Nolin: What does it mean then, "successfully''?
Mr. Saint-Denis: It simply means that the person has completed the program and complied with the conditions imposed by the court. The court will never require that an individual be cured of an addiction.
Senator Nolin: We have public health experts who have told us: "the word `successfully', we do not like that.'' They are entirely in agreement with the idea of having alternative treatments, an alternative procedure.
Senator Joyal: We all agree with that.
Senator Nolin: Everyone agrees with that; we were the first ones, 10 years ago, to agree with that. We just think there is not enough, but that is another subject. Here, at least, it is extended to provincial programs.
The Chair: I had a question also.
[English]
My question also has to do with drug treatment programs. We have heard testimony to the effect that drug treatment programs tend to be full. There are more candidates for those programs, in at least a reasonable number of places in Canada, than there are spaces available.
What happens to someone who is willing to enroll in a drug treatment program and says to the judge, "I would be glad to do it, but there is not a space?'' Does that person just sit in remand for a year or two? What happens?
Mr. Saint-Denis: I would rather doubt that. If there is absolutely no space, then he does not get access to the program.
The Chair: In that case, he or she is stuck?
Mr. Saint-Denis: That would be correct. My understanding is, however, that not all of the drug treatment court programs are filled. I think some of the newer programs have space available.
Senator Joyal: I take exception. That is contradicted by other witnesses. We have heard witnesses who do not corroborate your answer. I sincerely apologize.
The Chair: We have at least had testimony that, as I said a moment ago, in a good many cases there are not spaces available. We are not into the statistics here.
Mr. Saint-Denis: Please do not misunderstand me. My understanding, for instance, is that in B.C. and Toronto, there are no spots available. Those programs are running at 100 per cent capacity. With regard to the newer courts, I was told — this goes back three or four months — that there was capacity to take in more.
The Chair: The problem, of course, is that even with newer programs, if they are any good, they will fill up quickly, will they not?
Mr. Saint-Denis: Yes, they will fill up quickly. However, the individuals who make it into these programs, it is not an endless supply of drug addicts. Drug addicts who have committed a drug offence using violence or using a weapon, or who are part of an organized crime group, will get screened out. There is not an endless supply of potential customers for these treatment centres.
Senator Milne: I have a supplementary question.
The Chair: I was intending to give you the floor on a second round, Senator Milne, so why not pretend that has happened.
Senator Milne: An organized crime group is three people. Three drug addicts on the street is an organized crime group.
Mr. Saint-Denis: They have to do more than hang around on a corner. They have to be involved in committing an offence of some sort.
Senator Milne: One is procuring it. I read you the list of the four that normally take part in a drug transaction on the streets of the downtown east side in Vancouver. That group is an organized crime group and these are all addicts who are doing this to support their habit.
The Chair: Was that a question?
Senator Milne: I am offended by the constant use of "organized crime group'' as defined in the law, at which we are told this bill is aimed. To me, it is clear that the bill will scoop up these poor people off the streets of our cities who need help. They need medical care, they need all sorts of things such as mental care, but they are not what people think of normally as an organized crime group.
Mr. Saint-Denis: Point taken.
Senator Milne: These people will be the low-hanging fruit that are scooped up.
We heard from a witness tonight, who was representing the Canadian AIDS Society, who said that the average amount a medicinal marijuana user would use in a month is approximately two ounces. Suppose this individual was scooped up with two ounces en route between one of these compassion clubs and home, what charge will that individual face if this bill is passed.
Mr. Saint-Denis: None; do they have an authorization to possess under the medical access?
Senator Milne: There are few people in Canada who have that proper authorization.
Mr. Saint-Denis: If they do not have authorization and they are picked up, technically, the police will have discretion to either charge or not charge. Are you saying the amount is the average consumption over a month?
Senator Milne: This is what we were told.
Mr. Saint-Denis: If it is over a month, then at any one time the amount of cannabis will be small. The peace officer will have a decision to make; do I want to charge this individual who has a tiny amount or not? If the officer charges them, this legislation does not come into play. The individual is charged with possession and that is it.
Senator Milne: What about the second time that individual is picked up?
Mr. Saint-Denis: It is still the same thing. This legislation does not deal with possession per se. Individuals can be picked up as many times as they want; it does not make it into this legislation.
Senator Milne: That is a bit of a comfort, I suppose.
[Translation]
Senator Nolin: I definitely agree with you, governments, one by one, have stated doubts as to the therapeutic virtues of cannabis. To the point that most of the time they have put the question to their medical organizations, to the people with the authority, and the capacity, the intelligence and the wisdom, to set aside partisanship and politics to really determine whether the effects of cannabis are genuinely good. Who has answered it?
I was fascinated when you said that there is essentially a kind of mythology around cannabis and you questioned the compassion clubs. Our American colleagues approached the question with considerable doubt; nonetheless they came to the conclusion that in fact cannabis has therapeutic virtues. The Europeans said: "That's American, it's no good, we are going to do our own research.'' What did the European medical research institute conclude, after doing three years of evaluation? In fact, it is not benign, it is not ineffectual, and yes, cannabis does have therapeutic effects.
Essentially, there is no question; unfortunately, there are people who perpetuate what many Canadians, in their heart of hearts, in the privacy of their homes, have concluded: yes, cannabis has virtues for medicinal purposes. That is probably why 85 per cent of the population of Canada agrees with medical marijuana. It is probably why, in spite of the law, people organize compassion clubs, and grow cannabis, that it would be much more profitable to sell on the ordinary black market, and then supply compassion clubs. Tell me, are these people all crazy? Are they all doing it because they are a band of true believers or they are blind to the facts? No.
I will conclude by saying that I think we have to include an evaluation amendment, because this bill unfortunately has consequences that are certainly unforeseeable. We will see over time. In fact that is why you have agreed to a two- year evaluation amendment, which we consider a little short, but we shall see. What do you think about it?
Mr. Saint-Denis: You are quite correct. Cannabis has therapeutic characteristics, that is recognized. But it is not a miracle drug.
Senator Nolin: No one is claiming it is.
Senator Joyal: It is an analgesic.
Mr. Saint-Denis: In the compassion clubs, they do not know exactly what ailments people want to alleviate or cure or mitigate, if you will, with cannabis. Certainly in some cases, and in fact even in the United States, I think it is for glaucoma, people use marijuana to alleviate that condition. And there are undoubtedly others that have been recognized, as you say. But there is nothing to suggest that in those compassion clubs they limit distribution to those cases. In fact I am reasonable sure that is not the case.
The use of marijuana is permitted for a range of conditions; some more justified than others, but the same approach isn't taken to cannabis use for therapeutic purposes as is taken for other drugs that are just as controlled, for example heroin, morphine, codeine, for which the precise dosage is known, the strength and purity of the product. All those other substances have gone through a rigorous system of scientific evaluations and production; we know where we are going, we know where it comes from, we know what the quantities are. We do not have those data for cannabis.
Senator Nolin: You know the answer to that. We both know it.
Mr. Saint-Denis: I know the answer to that.
Senator Nolin: Heroin, the poppy and its derivatives, have been synthesized by scientific laboratories and they can reconstitute the molecules and patent them. When it became possible to patent a THC molecule, drugs were created. Now, we have had witnesses telling us that in the case of cannabis, the product has to be natural and no one can patent that. We find ourselves in a vicious circle.
Mr. Saint-Denis: Yes, but we are still having to deal with the phenomenon of a drug that people want to use for therapeutic purposes without knowing exactly what the quantities, the origins or the production are, what happened between the point when the product was grown and the point when it is manufactured, or rolled into cigarette form.
There are a lot of unknowns in this system and that could cause problems at some point.
Senator Nolin: I will conclude with this: the Institute of Medicine in the United States, INSERM in Europe, our committee, we have all done this. We started with the same premises and we reached that conclusion.
Yes, there may be problems, but if we compare it to other substances, it is not as serious. Forget what our report said. The people at the Institute of Medicine in the United States have decided it systematically. The danger in prohibiting the substance, we can have a lot of fun with that. We have the proof.
[English]
The Chair: The range of opinions is vast. However, everyone on this committee has benefited from Senator Nolin's experience and expertise in this matter, as we have benefited from your experience and expertise this evening, Mr. Saint-Denis.
Mr. Saint-Denis: Thank you.
The Chair: We are grateful to you.
Mr. Saint-Denis: If I may say one thing, Senator Nolin and I go back a fair bit, and I have to tell you that I have also benefited from his expertise and the work he has done — and the work that his previous committee has done, particularly in the area of cannabis.
The Chair: Thank you. Colleagues, we shall meet again in this room at 10:45 tomorrow morning to conduct our clause-by-clause examination of Bill C-15.
(The committee adjourned.)