Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue No. 44 - Evidence - Meeting of April 25, 2018
OTTAWA, Wednesday, April 25, 2018
The Standing Senate Committee on Foreign Affairs and International Trade, to which as referred the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada’s international obligations, this day at 4:15 p.m. to consider the subject matter of the bill; and, in camera, for the consideration of a draft agenda (future business).
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, I call the meeting of the Standing Senate Committee on Foreign Affairs and International Trade to order.
We are meeting today to continue our examination of the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts insofar as it relates to Canada’s international obligations.
Before I turn to our witnesses, I’m going to ask senators to introduce themselves.
Senator Greene: Senator Greene from Nova Scotia.
Senator Tannas: Scott Tannas from Alberta.
Senator Oh: Victor Oh from Ontario.
[Translation]
Senator Massicotte: Paul J. Massicotte from Quebec.
[English]
Senator Bovey: Patricia Bovey from Manitoba.
Senator Cordy: Jane Cordy from Nova Scotia.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
Senator Dawson: Dennis Dawson from Quebec.
[English]
The Chair: And Raynell Andreychuk from Saskatchewan.
Our witnesses are returning today. On your behalf, I want to thank them for coming. We were in the middle of votes at one point and weren’t sure exactly when we could fit all the witnesses in. They have very kindly said that they would be pleased to return, and they are before us today. They are witnesses that we had called for some clarifications and explanations.
We have from the Canadian Border Services Agency Ms. Jennifer Lutfallah, Director General, Enforcement and Intelligence Programs; and from Health Canada, Mr. Eric Costen, Director General, Cannabis Legalization and Regulation Secretariat; and Mr. David Pellmann, Executive Director, Office of Medical Cannabis.
The witnesses are free to make their opening statements. Then we are going to go to questions.
We called Health Canada, in particular, because there are import and export considerations that may be international and they are brought here for that purpose.
Ms. Lutfallah is here because we understand that there could be some cross-border issues that affect protocols, treaties, et cetera, with either our neighbouring country or any other country. Those were the areas of international consideration that we’ve brought the witnesses before us to discuss.
Eric Costen, Director General, Cannabis Legalization and Regulation Secretariat, Health Canada: Thank you very much, chair. We are very happy to come back on this rainy day.
Honourable senators, thank you very much for the opportunity to appear before you today. I will provide a brief overview of the government’s approach to legalizing and strictly regulating cannabis, but specifically to describe the relevant regulatory provisions and the processes as they pertain to the importation and exportation of cannabis.
As you’ve all heard, the government is taking a public health approach to the legalization and regulation of cannabis which builds on the strict regulatory controls that are in place today.
Bill C-45 proposes comprehensive, national rules to control the production, distribution, sale and possession of cannabis in Canada.
The implementation of Bill C-45 will be supported by regulations enacted in a number of areas, such as issuing licences and permits for regulated activities, establishing standards for security and product quality, setting out restrictions for packaging and labelling and enabling continued access to cannabis for medical purposes.
Details on the government’s proposed regulatory framework are outlined in two documents which have been published in recent months.
Canada is recognized as a world leader in regulating the production of cannabis for medical purposes through the existing Access to Cannabis for Medical Purposes Regulations.
With over 100 licensed producers serving approximately 300,000 patients, Canada has gained considerable experience and expertise in regulating cannabis.
[Translation]
The government’s approach to regulating cannabis in the future, should Parliament pass Bill C-45, will build upon and enhance these well-established regulatory requirements which have been in place since 2013.
[English]
A few examples of these regulatory controls include robust personnel and physical security controls to prevent organized crime from infiltrating or influencing the regulated industry and to protect public safety, plain packaging and labelling requirements to protect young people and others from inducements to use cannabis, regular inspections supported by detailed record keeping in order to monitor industry activities and equip the regulator to take appropriate compliance and enforcement action, and a modern inventory tracking system and diversion control measures via a new cannabis tracking system to prevent diversion into and out of the regulated supply chain.
As I understand it, this is an area of particular interest to this committee, I would like to take a few minutes to talk about the import and export of cannabis.
To begin, I want to be very clear that unless authorized under the proposed cannabis act for medical or scientific purposes, the importation and exportation of cannabis is prohibited. It is also prohibited, unless authorized, to possess cannabis for the purpose of exporting it.
There are provisions that allow Health Canada to authorize the import and the export of cannabis for very specific purposes. These provisions exist today as a part of the Access to Cannabis for Medical Purposes Regulations. And Bill C-45 proposes to maintain those current rules regarding importation and exportation of cannabis.
First, any and all movement of cannabis must take place within the confines of our international obligations and the laws of other countries. Cannabis cannot be moved across the border without the specific permission of the country of origin and the country of final destination.
[Translation]
The permits required to move cannabis across the border are very specific as to the product and quantity that can be moved; the mode of transportation and travel route; who can legally send or receive the product; and the period of time the permit is valid. Health Canada may suspend or revoke a permit if any of the conditions are not met.
With regard to why cannabis might be imported or exported internationally, international obligations established under the 1961 Single Convention on Narcotic Drugs limit the importation and exportation of cannabis to medical and scientific purposes such as for clinical trials, for testing, or the establishment of a medical regime in a foreign country.
[English]
To be clear, Canadian cannabis producers are not permitted to export cannabis for non-medical purposes, even to markets where the consumption of cannabis for non-medical purposes is legal. Likewise, another country cannot supply cannabis for non-medical purposes for sale in Canada.
The unauthorized international cross-border movement of cannabis will remain a serious criminal offence under Bill C-45. It would be subject to enforcement action up to and including criminal investigation and prosecution.
Health Canada’s website provides information regarding considerations that the department takes into account in its assessment of a request to import or export when it’s received from a licensed producer.
Bill C-45 sets the conditions for a legal and regulated cannabis industry to emerge within Canada, which is intended to protect public health, protect youth and displace an illegal market while mitigating the risks of involvement by organized crime.
The Canadian Border Services Agency is here to speak today and will provide you with some more information about how they will enforce Bill C-45 at the border should it receive Royal Assent.
The Chair: Thank you.
Jennifer Lutfallah, Director General, Enforcement and Intelligence Programs, Canada Border Services Agency: Thank you, Madam Chair, and good afternoon to all members of the committee. I am pleased to be here to assist the committee in its study of Bill C-45 as it relates to Canada’s borders.
[Translation]
As the committee is aware, the Canada Border Services Agency administers over 90 acts and regulations at ports of entry on behalf of other federal government departments, provinces and territories.
[English]
The CBSA assists Health Canada in administering and enforcing Health Canada acts and regulations that relate to travellers, conveyances, cargo and certain controlled, prohibited, hazardous or regulated goods, including the Controlled Drugs and Substances Act.
The Controlled Drugs and Substances Act establishes the legislative framework that regulates the possession, import, export, production, assembly, distribution, sale, transport, provision, sending and delivery of controlled substances and precursors that can be used in the manufacture of illegal drugs. All activities are prohibited unless authorized by regulation or exemption.
There are various regulations under the act that set out the circumstances under which legitimate activities with controlled substance and precursors are permitted.
Currently under the Customs Act, the CBSA has the authority to inspect goods being imported into Canada. That same act compels exporters to report goods leaving the country, and Bill C-45 would put into place a strict framework for controlling the importation and exportation of cannabis.
Travellers are required to present themselves to an officer, answer truthfully to questions posed by an officer and report goods upon arrival into Canada. Whether declared or undeclared, cannabis may be detained under the Customs Act. If unreported, it can be seized and detained by the CBSA, who would notify the RCMP or the local police of jurisdiction and who would collect the cannabis on behalf of Health Canada and dispose of it.
Turning over to the Immigration and Refugee Protection Act, that is the act that governs the admissibility of foreign nationals and permanent residents into Canada. The CBSA may deny entry to those who import cannabis into our country. Additionally, our officers have the authority to arrest persons who attempt to import illicit drugs across the border. None of these authorities would change under the new legislation with respect to cannabis.
In summary, the proposed legislation maintains the existing control framework associated with the prohibition of the cross-border movement of cannabis by moving cannabis-related provisions from the Controlled Drugs and Substances Act into the proposed cannabis act.
Travellers, mail, courier and commercial shipments will continue to be examined by the CBSA for cannabis. Enforcement measures will continue to be undertaken as required.
We are a significant partner in the Government of Canada’s strategy to protect public health and safety and deter criminal activity related to cannabis. Funding of approximately $40 million over five years is being provided to the CBSA for the implementation of Bill C-45. This funding will allow us to undertake various actions and activities, including investing in our front line and increasing our capacity through additional personnel, developing awareness tools to inform travellers of the continued prohibition of the cross-border movement of cannabis, as well as other activities.
Madam Chair, the CBSA remains committed to vigilantly enforcing the legislation regarding cannabis while maintaining the free flow of legitimate trade and travellers across the border.
At this time, I would be pleased to answer any questions you may have.
The Chair: Thank you for your presentations.
Senator Cordy: There is going to be a proposed awareness campaign in terms of what people can bring back and forth across the border. We still get Americans who think they can take their guns across the border. They lose their guns and don’t quite understand it. So I’m not quite sure how big an awareness campaign we have to make to ensure that Canadians will understand that they can’t cross the border. That is my first question.
Still related to that, cannabis is illegal federally in the United States but it’s legal in certain states, one of them being Washington State and another one is Alaska, which would be pretty close to British Columbia. Would it be legal or illegal to cross the border from Canada into Washington or into Alaska with cannabis or the reverse, come from Alaska or come from Washington into Canada with cannabis, or is it the federal laws that will prevail?
Ms. Lutfallah: I’m going to take your second question first.
As you know, it is U.S. Customs and Border Protection that is responsible for the border for the United States. That is a federal agency and federal law will reign across the frontier.
That being said, the reverse is true for Canadians crossing the border. They cannot cross, obviously, from B.C. to Washington with cannabis.
In terms of the campaign, I agree with you that it’s going to have to be a multifaceted campaign. I can speak for the Canadian Border Services Agency. We are going to be installing signage at high traveller ports of entry to inform people that it is illegal to take cannabis out of the country and into the United States. As well, we will be erecting signs and we will be undertaking public campaigns. Commercials will be released informing Canadians what their obligations are with respect to cannabis.
GAC, I understand, is also going to be updating its traveller awareness website so that Canadians are aware they are not to take cannabis out of the country.
Senator Cordy: Thank you. Last week we had witnesses who shared concerns about the UN Convention on the Rights of the Child. I wonder if you could tell us how Health Canada will coordinate with other federal agencies and departments, not only within Canada, but outside of Canada that share responsibility regarding protection of the child. That was an issue that was raised and I wonder if you could put our minds at ease that those things are being taken care of.
Mr. Costen: I can try to answer that. When we talk about the bill being founded on a public health approach, what we really mean is there are a whole series of measures, some are legislative in the bill directly, some are programmatic with respect to say, for instance, programs that will help community-based organizations promote a better understanding of the risks of using cannabis all with a view to minimizing the harms and reducing the number of young people who use cannabis and who have access to it.
I could go on at quite some length to describe a variety of different regulatory controls that we imagine being putting in place that are very much inspired by the country’s success in using strict regulations to decrease tobacco consumption rates and so on and so forth.
There are many facets of the bill precisely and then the regulations and the programs that would follow that look specifically to protect children, to protect young people.
The degree to which we will closely monitor and evaluate the impact of those interventions and how those can correspondingly assist the government in meeting its obligation under the UN Convention on the Rights of the Child working with all the implicated federal agencies as well as the civil society organizations, I think it’s quite a complementary exercise.
Senator Oh: Thank you, witnesses. We had a gentleman, Mr. Len Saunders, who testified at the National Security and Defence Committee and told us that any admission at the border that a Canadian has ever used marijuana can immediately lead to a lifetime ban from entering the U.S. He personally sees one or two such cases every week.
To what extent has this been assessed? Do you know how many Canadians are aware of this situation?
Ms. Lutfallah: When legalization of cannabis is done in Canada, it will remain, obviously, a federal offence at the U.S. level. Right now the United States has the authority to declare someone inadmissible for cannabis use as well as other crimes related to cannabis.
At the end of the day, we’ve had discussions with our counterparts at Customs and Border Protection and they have indicated that they are not changing their posture at the border.
So what I mean by that is that when a Canadian goes to the border and is seeking entry into the United States, right now it’s not a mandatory question being administered by their officers. Based on the feedback we’ve received from them, from various levels, that will be maintained at the border. However, that being stated, if there are indicators on an individual’s files or there are indicators in their behaviour when they are in front of that CPB officer, they can be referred into a secondary examination.
At that point, there may be some type of questioning with respect to cannabis use and so forth, but it would be indicator-based and based on the information we have so far, it’s not going to be a mandatory question at the frontline.
Senator Oh: But we all know that U.S. immigration officers are not the friendliest persons in the world.
We have 1.6 million or more people crossing the borders every year. To my understanding, we already have, roughly, about 6,000 people who are turned back every year and there could be any reason, not necessarily all related to marijuana cases.
Global Affairs and CBSA have not been able to come to some kind of terms on marijuana?
Ms. Lutfallah: I’m sorry? Could you please repeat the last part?
Senator Oh: The CBSA has not been able to come to some kind of agreement with U.S. You said earlier they have no intention to change, am I right?
Ms. Lutfallah: They are not changing their posture at the border. They are not. We have been having numerous conversations with our counterparts in the United States from very high levels to the working level to understand what the impact would be on Canadians.
With respect to an agreement and having the Americans sign an agreement, I think our minister is very clear that it would be highly unlikely that the United States would want to sign that agreement because you are limiting the discretion of an officer at the frontline, the same way you are limiting the discretion of our officers. We need to look at every avenue and indicator at assessing whether or not you are a threat, whether you are a criminal seeking entry into our country. The same is true for the Americans.
Senator Oh: Thank you.
Ms. Lutfallah: In terms of Canadians being found inadmissible to the United States, I believe last year every day across the border 400,000 Canadians were seeking entry into the U.S. and less than 0.06 per cent were found inadmissible, and that’s for a variety of reasons. So it’s a very low rate of admissibility.
Americans coming into our country, on the whole, it’s also a very low rate of admissibility but it relates to DUI. A lot of them are found inadmissible for DUI. So we have the situation on both sides of the border.
Senator Oh: Do you have any comment?
Mr. Costen: Maybe a very general comment, which is in so many parts of the debate and the discussion about changing the legal status of cannabis. I personally think it’s helpful to remember that despite it being illegal today, we have, I think, about four or five million Canadians who report using cannabis right now. So the risk that is being discussed currently is legitimate, it’s real, but it’s also a risk that is present today, inasmuch as it will be potentially a risk going forward.
[Translation]
Senator Saint-Germain: Thank you for your presentations. My first question is for Mr. Costen. Concerning businesses, since the law will prohibit the import or export of non-medical cannabis, no issue at the border will lead to situations different from the current one.
Mr. Costen: That is correct.
Senator Saint-Germain: Fine.
My second question concerns citizens, and is addressed to Ms. Lutfallah. Once the law has been sanctioned and is in effect, so once cannabis has been legalized, the American federal authority at the borders will not change the monitoring and security measures that are already in place in any way. The principle of the continuity measure will apply, and existing controls will continue to be applied according to the same criteria; is that correct? No additional border control measure is planned at this time.
[English]
My question is only to be sure that once the cannabis bill is enforced on the American frontier, the federal authorities will still exert the same control with the same criteria and methods and that there won’t be changes in the way the control or the oversight is done.
Ms. Lutfallah: Can I just ask you for a clarification?
Senator Saint-Germain: Yes.
Ms. Lutfallah: Are you talking about American officials or Canadian officials?
Senator Saint-Germain: I’m talking about American officials for Canadians who travel to the United States or who do business in the United States.
Ms. Lutfallah: At the end of the day, my response remains the same. We’ve had numerous discussions with our counterparts, and as of yesterday there was a very high-level meeting in Washington, and their posture will remain the same.
Senator Saint-Germain: Thank you.
Senator Tannas: Mr. Costen, I wanted to ask a couple of questions to make sure that I understand. Forgive me, chair, if this has been asked before, but I want to talk about licensing for manufacturers.
Can you be clear on the intention around allowing or not allowing companies to get a licence that would be foreign-owned or foreign-controlled? Is that any kind of consideration in your licensing regime?
Mr. Costen: Thanks for the question. As it stands today, foreign ownership is allowed. There needs to be a headquarters in Canada, though. The licence is fixed to the place of business in Canada. So if a company is based in Canada and it has a parent company that is U.S.-based, as an example, that will be permitted.
Senator Tannas: Okay, so that’s very clear. You also mentioned that you want to make sure criminal elements don’t find their way into legitimate manufacturing. We have right now a very large percentage expected — they are active now. A large percentage of manufacturing capacity in the future is going to be in the hands of publicly traded companies. We’ve seen in the media that there have been some interesting corporations in tax havens and in places where anonymity is guaranteed that are already owning significant blocks of stock in these public companies.
How are you going to manage all of that? Is there a strategy that you’ve got? If a 100 per cent foreign-controlled company from Colombia decided to buy one of our manufacturers, this strikes me as an area where saying that you’re going to do it and actually doing it will be difficult.
Mr. Costen: Again, thank you for the question. In my remarks I made reference to the fact that we’ve accumulated, I think, some fairly relevant experience in this space over the last number of years, so maybe I can make a couple of observations around the nature of the controls as they exist today and how we foresee them being relevant in the future to maybe ward off some of the concerns that you are describing.
There are a couple of different features that get talked about with respect to our current regulations. They often get talked about in isolation of one another, and I’m going to try and talk to them together as a bit of a system, because they do work in consort with one another.
The first is actually with respect to the personnel. Who is running the operations in Canada? You may or may not know that the current regulations, as well as our vision, our proposal for how the new regulations would work, look to isolate and identify certain persons in the company who effectively have a controlling behaviour. Now, that is either controlling as in they physically handle and are responsible for the movement of cannabis, or they otherwise can influence in a meaningful way the behaviour of the company, so the board of directors, as an example.
You can’t get a Health Canada licence unless you’ve been vetted very carefully. In the interests of time, I’ll speed up. The vetting is not simply a criminal background check. Typically, it takes many months, if not a year. It involves many different levels of security agencies inside and outside of Canada, taking your example of Colombia perhaps, where we effectively do a complete 360 look at the person and their associations.
The association’s piece is critical because the regulations and the way the authorities are defined is that it’s less about understanding whether you yourself may or may not have a criminal background or a characteristic that is of concern to us. We understand that can actually be fairly easy to identify. It’s more the environment in which you have existed and worked. Do you have associations?
So the vetting is really oriented to understanding what are the networks in which you exist, and do any of those networks present a threat to the integrity of the system. Once we’ve satisfied ourselves that the universal “you” doesn’t present that threat, security clearance can be granted.
So there is a whole constellation of issues around the people. Equally, there are a number of regulatory provisions around the physical security of the environment, so how the operations are safeguarded in the context of the community, such as fences, video cameras, secured environments, so on and so forth.
The final dimension that helps maybe to answer how we ensure the operations are controlled adequately in Canada gets to reporting. So there is a significant responsibility on the part of a regulated company to provide us with very detailed information regarding their activities, production activities, what quantities are held in inventory, how much is sold and how much is destroyed such that we can track it to literally the last gram. Where we’re concerned is with the diversion of products out the back door or the inversion of product that’s been produced illegally and is being washed into the new market.
The last thing I will say, because I think it gets to the heart of your question about tax havens, what we don’t have today, which we hope to have in the future, is the ability to compel financial information whereby we can look not only at everything I have just described —
Senator Tannas: Right. Where the money went.
Mr. Costen: — but financial activities, again with a view of identifying and red-flagging anything that causes concern that we would take action upon as a regulator or where we would want to involve the law enforcement community.
It’s a bit of a long answer, but it is a really important question.
Senator Massicotte: On that specific note, I like everything you say, but the criminal element is extremely well organized. I remember a senior RCMP officer told me 10 years ago that there are some very prominent Canadian corporations which were basically financed by organized crime, and they washed the money. Today they are honourable, but not the last generation.
Let’s say you ask Senator Tannas to stand up to be a representative of this corporation. He can get paid a lot of money. You will find he’s clean, but he may be associated, without anybody knowing it, with organized crime.
I know all the procedures you are going through, but there have been immense contrary exceptions to that where we see organized crime is smart. They have a lot of money and can employ the best people. I’m concerned they are going to get around your controls.
Mr. Costen: I certainly don’t want to come off as sounding naïve or anything like that. I’m aware and accept that there are always going to be efforts to circumvent the rules.
To your point about associations, though, just so it is clear, understanding that that’s the behaviour, that they put in someone who is clean to front the company but there are a lot of strings attached and that person is able to be manipulated in nefarious ways, that’s what the vetting is really about. Going back, frankly, decades in understanding what the business associations were, the family associations, the tremendous amount of cross-referencing to understand whether — again, perhaps at another point in time I could share some examples of the nature of the associations that we’ve been able to identify through that close vetting.
It takes time, it involves a lot of different agencies, but what we are attempting to do is get at the very issue that you are putting your finger on, which is an understanding that there is a lot of fronting that can occur. We try to get as deep as we can.
Senator Massicotte: Good luck. I have to admit, I’m not 100 per cent convinced.
Senator Bovey: Thank you for your comment, insights and experience. My first question picks up on what Senator Cordy asked about Canadians going into the U.S. states where cannabis is legal. I want to do it the other way around. What about people who live in Alaska and Washington coming into Canada once it has been legalized and decriminalized in Canada, what will happen at our border?
Ms. Lutfallah: With respect to?
Senator Bovey: Americans bringing cannabis into Canada once it’s legal here and if they are coming from states where it’s legal.
Ms. Lutfallah: Where it’s legal?
Senator Bovey: Yes, such as Washington and Alaska into B.C. Let’s keep with the same example.
Ms. Lutfallah: At the end of day, importation and exportation of cannabis remains illegal.
Senator Bovey: At every instance it remains illegal?
Ms. Lutfallah: Yes.
Mr. Costen: It’s also a feature of their public education campaigns. Alaska has terrific ads for all of their residents, and one the messages they try to hammer home is it stays in Alaska.
Senator Bovey: To change tune a bit, we learned last week that U.S. Senator Schumer is introducing a measure to decriminalize marijuana on a national level in the U.S.
Some experts have argued that dropping cannabis from the schedule and that the overall problem scale would allow for the global war on drugs to become more manageable. I wonder if that’s a statement with which you agree. If it was dropped from the schedule, do you think the problem of the global war on drugs would become more manageable?
Mr. Costen: It’s a difficult question, as a public servant, to respond to. I think you’ve heard the ministers and the government describe one of the core purposes. It’s actually articulated at the front end of the proposed bill, that this proposal is thought to be a more effective control framework for minimizing all of the health and social harms associated with cannabis. I’ll offer that as a response.
Senator Bovey: I will push one step further, if I may. Do you see any opportunities for Canada being on the leading edge of the international community in drug reform policy?
Mr. Costen: I think with respect to cannabis for medical purposes, that’s a very specific example of where you are seeing quite a bit of leadership emerging out of Canada, whether it’s in the advancement of much-needed science and the development of research, and, frankly, whether it’s from the perspective of emerging industries. You see a number of other nations that are looking to Canada for a better understanding about how they might regulate cannabis for medical use. Once they are finished talking to the regulator about how to do it, there is a lot of interest in speaking to Canadian companies about what they do. Frankly, you are seeing quite a bit of movement in the cannabis for medical purposes industry in other countries now, such as Germany, Australia and many others.
Senator Ataullahjan: Thank you for your presentations.
Ms. Lutfallah, Minister Goodale has stated that as long as the Americans don’t change procedures related to marijuana use, there should be no impact on border wait times. However, if the procedures do change and more Canadians are directed to secondary screening, there could be an impact on border wait times.
Is that a discussion you have had with the Americans on their primary and secondary screening procedures and questions related to marijuana? If so, what have they indicated to you?
Ms. Lutfallah: We have had numerous discussions with our counterparts with respect to the impact of legalization and, in particular, in terms of border wait times. What I can tell you is they remain concerned in terms of the border wait time issue, and they would like to keep them down. As they are not changing their posture at the U.S. border, border wait times should basically be the same.
On the Canadian side, as I indicated in my opening remarks, we are adding additional officers at the front line, which will assist us in ensuring that border wait times will hopefully not be impacted. We are introducing mandatory questioning at the front line with respect to cannabis. With the additional officers, we are hoping the absolute impact of border wait times will be minimized.
Senator Ataullahjan: Just going back to what Senator Oh and Senator Cordy asked and the question of 44 per cent of Canadians going to the States who have admitted to, at some point, having smoked a joint, on social media I was reading recently — and I’m sure you’re aware of it — a Maclean’s article where a German married to a Canadian crossed over and bought a legal joint. Let me read it. It’s called “flagpoling.”
He “recently moved to Vancouver with his Canadian wife.” He “went to the U.S. in order to activate his working holiday visa, which involves leaving Canada and re-entering with proper paperwork a practice commonly known as flagpoling. The couple decided to make a day trip . . . .”
Within minutes of crossing into America, “there was a huge sign off the highway advertising joints . . . . So we went there and bought some weed.”
They continued on towards Seattle, where the couple smoked a little, toured the city . . . .
— and then came back.
When they came back to Canada:
“The officer asked if I had smoked any cannabis, and I said yes . . . . Then he asked if I had any on me, and I said yes.”
The Canadian authorities gave him no reason to be alarmed. They confiscated the drugs and asked him to come back within 24 hours, when the marijuana’s effects would be out of his system.
Back at the U.S. border, they asked him why he was coming back so soon and it ended up with him being handcuffed and taken to a detention centre. Because he didn’t have legal status in Canada, he was sent back to Germany and it became a four-week ordeal. So while we hear there is going to be no issue, in the stories that we are hearing, there is a huge issue.
Ms. Lutfallah: Obviously, that’s an unfortunate case, but I think that’s a very peculiar one. I don’t think that’s going to be representative of what’s going to happen at the border in total.
As I indicated in my opening remarks, it will remain a federal issue at the U.S. border. In the case that you’re referring to, that person was sent back into the United States and obviously that raised suspicion and led to a lot of questioning with respect to why he was being sent back.
If you recall, during my first response I referred to indicators. Indicators were there for an officer to start peeling the onion back and understanding what happened. I don’t think that’s a representative case, though.
Senator Ataullahjan: Yet he says he admitted to smoking a joint, basically. He told the truth. It’s the same as the case of the student who was in the states who told the truth that he had smoked. It’s a famous case; we’re all aware of it. A year later, when he had a lawyer apply for him to go back, his application was turned down, ironically, on April 20, the international day of celebration for cannabis culture. He feels he will never be allowed back into the States.
We can say that this is an isolated case, but there are so many of these isolated cases and we’re hearing about them. There are a huge number of Canadians who do admit to smoking pot so I think they do have reason to be worried.
Senator Dawson: Senator Ataullahjan, I know we usually agree on nearly everything, but as you are well aware, that’s under the existing legislation, in a world where we put our heads in the sand and make believe there’s no consumption and we don’t have any awareness programs and we don’t have any education for people so that they don’t do what can easily be called stupid things. There is no provision in the bill to stop stupid things from being done, whether it’s the new legislation or the old.
Is this not a case that it’s not the new legislation that’s the problem, it’s the lack of awareness? An awareness program will be put in place and it will help people to be more up-to-date on what they are allowed and not allowed to do and what they are allowed and not allowed to say.
Mr. Costen: I can provide a general response, building on what my colleague has said.
The point is there’s a lot of misunderstanding and a lot of mythology about cannabis and about the rules pertaining to cannabis. At all levels of government, not only at the federal level but from the provincial and territorial perspective all the way down to cities and municipalities, there is, I think, a very clear interest to prioritize and make sure that the citizens of this country understand what the rules are, how to comply with those rules and to try to level the playing field across the country so that there’s a very fact-based understanding about cannabis, what it means to use it and the harms associated with it.
But people also need to know what the rules are: Where am I allowed to use it? How much am I allowed to use? How will it affect me? Where can I take it? Can I give it to someone or not?
I think those questions and many others are at the heart of what many governments are presently investing quite a bit of money and time and effort to try and answer to make sure that Canadians have that information so that they can comply with the rules, when and if they change.
Senator Ataullahjan: You say that Canadians need to be educated and they need to find out what the rules are. Do you expect ordinary pot users or cannabis users to take the time to find the rules? Do you think they would? Are the rules that easily available?
Mr. Costen: That’s an interesting question. There are millions of consumers today, some of whom buy it from a friend or on the street, some of whom buy it from stores that look quite legal to the unassumed and to the uninformed.
I can speak from a personal, professional perspective. There are literally hundreds, if not tens of thousands, of people who are working right now to get ready for the new system at the provincial, federal and local levels and all of those efforts in one way, shape or form are geared to making sure that when and if implementation happens, it happens smoothly, people understand what they are legally allowed to do and the consequences of not doing those legal things anymore.
It’s not necessarily a simple or straightforward thing. It’s going to take time and effort. Do I think that there’s momentum and an awareness that the point you just raised is really fundamental? Absolutely.
The Chair: Before we go to a second round, I have a couple of clarifications for elaboration.
Mr. Costen, you’re stating now that when Bill C-45 comes in there will be nothing different in the way that you will be treating the export and import of marijuana or cannabis; is that right?
Mr. Costen: Yes.
The Chair: Is the same system there for all other drugs that are prohibited narcotics? Or are there variations with the schedules?
Mr. Costen: Again, I don’t want to oversimplify the response, but the simple answer is yes. The conventions that really define what the signatory nations must comply with are not cannabis-specific. It is to all controlled substances and presently cannabis is one of those.
For instance, if an entity wanted to engage in some type of clinical trial and they wanted to move a controlled substance from one country to the next, that system that I described in my remarks about a fairly detailed series of permission requests, both the importing and the exporting countries have to agree. It’s a one-time transaction. It’s very closely monitored.
Those same provisions would apply, whether we’re talking about cannabis or a precursor drug, for instance, that would be controlled, and there are literally hundreds of controlled drugs.
The Chair: If Bill C-45 goes through, will you be doing anything to apprise foreign governments of the fact that nothing will change vis-à-vis the use, exportation and importation of marijuana? When we’re talking about education, there will be people in other countries who are going to read about what Canada is doing, and they’re going to say “Oh, it’s legal now,” and they’re going to presume that perhaps they can bring it in.
My concern is that if we find them crossing the border, their defence is “I thought it was legal now,” and it’s such an unusual area, and the average person doesn’t really think about importing and exporting.
Is there going to be education outside of Canada so that we don’t mislead people into thinking it’s okay? That’s one part.
The other is this: Do we have some assurances that the companies that are now out there in other countries are going to be the same companies as previously, or are they going to see an opportunity, building on what Senator Tannas was saying, to change who they are to come into Canada?
Mr. Costen: I’ll do my best with all of that.
With respect to your first set of questions about general global awareness, there are a couple of things that are probably relevant in responding to that.
I’ll start from the very general and go to the very specific. We don’t keep these sorts of things. I agree with your point that it is a fairly esoteric little bit of rule-making, but, believe me, if you’re in the business of thinking about these sorts of things, what I described to you with respect to how to get a permit, what’s required, what’s expected of you if you do get a permit, we don’t make a secret of that. It’s set out in great detail on our websites, and it’s still, to date, a relatively contained, regulated industry. So it’s part of our regular communications. We want, as the regulator, to ensure that the industry is compliant. One of the strategies that we deploy is to push information out, to make sure that they understand what the rules are.
As it pertains to the rest of the world, there are a couple of things. Again, going from the general to the specific, we have, through Global Affairs, networks that help us to push meaningful information into the hands of foreign governments. In this particular case, we, over time, have issued bulletins to all of the Canadian Trade Commissioners that are in offices throughout the world because we understand that there is enough curiosity or genuine interest in these questions that we want to make sure that Canadian officials, as our representatives in other countries, are equipped with, again, much of the information that I’ve given you. That’s part of our communication strategy.
The other piece is that — again I made reference to it in an earlier response — it’s not a transaction that happens in isolation. Often, there is another country out there that is actively promoting the development, let’s say, of scientific inquiry on cannabis or is going to create a regulatory system for medical cannabis. The lines of communication with us are typically open long before they are opening their markets. Whether it’s been Australia or the Czech Republic or Germany, the ability for the two governments to talk to one another and make sure that each has, first of all, a common understanding of what medical and scientific means, that the transaction is coherent with respect to the various laws that apply in each country, those conversations are happening long before a permission or an application for a permission is even presented to either government.
There are things that we do to promote general awareness, and then there are things that we do specific to each transaction to make sure that each country that’s involved is fully aware of each other’s rules. We’re quite cautious about these sorts of things.
The Chair: Just to follow up on that, the definition of “medical” or “scientific” can be a floating term, depending on which country you are in. You seem to say that there’s a trust basis in the partners that you’re going to deal with. It’s a bit like tax law, when we first started having tax treaties, we saw the advantage of having the tax treaties, but then we found that the way information was used in these countries and what occurred there wasn’t really to our standards.
Certainly, parliamentarians have questioned, and, I think, even our governments, in the past, have questioned: First of all, is this a country we want to deal with?
Is there anything built into your regulations that has the same thing? If someone says, “We’re only doing it for scientific, and we want to do X, Y and Z,” do we do some discretionary judgments on whether this is a country we want to deal with and accept their definitions?
Mr. Costen: You’re absolutely right. As I understand it, the conventions themselves purposely don’t hardwire definitions into any of the three conventions. My understanding is that that was actually a deliberate choice made in the 1960s when they were drafting them. Partly, it was informed by an understanding that there are certain cultural understandings to what medicine is and what scientific inquiry is, and the two nations that are involved in the transaction have some discretion to base on cultural norms and prevailing views what a medical practice is and what scientific practice is.
There is some, I think, intentional discretion that’s afforded each nation, based on whatever their unique realities are. So that’s the context.
We are absolutely very interested in understanding the precise nature of the purpose of the import or the export. It’s actually kind of central to our assessment and determining whether or not to grant the permit.
If there are things that give us any reason to be concerned, we can either make a decision based on that and not issue the permission, and, simply, it won’t happen. Or, frankly, it can compel us to ask for more information, or we can require certain safeguards. But that scrutiny really starts and ends with understanding why this transaction is happening. How is it going to happen? Who is involved? What are the safeguards that are put in place? Only once we’re fully satisfied with the answers to all of those things will we actually go ahead and say, “Here is the permission.”
The Chair: I have a few more questions. But I do have a second round, and we’re coming to the end.
Senator Massicotte: I’m a little bit curious; I have a stupid question for you. The most important advice you can give anybody going to the United States is to say, no matter what the reality is, “I have never smoked any marijuana.” That’s what they have to say because U.S. law is such that, if you did it 10 years ago — how do you communicate that?
Ms. Lutfallah: You don’t. I understand what you’re putting forward, but, at the end of the day, any Canadian seeking entry into the United States should be answering those questions truthfully because the implications of lying are very far-reaching and could be very detrimental. That’s not the type of counsel, obviously, that I believe anybody should provide a Canadian approaching the border.
Senator Massicotte: I agree, but it’s a conundrum. Thank you.
The Chair: Since we’ve taken the liberty of making some comments, I’m going to make one comment.
Foreign Affairs, over the years, has always struggled with giving the information to Canadian citizens to, obviously, tell the truth but also the repercussions that, when you go to another country, the Canadian law does not apply. So, if you go there, you’re not going to be subject to the same legal processes. You’re not going to be subject to Canadian law. You’ll be subject to the country you’re entering. That’s been a very difficult lesson, especially for young people, and we know those that have been caught in some countries and had to pay the ultimate price in some of the cases.
The worry is that education takes a long time, and this is going to be new. It’s going to be not what’s been happening at the border now. It’s what might happen with human behaviour. I’m hearing that you’re thinking about it, which is good, but I think it is unknown territory what will happen with this shift, should it happen.
I trust that you’ve been working on this, but you will continue to work on understanding that education takes a long time and that it needs to be done in many forms, for many Canadians, in many different areas. So I think it is going to be a monumental task. I trust that the officers and officials will be trained sufficiently and given the resources to actually do a phenomenal education component, which I think is another one we haven’t spent as much time on as I think we would like to.
I know, Mr. Costen, you have to leave. Therefore, I want to thank Mr. Costen.
Mr. Pellmann, you, I think, were the support. I guess he handled the questions well enough that you didn’t intervene.
Ms. Lutfallah, thank you for your time, and, again, thank you for coming a second time to accommodate our schedule.
(The committee continued in camera.)