Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 40 - Evidence - April 18, 2018
OTTAWA, Wednesday, April 18, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred the subject matter of those elements contained in Parts 1, 2, 8, 9 and 14 of Bill C-45, met this day at 5:13 p.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Welcome this afternoon to our meeting on Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts.
First, we apologize to our witnesses who were patient enough while we were caught in the chamber with a vote.
In order to manage the availability of the second panel that involves the Association des médecins psychiatres du Québec, as Dr. Karine Igartua cannot be available later in the afternoon, I seek concurrence of the witnesses who are supposed to appear at 4:15 to hear Dr. Igartua first. After that, you would proceed.
[Translation]
I would now invite Dr. Karine J. Igartua, President of the Association des médecins psychiatres du Québec, to present her point of view on Bill C-45.
[English]
Dr. Karine J. Igartua, President, Association des médecins psychiatres du Québec: Thank you very much for having me here and for accepting to hear what the psychiatrists from Quebec have to say.
We have been very concerned about the bill since its inception. In fact, this whole thing started when we did a survey of our members to find out. It was overwhelming that the psychiatrists in this province were very concerned about the impacts on mental health of the legalization of cannabis.
Since I have only five minutes to speak with you, I will bring up a bunch of things in bullet points. If you want to ask me questions about specifics, I’ll be happy to answer them afterward.
Cannabis consumption is prevalent in youth. The project of legalization is already contributing to the myth that cannabis use is safe. The concentration of THC in the illegal markets has grown from approximately 4 per cent in 1995 to 12 per cent in 2012. In other jurisdictions where cannabis was legalized, the concentration of THC grown in legalized cannabis has increased even more rapidly than in illegal markets to levels up to 30 per cent. Because Colorado and the Netherlands saw an increase in the THC potency of the cannabis strains being sold in their territories, the governments attempted to modify their legislation to limit the maximum concentration of THC. They failed to do this due to the growing cannabis lobby.
Cannabis consumption predisposes vulnerable youth to developing psychotic illnesses. The earlier youths begin consuming, the more potent the THC and the more frequent the use, the higher the risks of psychosis. Continued use worsens the prognosis of psychotic illness.
The Chair: I am sorry, Dr. Igartua, we’ve lost you.
Continue to speak normally and we will check the volume and the sound.
Dr. Igartua: Could I move the microphone at all?
The Chair: Don’t touch anything. It seems to be working, for now. I will ask you to go back to your last sentence because we lost that one.
Dr. Igartua: I was saying that 50 per cent of those who develop a toxic psychosis, so a psychosis secondary to cannabis, will develop a schizophrenia-formed illness in the subsequent 10 years.
Because the earlier use of cannabis is related to a greater risk of dependence and a reduced scholastic achievement, the Association des médecins psychiatres du Québec is very concerned about the legalization of cannabis in Canada and hopes that a certain number of safeguards will be put in place in the context of this bill.
First, every effort should be deployed to reduce cannabis consumption in teenagers and young adults. We know that the brain continues to mature to age 25. The endocannabinoid system, which helps the brain mature, is very active in adolescents and young adulthood. It is very sensitive to THC, to cannabis and to other cannabinoids.
The AMPQ had recommended that the minimum age for legal purchasing of cannabis be set at 21 and not at 18. Though science would have us even suggest age 25, age 21 is a compromise between the age of majority in the country arbitrarily set at 18 and the age of brain maturity, which is more around the age of 25.
If, for reasons other than mental health, governments decide to keep the minimum age at age 18, we would ask that the maximum THC concentration be determined at the outset and not to wait and make the errors that have been made in other jurisdictions.
We proposed to the Quebec government a maximum of 15 or 16 per cent for those with mature brains and that we half the concentration of THC for those under 21, so that we restrict it to a lighter form of THC around 8 per cent.
We believe the method of distribution should remain public, should not be private and should not be for profit, without any publicity, and that all the monies be reinvested in prevention and treatment of mental illnesses.
The THC content should be clearly identified on packaging. It should be neutral and without any branding.
Educational materials should be developed to teach teenagers about the effects of cannabis, what the potential risks are and how to reduce the risks when consuming. We know that about 30 per cent of teenagers consume. We need to teach them how to mitigate the risks of their consumption.
In fact, the AMPQ was so concerned about this that we’ve already put out some educational materials. You may have seen them on our website. We have a poster for distribution in schools that teaches about the effects of cannabis on the brain and the potential risks. We’ve also put together a PowerPoint presentation for many of our psychiatrists who are volunteering in high schools to teach about it because, as I said, we are quite concerned.
The drug education curriculum ideally would go beyond teaching about the risks of cannabis but also include a section on the motivations for using; alternative strategies for treating things like anxiety, sadness and boredom that happen in teenagers; and strategies for resisting peer pressure. There would be a bit more of an emotional education piece to it.
Finally, given that accidental cannabis poisoning incidents of young children increases with homegrown cannabis, and given that the plants cannot be hidden away like liquor in a liquor cabinet but rather need a lot of sunlight to grow, it is conceivable that people who grow cannabis at home will have these plants out and in the reach of youngsters.
Therefore, we think it would be more prudent if the government, at least in this first bill, were to prohibit the home growing of cannabis. This would also do something to ensure the quality and safety and ensure there are not many contaminants.
I’d be happy to tell you more about brain development, psychosis, dependence and school failures during the question period. I am very mindful of not taking too much of your time, so I will leave it at that for now.
The Chair: There definitely will be an opportunity for honourable senators to ask you questions to complete your presentation. Thank you.
I would invite from the Canadian Bar Association, Ms. Gaylene Schellenberg who is accompanied by Mr. Paul Calarco. Welcome.
Gaylene Schellenberg, Staff Lawyer, Canadian Bar Association: Thank you for the invitation to bring the views of the CBA Criminal Justice Section on Bill C-45 to you today.
The Canadian Bar Association is a national association of over 36,000 lawyers, law students, notaries and academics. The Criminal Justice Section represents a balance of Crown and defence lawyers from across the country.
An important aspect of the CBA’s mandate is seeking improvement in the law and the administration of justice. It’s that aspect of our mandate that brings us to you today.
With me is Paul Calarco, a member at large of this section and a defence lawyer practising in Toronto. He will present the highlights of our submission and respond to your questions. Thank you.
Paul J. Calarco, Member, Criminal Justice Section, Canadian Bar Association: Since 1978, the CBA has advocated a different approach from that historically been taken to the possession and use of marijuana.
Experience has demonstrated that absolute prohibition has not worked. Instead, it has resulted in the distribution of this drug on the black market, spurred the growth of criminal elements and led to many people having damaging criminal records. At the same time, those who needed this drug for legitimate medical purposes were until recently denied access, forcing them to purchase it illegally. A better system is required.
In 2013, the CBA urged the government to adopt a harm reduction model for drug use, seeing it as a social and medical issue rather than primarily a criminal law matter. This is not to say, and I stress, that the CBA is blind to the harms associated with drug use. Simply put, widespread criminalization has not worked.
Bill C-45 would take a regulated industry approach to one part of drug use and distribution in Canada. It’s a major legislative initiative, but as with any major change it is more important that this be done right rather than just done quickly.
The CBA views the bill as a positive step, but we have serious concerns with the legislation. I wish to address a few of these.
First, the bill would too often result in people moving from lawful activity to serious criminality with severe penalties where there is little factual difference between their situations. We urge careful consideration to the everyday examples the CBA Criminal Justice Section and others have provided as to how these proposals would impact ordinary Canadians.
Second, the sentences in Bill C-45 should be reconsidered. The proposed penalties are far beyond what is being imposed in courts in our country. Even where large marijuana grow operations have been found, sentences of 14 years have not been considered.
An indictable offence under this bill may be punished by a maximum of 14 years and massive fines, or five years less a day for simple possession. Even if offences are prosecuted summarily, jail terms and fines are high.
Conditional sentence orders are not available, whether the Crown proceeds by indictment. Discharges will not be available at all since the maximum penalty is 14 years.
We suggest that legislatively determined sentencing ranges should reflect actual sentences imposed and that alternative dispositions, including conditional sentence orders and discharges, be permitted.
In addition, the CBA urges that until the current legislation is replaced, prosecutions should be conducted in a manner consistent with the spirit of the replacement legislation and non-custodial dispositions sought where reasonably possible. We have long opposed mandatory minimum sentences and suggest that these not be imposed in the interim.
Third, the ticketable offences regime of clauses 51 to 60 is quite limited, referring to a maximum of 50 grams of cannabis or to five or six plants and, in regard to cultivation, one to two plants over the legal limits. Consideration should be given to a wider range of ticketable offences.
We caution as well that the discretion permitted by certain authorities be carefully monitored. Discretion may be a means to further marginalize vulnerable or racialized groups. The legislation should be amended to require, rather than permit, the ticketable offence regime to be used unless it is inappropriate in those circumstances.
Fourth, the proposals are not reflective of social conditions in many parts of our country where people may not have access to legal sources of cannabis and are not allowed to have longer term supplies.
For example, criminal provisions set 30 grams for adults, five grams for youths and four plants per residence, no matter how many people are living there. The transportation provisions are restrictive, as are prohibitions on non-budding or flowering plants. This means people who may be living in more communal settings, residing in remote areas or simply wish to transport a supply for a number of willing adults may be subject to severe penalties.
There is no way for youths to obtain a legal source of cannabis. While it is unquestionably desirable to educate and discourage young people from using drugs, it is clear from past experience that there will be use by some youths.
This proposal would create a black market, not eliminate one. While a youth may distribute up to five grams of cannabis without criminal penalty, and acknowledging that youths will share this substance among themselves, the act does not allow for a legitimate source of marijuana to be obtained.
Finally, at present, the regulations, which are an essential part of the new substance control regime, have not been published. In moving toward a regulated industry model, industry must know what is permitted and what is not.
A breach of the regulations can result in imprisonment for three years and heavy fines of up to $5 million, but business cannot prepare for whatever the regulations may be and business must be able to order its affairs to remain on the right side of the law.
I would be pleased, at the appropriate time, to answer any questions that honourable senators may have.
[Translation]
The Chair: I would now like to give the floor, on behalf of the Barreau du Québec, to Mr. Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs; Pascal Lévesque, Chair of the Committee on Criminal Law; and Mr. Luc Thibaudeau, Chair of the Committee on Consumer Protection.
Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec: Mr. Chair, members of the committee, my name is Nicolas Le Grand Alary and I am a lawyer with the Secretariat of the Order and Legal Affairs of the Barreau du Québec. With me are Mr. Pascal Lévesque, Chair of the Committee on Criminal Law, Barreau du Québec, and Mr. Luc Hervé Thibaudeau, Chair of the Committee on Consumer Protection, Barreau du Québec.
It is with great interest that the Barreau du Québec is here to testify before you with regard to Bill C-45, the cannabis act. As a professional order, the mission of the Barreau du Québec, the Barreau, is to protect the public. There are various societal, legal, health and public safety issues around the legalization and regulation of cannabis that are of great interest to the Barreau in the exercise of our mission. We thank the committee for having invited the Barreau to share its position and regulation of cannabis in Canada.
Generally speaking, and without wanting to take a position on the advisability of legalizing cannabis, the Barreau is in favour of Bill C-45, which proposes a complete framework and clear measures regarding the production, distribution and sale of this substance. We would however like to go over some of the major issues that deserve to be examined from the perspective of public protection. To speak to you about the issues of the framework as it applies to minors, I will yield the floor to Mr. Pascal Lévesque.
Pascal Lévesque, Chair of the Committee on Criminal Law, Barreau du Québec: Thank you, Mr. Chair. The cannabis act would criminalize the possession of cannabis more strictly for minors than it does for those of 18 years of age or more, by imposing five-gram or less limit on minors, as opposed to the 30 grams or less that will be allowed for persons of 18 or more. In this connection, the Barreau wants to remind you of the importance of not criminalizing minors for behaviours that are allowed for adults. We have to remember that this is a particularly vulnerable population that needs to be adequately protected.
In this regard, it bears mentioning that the criminal justice system for adolescents is different than the one for adults. It is based on the principle of lesser moral guilt, and must emphasize the social reintegration and rehabilitation of youth. We must avoid subjecting them to the serious consequences that a criminal conviction may entail.
In light of the importance of avoiding criminalizing minors for the simple possession of a quantity of cannabis that is over the legal limit, we recommend that you decriminalize the possession of less than 30 grams of cannabis by youths, and, if need be, that a criminal offence be created at the provincial level for possession. In this way, the five-gram limit would be increased to 30 grams. For smaller amounts, the provinces could create a non-criminal offence.
We would also mention that offences included in the cannabis act do not apply to minors. According to this act, persons of 18 years of age or more who commit certain offences may be prosecuted by means of a summons.
We are thus imposing a criminal process on a population that is particularly vulnerable. Consequently, we consider that awareness-raising, education and prevention are the best means to eradicate the consumption of cannabis among young people. Indeed, we should not turn to the criminal justice system to offset an inadequate prevention and education system.
I now yield the floor to Mr. Thibaudeau, who will speak to you about labelling standards in the cannabis act, and about the sale of cannabis by the provinces.
[English]
Luc Thibaudeau, Chair of the Committee on Consumer Protection, Barreau du Québec: Mr. Chair and honourable senators, I will try to bring forward a different light than the ones you have heard at this committee. I specialize in consumer law and in retail law. This is not droits de la consummation. To use a pun that was made before the National Assembly in Quebec, this is a consumer protection law.
You’re going to tell me that provincial assemblies have jurisdiction over private contracts and so on, but my answer is that with this bill the federal government, in my view, has forgotten important aspects of the legalization of cannabis, which are the distribution of the product, the retail sale of the product, the advertising of the product and, most important, the warnings.
I share the opinions of scientists, physicians, doctors and criminal lawyers who have come before you and have suggested to the government that it is important to warn society about the dangers to health that cannabis can bring.
You are going to tell me that it’s possible to operate such warnings by way of regulation. We at the Barreau du Québec believe that the government has to be more severe than that. It has to set standards in the act that will warn society about the dangers of using marijuana for the simple reason, as an example, not to be stuck with a class action against the government 10 years from now, stating that you should have warned us and now you’re liable and we’re suing you for hundreds of millions of dollars.
Finally, the acte de cannabis acknowledges the power of the provinces and of the territories to authorize and to supervise the distribution and the sale of cannabis under the reserve of respecting minimal federal conditions enumerated in a list.
Again, this list is not exhaustive. We believe the government should take advantage of this opportunity in virtue of its power under section 91.2 of the Constitution Act to regulate trade and commerce and to set strict and severe minimum standards that will apply to all provinces with respect to sale and distribution of marijuana. Thank you very much.
Michael Bryant, Executive Director and General Counsel, Canadian Civil Liberties Association: The position of the Canadian Civil Liberties Association on this bill is that it indeed legalizes the industry but it recriminalizes the usage of cannabis for consumers.
The bill lays out a minefield of criminality for ordinary Canadians. Thirty grams, whatever that is, in a public place is a crime. Five grams, whatever that is, for youth is a crime. The 18-year-old passing a joint to a 17-year-old is a crime punishable by 14 years in prison. Five plants, clouer-moi, is a crime. A 101-centimetre plant is a crime.
The concern is that people think the substance is being legalized and the reality is quite different. The search and seizure powers found in this law are very disturbing if you think that it’s a legal product. There are police powers to enter without a warrant in exigent circumstances. There are no exigent circumstances justifying kicking down a door in the middle of the night for possession of orchids, let alone Smirnoff, so there must be something about this particular product that is criminal. That ends up being the circular point and the great circular problem with this law.
The forfeiture powers are the same forfeiture of property powers that exist for money laundering and anti-terrorism legislation. If you think that this is a legal product, obviously, think again, the concern being that farms with one too many plants may find that they are subject to seizure of the entirety of the property by the Crown and the agricultural equipment that goes with it.
The Centre for Addiction and Mental Health provided an important credibility boost to the signature policy of the current government when they came out in favour of legalization. In their report they were quite clear that what was needed was health-focused regulation. This is crime-obsessed regulation, not health-focused regulation.
I understand, if you ask the Department of Justice to take the lead on a bill, this is what you’re going to get. As the proud thirty-fifth Attorney General of Ontario, I know well the great strengths that justice ministries have. Major project management or health-related regulation is not one of them. The economic opportunity that has been lauded by many may exist for some, but not for the half million Canadians who have a criminal record today resulting from a simple cannabis charge.
We know, thanks to the John Howard Society and its report this year called The Invisible Burden, that a criminal record is basically a lifetime bar against employment for all but the low-wage economy. Even then, I know many former clients of when I was practising criminal defence law who can’t get a job because of that criminal record.
I am happy to take questions, but the provisions that are particularly problematic from the perspective of the CCLA are regarding search and seizure and the forfeiture of property. I am particularly concerned that police, upon smelling cannabis on somebody, will then have reasonable and probable grounds to stop and search people.
Whenever that arbitrary power arises as such, you get practices like racial carding. You get racialized communities, poor communities, addicts and people who live on or near the street, being treated differently from everyone else. You get the criminalization of a culture.
This was supposed to be the legalization of a culture. It turns out it’s the legalization of an industry. It is good news for the shareholders, not so much for the customers. Our advice to people is to wait until the regulations are promulgated, wait until the provinces have all passed their legislation and wait until those regulations are passed, because you’re not going to want to find yourself unwittingly committing a crime.
The Chair: Thank you very much, Mr. Bryant.
[Translation]
Senator Dupuis: My first question is for Dr. Igartua. According to the information we heard from committees and groups of physicians who testified here or elsewhere, there are physicians who support the consumption of cannabis, including by children, because in their opinion this product appears to provide pain relief for pain that is difficult to manage with other products. My question to you is as follows: to your knowledge, are there any psychiatrists in your association who provide a medical certificate, as stipulated in the act — we understand that they don’t have the right to prescribe cannabis, as it is not a medication — to patients, for the purpose of relieving mental health issues and the like?
Dr. Igartua: We have to distinguish between two things: physical pain and mental pain. With regard to physical pain, there is data that indicates that high-CBD content cannabis can be useful to reduce severe physical pain. As for mental pain, there really are no good studies that allow us to determine whether cannabis could be useful in psychiatry or for the treatment of mental illness. To my knowledge, none of my colleagues prescribe that specifically for mental issues. In pain clinics, there are people who will authorize the consumption of cannabis with a high CBD content.
That is why when we talk about imposing a maximum content, we are talking about THC for the moment, because THC is the substance that provokes psychosis, and that will cause schizophrenia to appear 2.7 years earlier among those who consume it. THC worsens the prognosis. There are certain studies that are beginning to show that CBD, however, has antipsychotic properties and consequently that it could potentially be useful, but we are far from having types of cannabis that contain zero THC and a high CBD content. That could be the case in the future. For the moment, insofar as mental health is concerned, we are quite worried about THC concentrations, particularly for young people whose brain is still developing.
Senator Dupuis: Thank you. I would have a question to put to Mr. Thibaudeau. Do I correctly understand that the position of the Barreau is that you feel that the standards concerning distribution, advertising, packaging, etc. should be specified in federal legislation and should not be left to eventual regulations or even to future provincial regulations?
Mr. Thibaudeau: That is correct.
Senator Boisvenu: My question is for Dr. Igartua. I thank you, and I congratulate you for the work which the Association des médecins psychiatres has done in Quebec to analyze these two bills. This was very serious research work.
My question is about the age limit for cannabis consumption. I know that your association had asked that the age be set at 21 or 25 rather than 18, as the bill states. I am also concerned about another element of the bill personally, as a parent and a grandfather, and that is the possibility that children of 12 can have a certain quantity of marijuana in their possession. If we adopt a bill where the age of consumption is set at 18, and we allow children to have a certain quantity of cannabis in their possession, what do you think the long-term consequences will be if we keep those two elements in the bill?
Dr. Igartua: We have to limit consumption by young people. If we maintain those things in the bill, the message we are sending to the population is that this is acceptable for teenagers. It may be acceptable for certain adolescents, but the problem is that it’s like Russian roulette, because we don’t know in which adolescents the consumption of even a single joint will trigger psychosis. Others may be able to smoke daily for two or three years before they develop paranoia, or hallucinations, et cetera. But for certain people, a single joint will trigger all of that.
Unfortunately, science has not reached the point where we can say that cannabis is dangerous for this or that person, but not dangerous for another. When we send out the message that it’s acceptable for a child of 12 to have cannabis in his possession, we are telling young people that it isn’t dangerous. We are already hearing it said in clinics that the government is going to legalize cannabis and that it would not legalize it if it were dangerous. We are already hearing that message, and legalization has not yet passed into law. And in fact, when I see patients and ask them whether they consume alcohol or drugs, I am forced to also ask them whether they smoke pot, because I consider cannabis to be a drug.
I think we have to be careful and convey the following message: “This substance may be dangerous; it will affect your motivation, your cognitive abilities in school, and the way in which your brain structure will develop as a teenager and young adult.” If you don’t put out those messages, there may be an increase in the use of cannabis and in all of the mental issues that are associated with its consumption.
As for criminalization, I think we have to put the emphasis on criminalizing the sale of cannabis much more than its possession, because even though I am not a lawyer, I see this as somewhat akin to the issue of prostitution. We criminalize the individual who encourages people to consume the product. In this case, it’s the reverse; we need to criminalize the sale and not the possession. That’s my way of looking at it.
Senator Boisvenu: Thank you very much.
Senator Eaton: My comments are addressed to the lawyers.
[English]
Part 2 of this bill describes the ticketing system. It says the conviction is entered in the judicial record of the accused. It also says the record must be kept separate and apart from other judicial records and must not be used for any purpose that would identify the accused as a person dealt with under this act.
I don’t know the implications for people who are asked questions when they are crossing the border. I don’t know who will have access to this so-called judicial record.
You’re legal experts. What should people do when they cross the border and are asked by customs agents? What kinds of protections will we have?
[Translation]
Mr. Lévesque: Obviously, we think that we have to mitigate the consequences for these people as much as possible. That is one of the Barreau’s concerns. What is happening with that file? What do we do with it? Who is in charge? Who transfers it? Whether in the bill or in regulations, we have to include a system of safeguards in order to prevent people from obtaining information that does not concern them, so as not to cause injury to the persons in question. The intent of this provision is to target criminal offences, but less serious ones, objectively. We need a non-judicial process. We were concerned about having a separate record. I agree with you. This could prevent someone from crossing the border.
Senator Eaton: If I am crossing the border and I am asked whether I smoke marijuana, and I answer that I smoke at home in Toronto, but that I don’t have any on me, I think they can stop me. If I answer that I don’t smoke, I’m lying.
Mr. Lévesque: The principle is that you have to tell the truth to a customs officer. Then it’s up to the customs officer’s discretion. It’s not recommended. I am going to tell everyone to not lie to customs officers. That being said, what can we do to avoid this uncomfortable situation, where an American customs officer tells you that if you consume marijuana, you don’t have the right to enter? We would have to tell the consumer, if only in regulations, policies and directives, what he has the right to say or not say when he arrives at the American border. We also need an agreement between Canada and United States regarding the questions that can be asked.
Senator Eaton: Thank you.
Senator Gold: My questions are for the lawyers in particular. Several people have pointed out the importance of not criminalizing youngsters’ behavior. We also must decide at what age possession will constitute a criminal act. If I understood correctly, the Barreau du Québec representatives recommended that the possession of 30 grams not be considered a criminal offence among young people. I invite you to make your comments, including Mr. Bryant.
[English]
How could you reduce the impact of the exposure to the criminal justice system on young people without necessarily encouraging, validating or legitimizing their use of this substance?
Mr. Bryant: A short answer would be to take the same strategy approach that was taken with respect to denormalizing tobacco. The federal and provincial governments have been extremely effective in denormalizing tobacco and reducing its usage among youth without any criminalization. It did not involve the criminal justice system. It involved advertising, consumer affairs and distribution. At no point did it need involvement with criminal law.
Criminal law is obviously the bluntest tool we have in Canada to achieve public policy ends. Whether or not deterrence works from the perspective of social science is clear. It doesn’t work. It’s not going to be deterrence or criminalization that will work, in my submission. It would be to take the same approach as denormalization.
Mr. Calarco: It is absolutely essential to educate young people about the dangers of the use of drugs, at the same time as showing the lack of social acceptability, as we have done with tobacco, as Mr. Bryant said, and as we have done with drinking and driving. We’ve seen a major change in attitudes toward that. This has to be made very apparent to young people and to society at large if we are to have any success in that area.
In regard to differing amounts of drug for youth and for adults, the Canadian Bar Association has not taken a formal position on that. However, in my view it is very likely open to Parliament to treat that as differing levels because there are differences in a youth system and an adult justice system. You have different goals with youths and adults. That’s something we have to deal with as well.
Senator Gold: You wouldn’t necessarily subscribe to the recommendation of the Barreau du Québec.
Mr. Calarco: We have not taken a position on that, but I am just saying that as a legal and constitutional measure it is likely open if Parliament keeps that difference in. Youths are treated very differently. There are a variety of sanctions or benefits in the youth system that are not open to adults.
Senator Jaffer: Before I ask my question, one of the things with drinking and driving was the huge educational component. One of our concerns here, from my understanding, is that education won’t even start until a year after the bill comes into place. Drinking and driving reduction has succeeded because of the huge educational part, but my question is not on that.
In Canadian Bar brief you talked about the ticketing scheme and how it minimized the stigma for possessing small amounts of cannabis because persons could not be identified. Should this be extended to young people?
I will ask another question of you, Mr. Lévesque, because you have covered this. Something bothers me about this bill. I know that under the Young Offenders Act youths have other ways of dealing with it. I feel it is so unfair that some smart people will bring a Charter challenge on why young people are treated differently. There is not a stigma if you are in doubt or there is not ticketing for a young person.
I could go on and on, but I would like all of you to comment on that. Maybe I can start with you, Mr. Lévesque.
Mr. Lévesque: I am glad you asked the question, Senator Jaffer. Clause 5 of the bill that says the Youth Criminal Justice Act is applicable to the contravention of this act, but it is not crystal clear what it entails.
Does it mean that ticketing would apply or not? Does it mean that for above five and below 30 grams the extrajudicial measures would apply? We think the best approach is to say up to 30. It’s still bad. It’s bad for your health. It’s not illegal, but if you have to break the law we don’t want to stigmatize young offenders.
Having said that, I understand that we are far into the study of the bill. Maybe the limit of between five and 30 grams is already set in stone, so to speak. A fallback position for the bar would be to say, if the clause cannot be removed, that maybe in clause-by-clause study you could consider having a clause 5.1 that would say, according to the text I have here, “for greater certainty, nothing in this act is to be construed as limiting the provision of the Youth Criminal Justice Act, including the use of warnings, cautions, referral or extrajudicial measures.”
It says to all stakeholders, first, that the police community officer would have that in mind, so before stepping over to criminalize and to stigmatize, the principles, the scope and objective of the YCJA would be applied.
Mr. Calarco: I think there has to be some recognition that when a youth is being dealt with under the YCJA, there are different goals involved. If the ticketing provisions were applicable to youths, that may allow a youth to hide a great deal from his or her family. One of the things that the YCJA provides is that when a youth is charged, there is a notice to the parent: Why did this young person apparently get into trouble? Let’s have the family involved in this. That may be a very valid reason why ticketing would not be appropriate to apply. That’s one consideration.
As far as the Charter challenge is concerned, I am not at all convinced that treating youths differently would be open to a Charter challenge in this situation. The Supreme Court has already upheld different treatment for youth, and even different alternative measures or programs across the country. I don’t think, off the top of my head, that a Charter challenge is likely to succeed in that area.
Senator Batters: Dr. Igartua, perhaps you could please provide us with copies of the poster and the PowerPoint presentation that you referenced earlier in your presentation. It would be helpful if we could have that for our committee.
Dr. Igartua: Absolutely.
Senator Batters: You’re a psychiatrist, correct?
Dr. Igartua: Correct.
Senator Batters: Your association is a group of psychiatrists in Quebec.
Dr. Igartua: It actually represents 1,150 psychiatrists. Probably about 97 per cent of the psychiatrists practising in Quebec are part of our association.
Senator Batters: I thank you for the work you do every day to help people with mental health challenges in your province. I want to give you that additional time that you requested in your brief opening statement to tell us more about the effects of marijuana on brain development, on psychosis and on dependence and, if you have a chance, to you tell us a bit more about why you believe 21 years age is a preferable minimum age to 18.
Dr. Igartua: There have been different studies looking at how cannabis affects the brain, both from a functional perspective and from a structural perspective. Some of these studies have not been replicated, so the science is still early in terms of the structural stuff.
What we have seen in certain studies is a reduction in the volume of the different regions of the brain and changes in the white matter. There’s white matter and there’s grey matter. The white matter is the part of the brain that’s myelinated. That’s why it’s white. There are changes in the way it is structured.
The reason it’s thought to do that is because during adolescence and young adulthood the brain is maturing. Part of the maturation is what we call pruning. When you’re a very young child, you have lots and lots and lots of neuronal connections. As you develop and you experience life, the neuronal connections that are not of use to you get pruned. Like a tree that has too many branches, we prune it off.
This is why it’s very easy to learn multiple languages when you’re young. As you get older, if you never used those language skills, you lose them. This is why you can you learn a second language but you’ll always have an accent because the plasticity of the brain is such that you’ve lost some of those connections.
Pruning is also a way of making the brain more efficient. What happens, as you go through adolescence, is that your frontal lobes become more efficient. The frontal lobe is the area where you have what is called executive functioning. That’s the ability to plan, to foresee consequences to your actions and to control your own impulsivity, which is also why sometimes those of us who are parents of teenagers think teenagers are crazy. It’s because their frontal lobes are not quite yet developed. They make impulsive decision. They can’t plan for their assignment due in three weeks that they need to do a bit at a time because this part of the brain hasn’t matured completely yet.
Senator Batters: Perhaps I could get you to move on to psychosis and dependence very quickly, because I will probably get cut off by the chair.
Dr. Igartua: What I wanted to say about that brain development is the endocannabinoid system is involved in that pruning. When you flood it with cannabis, then you alter the way that it prunes. That’s how you are changing the structure.
In terms of the function of the brain, we know that the memory and concentration are less. How it creates psychosis, we don’t yet know. We don’t know in whom it will create psychosis. We do know that, on average, people who smoked once in their lifetime have a 40 per cent increased risk of developing psychosis. People who smoke regularly and often in high quantities have a 390 per cent risk or a four times risk of developing psychosis.
The numbers are there. Because the THC levels are higher, we’re seeing more and more psychosis in our emergency rooms across the province.
In terms of dependence, because of the way the cannabis is affecting the structure and because teenagers are impulsive and they haven’t developed all of the same skills of emotional regulation that we do as adults, if you start using when you’re a teenager and you don’t develop those skills you’re more likely to develop a dependence and to use cannabis as a means of emotional regulation, rather than developing other skills to deal with your sadness, your happiness, your anger, your disappointment or whatever.
The Chair: Thank you very much for your explanation, Dr. Igartua.
[Translation]
Senator McIntyre: Dr. Igartua, the members of your association certainly have some serious concerns about the legalization of cannabis. Your brief contains 10 recommendations, and I must admit that I agree with them completely.
That said, I think I know what I’m talking about. For 25 years, I chaired the work of the New Brunswick Review Board, a board which as you know reviews the disposition of individuals who are deemed to be fit or unfit for trial, and are not criminally responsible because of a mental disorder. I must admit that the vast majority of cases we studied involved the use of drugs, and of marijuana in particular.
In your brief, you mentioned the experience of the states of Colorado and Washington. I understand that in those states legalization seems to have led to the normalization of the use of cannabis, and probably to a greater availability of it, especially to minors. On the same topic, your report’s ninth recommendation invites the parties concerned to launch awareness campaigns so that this whole matter is not trivialized.
Could you tell us your thoughts on this please?
Dr. Igartua: In fact, it is comparable to alcohol; even if alcohol is illegal for those under the age of 18, we mustn’t kid ourselves, adolescents do consume it. Adolescents may consume less now than in the past, but that is not due to the fact that they can’t get it. They don’t go to the black market to obtain alcohol, they make a deal with a person of more than 18 who purchases it at the SAQ for them. We can expect a similar situation to develop with cannabis, whatever age threshold we set, whether it’s 18, 19 or 21. Young people will probably obtain it on the legal market, and illegally as well.
We want young people to be aware of the risks they are taking and to know how to reduce them. I would prefer that teenagers smoke in their basements, rather than in the street without any monitoring. We would prefer that they smoke once a month rather than once a day. We would prefer that they smoke cannabis with less THC rather than more THC. Those recommendations are aimed that reducing the risks of consumption.
We also want people to understand that by smoking cannabis, they are, to some extent, playing Russian roulette. Their consumption may provoke psychosis; there’s no way of knowing. At this time, we feel that about 120 genes are involved. We’re trying to understand to interaction among those genes to see who is at risk of psychosis and who is not. Science has not reached the point where it can determine that consumption of cannabis is dangerous for one person but not for another. Every young person who smokes a joint is playing Russian roulette, and it’s important that they know this. If there is psychosis in the family, the risk is higher.
You were talking about the review board earlier. That shows very clearly that the prognosis for psychosis is worse for people who continue to smoke than for those who stop. That is probably why you are biased, having seen so many cases where consumption caused problems. The prognosis is better for those who develop psychosis but do not consume this substance. Normally, those people are not found to be criminally responsible.
Senator Carignan: All of this is fascinating. Mr. Thibaudeau, the last time we met, you were one of the biggest class action lawsuit experts in Quebec, perhaps even in Canada, I would say. And so I will raise the topic of potential class action suits. You seem to see a risk of class action suits, somewhat like those we have seen in the tobacco industry, if information on prevention is not sufficiently detailed, given the obligation to inform the public. As we have seen, certain risks remain unknown, and it is difficult to measure their impact.
Mr. Thibaudeau: You are taking the words right out of my mouth. As we saw, that is what happened with class action lawsuits involving tobacco. I’m happy to hear my legal colleagues and a psychiatrist say that we shouldn’t wait for people to drown in the sea, and that we have to start upstream where the water is neither deep nor salty, and inform people and raise their awareness.
I am only a lawyer. I can’t speak to the dangers because I don’t know what they are. Some studies have been done and one thing is certain, and that is that there are risks. We criticize governments and tobacco companies. We have to be preventive and inform people in order to avoid that two, five or 10 years from now, lawsuits are launched once people discover the risks and the dangers. People may perhaps want to blame the producers. Some producers and distributors should carry out studies on strengths and weaknesses. There will be an industry around the commercialization of cannabis, just like for alcohol. The same thing is true about gambling. The government was sued because there were slot machines in bars.
You are entirely right and everything we have heard here confirms it.
Senator Carignan: My second question is addressed to the members of the Barreau. I am a member of the Barreau du Québec. A lot of attention is given to what you write and to the positions you take. This is important for us.
On March 2, 2018, the Barreau produced a brief on Bill C-46 which raises the problem of per se limits. I will quote from it:
Taken together, Bill C-46 and the Blood Drug Concentration Regulations go beyond what is necessary to achieve the legitimate objectives of prevention, health and road safety. The bill has been put forward even though scientists admit there is very little conclusive research on the effect of various drugs on motor vehicle operations. Moreover, the proposed regulations criminalize blood drug concentrations even though the scientific evidence that they are impairing is debatable at the very least. In our opinion, it would be advisable to wait for more conclusive well-established scientific data. Otherwise, the proposed legislation and regulations on driving with levels of prohibited drugs will undoubtedly be widely challenged in the courts.
You seem to be saying that it is not a good idea to set a limit.
On April 18, 2018, you recommended this:
Establishing a per se limit is important to facilitate enforcing the act and demonstrate drug-impaired faculties.
I understand that that is the Barreau speaking, and perhaps there were two different committees that studied the matter. However, we are hearing the testimony of the Barreau and I see a contradiction. Can you enlighten the members of the committee on this point?
Mr. Le Grand Alary: The brief on Bill C-46 also includes comments on the draft regulations. It is about cases where per se limits are put in place to target a mix of alcohol and various drugs.
The brief we are submitting today refers to THC concentration, where data are more reliable. You have to remember that the per se limits facilitate prosecuting and convicting persons who committed offences. However, Bill C-46 and the Criminal Code continue to include an impaired driving offence based on the assessment of the person’s faculties. While we wait for more reliable data concerning the mix of various substances besides alcohol, we use that offence and measure the level of impairment of the driver’s faculties.
Senator Pratte: My question is for the Barreau du Québec. It concerns the interaction between the provincial and federal laws. I want to take this opportunity to say that contrary to what was implied earlier, it will be illegal under provincial laws for a minor from 12 to 17 years of age to possess any quantity of marijuana anywhere in Canada.
In its brief or in its presentation, the Barreau du Québec did not raise an issue that is of particular importance to Quebec and Manitoba, and that is the home cultivation of cannabis. There will be two different systems, and it will be a bit confusing for Quebeckers. A provincial act will indicate that it is forbidden to grow cannabis plants at home, and the federal act will state that it is permitted to have up to four plants.
You may not wish to express a position on this issue. In your opinion, will the provincial act be valid, or will it be the federal one? Will one prevail over the other?
Mr. Le Grand Alary: The rule of federal preponderance in cases of conflictual laws is a principle that was recognized by the Supreme Court and is contained in the Constitution. Certain conflicts were much discussed before the courts and decisions and were handed down on these matters.
We don’t think it is the role of the Barreau du Québec to provide a legal opinion on such litigious questions. However, we can say that that issue could indeed be debated in court. That is why we wish to draw the attention of the legislator, both federal and provincial, to the potential conflicts that could arise with regard to certain provisions, but we don’t want to take a position on either side. This is indeed a legitimate legal issue that could be debated before the courts.
Mr. Lévesque: The Barreau warned the provincial government that there are potential conflicts. The National Assembly also asked for an opinion. Honestly, I must say that we are not in the judges’ shoes. Judges have a tendency to understand both pieces of legislation in order to avoid conflict as much as possible. But faced with an apparent conflict such as this one, we don’t really know what decision the judges will make, and everything depends on the facts or the circumstances. It may even depend on the judge.
Senator Pratte: My second question is for Dr. Igartua. You spoke about setting limits for THC. In the draft regulations the government presented, there are THC limits for certain products but not for dried cannabis, which apparently has a natural limit of approximately 30 per cent.
You recommend 15 per cent, and half of 15 per cent for consumers of less than 21 years of age, so around 8 per cent. What are those recommendations based on? Does scientific research indicate that those levels are less dangerous?
Dr. Igartua: This is a bit difficult, because there are no specific data indicating that a certain level of THC is not dangerous. The principle is that the less THC there is, the less dangerous be substance. We analyzed the figures from Colorado and the Netherlands as they wanted to establish a limit there. We based our recommendation on those figures, on the one hand. On the other hand, the vast majority of the cannabis on the illegal market currently has a THC level of about 12 to 14 per cent. And so, by setting the limit at 15 per cent, we will co-opt the illegal market and integrate it into the legal market. That is why we chose that limit. But are there data indicating that 15 per cent is less dangerous than 16 per cent? No, because it’s a matter of gradation.
You said earlier that dried cannabis has a natural limit. I think we have to be very careful, because the THC content of cannabis in 1994 vas 4 per cent. By 2012, it was around 13 per cent, and in places where growers can perfect their art, it is possible to raise the THC level to 28, 30, and even 32 per cent. We have to be careful, because the more you can work the plant, the higher the levels you can produce. You have only to think about the resin, which is commonly known as “shatter,” which contains a THC level of 80 per cent. So, if we don’t set guidelines right now, we will see very high levels of THC in the products that will circulate on the market.
[English]
Senator Boniface: Thank you all very much. It’s very interesting.
I’d like to direct my question to CBA, if I may. This is around the homegrowns. I note in your brief that you indicate there’s no need to impose the four-plant limit. Individuals should be able to produce cannabis as they can with alcohol and tobacco. I am interested in that perspective.
In the same brief, you say that special provisions need to be made for apartments, residences and rooming houses where several people live. Are they allowed to cultivate more than four for multiple people in the same residence?
I am interested in your perspective on that, given concerns around homegrowns, what they do from a landlord perspective and a number of other concerns from somebody who may be a neighbour. Can you help me out in terms of how you arrive at limitless?
Mr. Calarco: The situation is not a question of being limitless in the sense of having a traditional, illegal grow op where a premise is bought or rented and every inch of that place is used for growing marijuana.
The situation we’re more concerned with is: If you have a number of people who are living communally, you are still limited to four plants. Some recognition has to be given that there are reasons to have, perhaps, more than four plants there.
We’re not suggesting that there should be grow ops everywhere, by any means. You mentioned landlord concerns. These are very legitimate concerns. They are very legitimate concerns in real estate transactions.
A colleague of mine who is a real estate lawyer indicated that there are now clauses in sale agreements where there is a warranty that the premises has never been used as a marijuana grow op.
These are all questions that have to be resolved. It requires that there be a lot more interaction between federal and provincial authorities, as the landlord and tenant area is provincial jurisdiction. There’s simply no clear answer. I wish I could tell you there was one, but this results in a great deal of difficulty in all these areas.
Let’s say you have 15 people living together communally. Should they be limited to four plants as one person would be? Some recognition has to be given to a different situation.
Senator Sinclair: Dr. Igartua, do you have any thoughts with regard to the issue of Indigenous youth, particularly in remote communities, and the potential impact upon their mental health if there’s greater availability of cannabis products?
Do you or your association have an opinion with regard to the level of services that they now have and the level of services they may need as a result of increased availability?
Dr. Igartua: I can’t speak for all of Canada because I don’t know about the rest of the provinces; but I can say that the Indigenous people in Quebec do not have the level of services currently that they need for their mental health.
We have been having some discussions with the provincial government to try to come up with programs to service people, particularly out on reserves where they are not getting adequate service as it is.
As you know, a lot of health determinants in the Aboriginal population create excess stress. In terms of minority stress models, they have excess addictions rates, depression rates and suicide rates.
Already there’s not enough service. If, in addition, the use of cannabis explodes even further, of course, they will be lacking the services they require.
The Chair: That completes the first round. On the second round, I have six senators.
First, Dr. Igartua, I know you were scheduled to 6:15. We are past 6:30. Are you still available for another 10 minutes?
Dr. Igartua: I can stay for another 10 minutes.
[Translation]
Senator Dupuis: I’d like to go back to Mr. Bryant’s presentation. Something struck me in your statement, which was the slightly provocative character of the introduction, according to which we are legalizing an industry. You say that we are legalizing an industry but recriminalizing the use of cannabis.
We are discussing the consumption of a product which is still illegal today, but we know that it has led to the development of production, consumption and processing for at least 40 years. We must not forget that we legalized the use of cannabis for medical purposes. And this undermines the statements that it is very dangerous. Also, there are others who claim that this is good because cannabis can really help with certain health problems.
Beyond the issue of legalizing cannabis, how can we ensure that we won’t allow an illicit industry to normalize and operate openly, without solving the problems of the illicit trade that will persist for different reasons?
[English]
Mr. Bryant: The legalization of the industry is of greatest impact with respect to the financing of it. You’ll see the difference between the United States and Canada creating an important contrast.
You have a situation where there are small entrepreneurial, cottage industry distributors with a certain amount of scale and a certain number of limited mergers and acquisitions between the two because it has to be within a particular state.
Canada is the second federal government to legalize it, and the significance of that is around the financing of it. The operations themselves, based on where the industry is at today, would suggest that all of the illegal production that was taking place elsewhere will be swiftly pushed aside by the legal operations. That isn’t to say there wouldn’t be some efforts to try to be entrepreneurial among organized crime nonetheless.
My concern is that the industry or the corporations have plenty of access to legal resources. Right now, basically as a result of the question that was asked and answered about class actions, probably the phones are ringing off the hook with respect to ensuring coverage.
Average Canadians, obviously, don’t have a criminal lawyer on speed dial. While it has been legalized at the industry level and at the corporate level, the concern is that it has been recriminalized for users and the distribution of it.
That’s why the argument is around decriminalization with respect to these matters that might be better dealt with, and I would argue would be better dealt with, by the same kinds of strategies undertaken typically through the departments to health around tobacco denormalization and so on.
[Translation]
Senator Boisvenu: My question is addressed to Dr. Igartua. You said earlier that the way in which the law is drafted means that the message we are sending to young people could lead to the normalization of cannabis consumption.
I understand that certain provinces will forbid young people of less than 18 to possess cannabis, but under the federal act they will be allowed to have a certain quantity in their possession. If the bill gave them the right to have a certain quantity as of 21 only, do you think that youth would get the message that consuming marijuana is dangerous?
[The videoconference was interrupted.]
[English]
Senator Gold: Although my question was asked by Senator Pratte, I would like to come back to you, Mr. Bryant, for a second.
In the briefs of the Canadian Bar Association and the Barreau du Québec there are some very specific, helpful recommendations. Thank you for the care with which you presented your memoir. I am having a hard time grasping what you would recommend we do.
I understand your point about it taking a non-criminal law approach to this, but we have a bill in front of us. I am not asking you to draft them for us, but are there specific amendments you would recommend or support in the briefs we have had that would improve the law, at least from your point of view?
Mr. Bryant: I take your point. The challenge is whether one comes in and enables a process that, the argument is, ought to have been commenced and determined through a different ministry.
Nevertheless, we adopt and support the recommendations made by both the CBA and the Barreau du Québec. I also thank Mr. Calarco for his assistance. All my errors are my own, believe me, but he was of great assistance to me leading up to this bill. We would echo the recommendations they have made.
The other specific matters that don’t fall within it would be with respect to the entire section on search powers and the entire section on forfeiture of property because there already are forfeiture of property powers and search powers under the Criminal Code. In the event the police believe that criminal activity is taking place, they have those powers to turn to.
These particular search powers are problematic in part because they open up searches to property in circumstances that are just for criminal matters. It is just via criminal matters that you would have the police coming in without a warrant to do a search of a property. By putting that in the particular bill we’re obviously exposing the personal and property liberties of Canadians to the experience of having a search being conducted on them without a warrant.
Senator Batters: My question was initially for Dr. Igartua, but she had to leave.
Mr. Lévesque, thank you very much. You raised an important point when you said that the Youth Criminal Justice Act applies but you are not clear how it applies.
Every day, we find new things in the particular bill that exposes more flaws. I note that you brought forward a potential amendment that would help assist with that particular flaw. I am wondering if you could provide it to the committee so that we would have that going forward.
Mr. Lévesque: Yes.
Senator Pate: I have a bit of a mult-pronged question for the Canadian Bar Association, but others can comment, given the time.
Your second recommendation was to suggest, in the interests of avoiding incarceration, that federal prosecutors be encouraged to seek non-custodial sentences in cases where there are mandatory minimums. You’re basically saying to encourage them to challenge the mandatory minimum.
Was there a reason you worded it in that particular way instead of saying not to have the mandatory minimum? How often have you seen federal prosecutors use their discretion in that manner, particularly when they’re looking for treatment orders, for instance? How available and accessible are those treatment orders?
Mr. Calarco: In recommendation 2 we’re looking to move the current prosecution regime to something that recognizes the new prosecution regime.
The CBA has long opposed mandatory minimum sentences. We have found that mandatory minimum sentences simply don’t work. They are often way out of proportion.
In a very practical way, there are more and more challenges to mandatory minimum sentences and a huge amount of court time is wasted. Whereas, if the prosecution was not seeking a mandatory minimum sentence, there would be far less delay in the courts. We’re looking at very practical means of dealing with this.
We have seen cases of a prosecutor saying, “I would really like to do something, but I’ve been told I have to seek the mandatory minimum sentence, so I can’t exercise my discretion.” That can be a problem in different areas of the country.
Prosecutor A may say, “Let’s accommodate,” and prosecutor B may have a more rigid mentality, for lack of a better term, and say, “No, everyone gets mandatory minimums.” That will cause a lot of delay and problems not only for the courts but also for the resources used by the Crown and cash-strapped legal aid plans that may fund a defence on this.
Senator McIntyre: My question follows up on a question raised earlier regarding ticketable offences, which brings to the surface the issue of judicial record.
As I understand, the words “judicial record” are not defined in the bill. Therefore, we have no knowledge if a person convicted of ticketable offences or pleads guilty to one will end up with a criminal record. Is that correct?
Mr. Calarco: Looking at the definition section, it does not say what a judicial record is. We have a situation where the idea appears to be keeping this far out of the criminal justice system so that you will not have a recognized criminal record, but we don’t know if these will be entered into the Canadian police information system.
As we all know, once you’re in a computer database, you can be in there forever and different police forces may employ different tactics.
The Chair: Senator Carignan, you have 10 seconds.
[Translation]
Senator Carignan: My question is for the Barreau du Québec. You discussed the need to create a balance between the legal use of cannabis and the obligation for an employer to provide a safe workplace. This last element is in the Criminal Code. Could you explain what you mean? We have not heard many witnesses speak about that.
Mr. Lévesque: I am not a labour law expert, but generally an employer will always be able to regulate that access. It will be important, as we said to the National Assembly, that we be able to confer certain powers. There are professions — for instance for police officers, firefighters and paramedics — for whom that aspect will be important. We understand that the legislator does not want to authorize the use of marijuana in those professions, given the safety considerations. Those things are to be expected. When it comes to work, it is certain that the federal legislator will not necessarily interfere in areas of provincial jurisdiction, but we have to ensure that the law will be consistent, and this speaks to the importance of cooperating with the provinces.
The Chair: Thank you, Mr. Lévesque, Mr. Thibaudeau, and Mr. Bryant.
[English]
Thank you for your inspiration and cooperation, Mr. Lévesque, Mr. Thibaudeau, Mr. Bryant, Mr. Le Grand Alary, Mr. Calarco and Ms. Schellenberg.
You may stay in the room but I have to ask you to leave the table so that we can proceed with our next group of witnesses. They have been very patient.
[Translation]
I want to introduce our guests without further ado, as they have been very patient, and I appreciate their co-operation.
From the Fédération québécoise des municipalités, it is our pleasure to welcome Mr. Yvon Soucy, Warden, Kamouraska RCM, and Mr. Patrick Émond, Director, Research and Policy. I think that in the course of discharging your responsibilities, you have gotten to know our procedure quite well. I yield the floor to you for your statements.
Yvon Soucy, Warden, Kamouraska RCM, Fédération québécoise des municipalités: Honourable senators, as Vice-President of the Fédération québécoise des municipalités, I would like to thank the Standing Senate Committee on Legal and Constitutional Affairs for having invited us to comment on Bill C-45.
The Fédération québécoise des municipalités, the FQM, was founded in 1944. We have close to 1,000 local municipalities and regional county municipalities as members, which means 7,000 elected representatives. We constantly defend the autonomy of municipal governments and work to further the development of the regions. The FQM is the spokesgroup for rural municipalities and municipalities of less than 15,000 residents.
We want to say that Quebec’s municipal elected representatives have a particular interest in Bill C-45. And that is in fact why the FQM took part in federal government consultations on the cannabis products excise tax last September. In the comments we drafted, the FQM recommended that 33 per cent of the income from the sale of cannabis be reserved for municipalities. Consequently, the federal-provincial agreement on income-sharing from the tax revenue that allocated 75 per cent of the income to the provinces was seen favourably by the FQM. That is an important aspect that was clarified.
However, many aspects of Bill C-45 need to be clarified. That is why the FQM, like Quebec, would like to see the implementation of the act delayed by a few months. The legalization of cannabis is a complex matter, and several questions do not seem to have been answered, in our opinion. Today we will take advantage of our time to share some comments and some of our concerns.
With regard to Part 1 of the bill, the FQM has a few comments to express on prohibitions and limitations. Regarding the home cultivation of cannabis plants, Bill C-45 proposes to limit this to four plants. However, the Quebec bill will completely prohibit growing cannabis plants at home. The FQM backs Quebec’s approach on this matter. Indeed, it would seem difficult to control the number of cannabis plants a citizen will have in his home in rural areas. The municipalities we represent have neither the resources nor the staff to enforce that provision. We would prefer that cannabis be grown in secure, well-monitored locations.
However, the FQM wonders about the words of the Minister of Justice and Attorney General of Canada, Ms. Wilson-Raybould, who mentioned that the government did not want actions to be taken in other jurisdictions “that would seek to frustrate the purposes of the act.” You no doubt know that several lawyers raised the possibility of a successful legal challenge of that prohibition. Consequently, in order to avoid any ambiguity and dispel doubt, the Fédération québécoise des municipalités believes that Bill C-45 should explicitly state that provinces have the right to forbid the home cultivation of cannabis plants.
With regard to where cannabis will be grown and produced, we mentioned that we would like this to be done in secure, well-monitored locations. Currently, about six production sites have been authorized in Quebec. Just like other crops, the production of cannabis will generate significant economic spinoffs. From this perspective the FQM is favourable to the development of the supervised production industry. However, it is important to ensure that those spinoffs will not be reserved only for urban centres. Up till now, that is what we have seen in the choice of the six sites in Quebec. We must also encourage projects like the one in Weedon in the Eastern Townships, a municipality of less than 3,000 residents. The cannabis production project for that location would create 400 jobs. Imagine the economic impact this will have on that municipality and that region!
However, given the current rules of the game, and the complexity and length of the processes to obtain the permits and licences from the federal government, many projects like the one in Weedon will probably not come to fruition. Promoters from rural areas who have smaller means are often at a disadvantage as compared to those of large urban centres.
To conclude, I’d like to talk about the importance of respecting municipal autonomy when it comes to drafting nuisance regulations to protect the general well-being of the population. With regard, more specifically, to the consumption of cannabis in public places, the FQM believes Quebec needs to adopt a legal framework that imposes minimal restrictions, which will then allow municipalities to adopt stricter municipal regulations based on their respective needs. We have to avoid reinventing the wheel, and we must respect municipal autonomy to regulate the consumption of cannabis in public places, as we do currently for tobacco and alcohol.
Municipal elected representatives are fully aware of the importance of Bill C-45 and want to work in partnership with the federal government and the Government of Quebec to ensure harmonious transition and management.
Once again, I want to thank you for having invited the Fédération québécoise des municipalités to speak on such an important topic, and for having entertained our brief comments. I am accompanied today by Mr. Patrick Émond, Director, Research and Policy. It will be our pleasure to answer your questions.
Senator Dupuis: Thank you for being with us, and thank you for your patience. Can you tell us whether there were surveys, discussions or general agreements reached in your federation, among municipalities, on the issue of legalizing or not legalizing cannabis?
The mayor of Smiths Falls, Ontario, which is a small town of 8,700 residents, told us that his municipality is in favour of legalization because it creates an important economic development opportunity which would compensate for the departure of several industries.
Legalization will lead to problems, as you said, for instance regarding the issue of regulating use in public places, but it may also bring certain advantages. Did the FQM discuss this?
Mr. Soucy: Regarding the economic benefits, I already gave the example of Weedon.
As for the discussions we had, they involved how we were going to manage to implement this project in our communities. It was not necessarily the choice of municipalities, that is certain; rather, this is the result of the government’s will to legalize cannabis. As we indicated in our presentation, our concerns centered around the need to have harmony between what Bill C-45 is proposing and what Quebec wishes. Quebec’s wishes are relatively similar to those of the federation, regarding the points I mentioned earlier, that is to say forbidding home growth of cannabis, forbidding consumption among youth of 12 to 17 but without criminalizing it, et cetera.
Senator Dupuis: I saw that the Federation of Canadian Municipalities prepared a type of implementation guide for this act. If I understood correctly, the FQM is also preparing a similar guide.
Mr. Soucy: There are two municipal associations in Quebec. Perhaps it is the other municipal association that is developing a guide.
That said, I am the warden of an RCM, and in the discussions we hold, such as in our public safety committees, we ensure that we harmonize our regulation, because regulation must be applicable. If it is not harmonized in our territories, it’s difficult to apply it.
And that is why we are asking Quebec to adopt a minimal framework, as common sense would dictate. We are asking that, as is the case for tobacco, the consumption of cannabis near schools, playgrounds, day cares, leisure centres, hospitals and so on, be forbidden. We want Quebec to adopt a minimal framework so that the municipalities may then adopt regulations that suit their realities. And I think that this needs to be harmonized also on RCM territories.
Senator Carignan: Welcome to both of you. It’s always a pleasure to hear people who come from the municipal environment.
I am of course quite familiar with the FQM and the FCM. I believe I understood that there is a lack of information and that people are confused about what will be permitted outside, inside, on the street and in parks. I sense that municipal governments want more time so that they can do things right, because nature abhors a vacuum.
The FCM has developed a guide for municipalities that my team and I have started reading. The guide contains errors. For example, it says that each person over the age of 18 living in the same household could grow four cannabis plants. However, it is not four plants per person, but rather four plants per household. That is a good example of misinformation.
Is that something you are seeing in your meetings with mayors and reeves?
Mr. Soucy: Yes, that is what we are seeing. We think that things are moving quickly. We don’t really feel ready to deal with all that, which is actually why we are asking, in the presentation, that the legislation’s passage be delayed by a few months. In addition, Quebec’s reality involves the upcoming provincial election campaign. We know that issues emerge and parties adopt positions. What will be the next government’s position should the leadership in Quebec change? So that is another reason to delay the passing of this bill. We do find that things are moving too quickly, and we don’t really feel ready.
Senator Carignan: I would like to come back to your recommendation to prohibit home cultivation. I assume you have also talked about that in your public security committees and that you have consulted your police services. Did you go on the ground to talk to your experts before you made the recommendation?
Mr. Soucy: I will let my colleague answer that question. We do have standing committees at the FQM.
Patrick Émond, Director, Research and Policy, Fédération québécoise des municipalités: Yes, we have consulted our committees on this matter. We just recently learned what kind of funding municipalities could have under the Quebec budget. So there is the whole issue of figuring out whether we have the resources to ensure regulatory enforcement. As Mr. Soucy was saying, there are 900 municipalities with a population of less than 5,000 in rural Quebec, and their resources are limited. So when it comes to applying the provision on the number of plants allowed in households, in rural communities, in more isolated areas, people have told us that it would be preferable to try to avoid that and to confine production to regulated production sites.
Senator McIntyre: Thank you for your presentation. I have read up on this, and I note that one of the major issues for rural municipalities is that they do not have the required zoning regulations to administer legal cannabis cultivation and facilities. In other words, regulations on the personal cultivation of cannabis should not be the purview of local authorities, since rural municipalities have other concerns, such as vandalism, theft, threats to security and liability for damages. Those are already significant concerns for rural municipalities. Having to deal with cannabis adds another constraint to municipalities’ ability to apply the law.
Mr. Soucy: It does add to the responsibilities given to municipalities. There are resources that should help ensure compliance with legislation and regulations.
I think this confirms our earlier statement that it may be too early for us. We are not really ready to deal with all that.
Mr. Émond: I would add that, for our conference in September, we are planning a specific workshop on the legal framework for cannabis for municipalities, so as to adequately respond to the various issues that would be raised.
Earlier, we talked about a guide being published. We think it is still a bit too early to produce that kind of a guide. There are still too many unclear aspects. There is no point in rushing things.
The Chair: The regulations are not available anyway.
[English]
Senator Batters: Thank you very much for being here today. I come from Saskatchewan, so I hear many of the same concerns you have from your organization.
I am wondering about the concerns you might have about the federal government allowing Canadians to buy marijuana online, over the Internet, under this bill. In a large part of your particular rural municipalities, there may not be a sufficient population to have actual physical stores. However, people will be able to buy it online or over the Internet. I am wondering about your concerns about that.
[Translation]
Mr. Émond: I don’t think we talked about our position on the online purchasing of cannabis in our documents. In any case, that is something else we will have to deal with. The federal bill mentions that it will be possible to purchase online, even if it was prohibited in Quebec. Quebec has opted for a government-based sales model. However, we can live with the current bill when it comes to that. Our organization has not expressed a formal position regarding online sales.
[English]
Senator Batters: In Saskatchewan, our rural municipalities belong to a very large organization called SARM, Saskatchewan Association of Rural Municipalities. I think you were just referencing it.
SARM has a very large convention every year with a large policy discussion component so that they can hear from their members across the province. This winter, marijuana legalization was a really significant topic at the SARM convention.
I think you just alluded to having your convention in September. Last year might have been a little too early to get much input from your members, but I am wondering if you had that opportunity yet or if this coming September is really the first opportunity you’ll have for a large convention about this particular topic in detail.
[Translation]
Mr. Soucy: Yes, absolutely. That is what is planned for the federation’s next conference, which will be held in Montreal this year.
Mr. Émond: We will have a workshop specifically on the legal framework for cannabis, since we will have more detailed information thanks to the federal bill and the Quebec bill. So we will be able to combine the two and also see what will end up on the municipalities’ plates, as municipal regulations will also have to be drafted. We also want to discuss that.
[English]
Senator Batters: In September it could well be in effect already, by the time you have this opportunity.
[Translation]
Mr. Émond: That is why we are asking that the bill’s coming into force be delayed.
Senator Gold: Thank you for joining us, gentlemen. I fully understand the challenges presented by the legislation, and this is not the first time we hear about them. It is complicated, especially for municipalities, since the issues are on the ground.
If I understand correctly, even if the legislation is passed before the summer, another two or three months will be needed for it to come into force, as there is a whole series of actions that must be taken at the federal level. Do you think that, even if it is not completely ready, you will still have time to consult your colleagues, at least to determine what points you have in common in terms of regulation? Can you comment on your association’s consultation process with the province, for example, to ensure that you would have the required powers to provide a proper framework for legalization?
Mr. Soucy: Will there be legal challenges once the bill is enacted? For example, if the Quebec bill still prohibited four plants at home, but that went against the spirit of the federal legislation, there may be legal challenges.
As a municipal association, we have a role to provide our municipalities with guidance. We will guide them as well as we can to ensure that they can assume the responsibilities stemming from the passage of the new legislation. However, all that remains to be defined, and we are currently in a vacuum.
Mr. Émond: About a week ago, the ability to regulate cannabis use in public places was debated extensively in Quebec’s Assemblée nationale. Is it up to the Government of Quebec to regulate everything, or should part of the issue be left to the municipalities to deal with? That question, which is one of many, has been hotly debated. Municipalities are claiming a degree of autonomy in that area. Many aspects of the regulations and responsibility sharing still need to be resolved and fine-tuned.
Senator Gold: But when it comes to tobacco, municipalities currently manage certain aspects appropriately based on how they view their needs, such as citizens’ safety and well-being. So, while waiting for the situation to be resolved at the federal level, I assume the majority of municipalities are starting to implement measures, at least for this transition period.
Mr. Émond: Yes, of course, some of them are taking the lead.
Mr. Soucy: That is why harmonization must be ensured. For example, if cannabis use in public places was allowed — if we may compare this with alcohol or tobacco — it would not really be harmonized with the federal legislation. That is why it must be ensured that it will be applicable and that harmonization will be achieved.
[English]
Senator Boniface: I wanted to come back to your comments in terms of your concern around zoning for production sites and such like. I am wondering if there are any lessons to be learned from the medicinal marijuana operations. I am from rural Ontario, and I know we have places within relatively rural municipalities that provide it for the medicinal purposes.
I am wondering if there are lessons you can learn from that scheme which would help inform you in terms of what you need to do? Again, that’s also available online. I am thinking it is natural to see how that may impact zoning.
[Translation]
Mr. Émond: I think there are lessons we can learn from Ontario in this area. As mentioned earlier, about six Quebec sites have been authorized for cannabis production, primarily in urban communities.
This is a learning process for us, and that is why we are talking to the Federation of Canadian Municipalities to find out what is happening in other Canadian provinces. We try to meet approximately once a month, to monitor the situation and see how everything is unfolding.
Senator Boisvenu: I first want to apologize for my temporary absence. The delay made it difficult for those who sit on two committees. Thank you for your patience, given the late hour.
Senator Dupuis briefly talked about a Canadian guide on marijuana legalization. Did you say that it was a guide you hardly used?
Mr. Émond: We said it was too early to produce a guide on that.
Senator Boisvenu: The Federation of Canadian Municipalities produced one such guide.
Mr. Émond: Yes, it did. The willingness is there, but it may be a bit too early to produce that kind of a guide.
Senator Boisvenu: Municipalities will manage the social aspect of cannabis use. I think people are very worried about that, especially non-smokers. In many cases, the police forces you manage are also worried about how quickly this bill is being brought forward.
Would you support the adoption of an amendment to the bill whereby the passage of the legislation — for example, in June — would require an order in council to be signed, as is the case for a number of pieces of legislation? So a bill is passed, but it contains a requirement for the responsible minister to get the government to sign an order in council for the bill to become law. The legislation could be passed in June, but the order in council could be signed, for example, in January or next spring, when municipalities would be ready to properly manage the situation to reduce the number of victims. Would you be favourable to an amendment to the bill requiring that an order in council be signed for the legislation to come into force?
Mr. Soucy: If I understand correctly, the legislation could be enacted, but an order in council would be required for it to come into force, once the minister ensured that everyone is ready. We would support that.
Senator Dupuis: I am listening to you and finding all this encouraging, as it seems to me that the message I am hearing — correct me if I am wrong, and I will continue with my question right after — is that you are used to managing the municipal side of things. You have members who are used to it. To that is added a new aspect that increases the number of issues to deal with and that is just as complex. You seem to be saying that, as long as there are sufficiently clear frameworks and standards, you could build on that as a municipality. You specified that even RCMs will ensure that their member municipalities will coordinate municipal submissions.
Do you not have experience as a municipality? I am using the example of Quebec because I am more familiar with it than I am with rural Ontario. Over the past 40 years, we have been reading in the newspapers fairly regularly that an illegal industry may exist, but it is a production industry. I am wondering whether you have learned certain things in that area. For example, have you been called upon to put a stop to illegal production? In order words, you seem like people with experience in more or less difficult situations — some less than others. But have municipalities, including the ones in rural settings, had to deal with those issues for a number of decades?
Mr. Soucy: It is currently prohibited and even illegal. Our police forces ensure that the legislation is enforced and proceed to the necessary seizures. As for us, when there was cultivation on our territories, or we were informed of them, we would be worried and were rather happy when police forces managed to eliminate those situations.
So, in that sense, I can tell you that the legislation will at least help provide a framework for cultivation and avoid, we can hope, the illicit economy stemming from it and everything that creates in terms of negative effects for society. The legislation will definitely have that kind of a positive effect. That’s the answer I can give to your question.
Senator Carignan: As far as I understand what you are saying, you are not adopting a position for or against, but you are asking to be provided with an effective framework and the means to apply the regulations. In particular, you are raising the issue in terms of home cultivation that, according to your police officers, will not be applicable.
Mr. Soucy: It is clear that we won’t be able to apply it. There are 900 municipalities with a population of less than 5,000, and the majority of our member municipalities have a population of less than 2,000. The capacity to apply that measure is lacking right now.
Senator Carignan: Have there also been environmental concerns related to allowing cultivation? I am thinking of different types of cultivation, like in Colorado, where there are issues in terms of forcible entry.
You talked about isolated areas. I come from an isolated area of one of your member municipalities, Champlain, that I will not name. Some of my brothers are farmers who have had trouble because they found illegal grow operations in their fields. When they call Sûreté du Québec or the police, they do not arrive in 10 minutes because it is much too far.
Have concerns been expressed over the risk of forcible entry owing to home growing? People who grow cannabis at home can have their plants stolen. Are there also environmental aspects meaning that, for example, as a municipality, you have to manage waste from those products? Have such concerns been expressed by your members?
Mr. Émond: The issue of environmental aspects has been raised by some municipalities when it comes to recycling organic matter. If cannabis ended up in green waste used for compost, that would be a problem. The problem is purely practical, but entirely real. Who could confirm that the grass does not contain any cannabis? We will have vegetables with a lot of protein.
Senator Carignan: You are making a good point. I have interviewed people who grow cannabis illegally. It’s a plant that grows fairly quickly, depending on whether it is male or female. It is currently illegal. If people see well-fertilized plants, they call Sûreté du Québec. As part of Operation Cisaille, the SQ will remove the plant and leave a yellow piece of tape to indicate that Sûreté du Québec took the plant and it was not stolen by the farmer. If people were authorized to grow cannabis plants outside, at some point, like all other plants, they could spread through fields and forests. There are environmental issues related to a plant like cannabis.
Mr. Émond: I don’t know too much about the plants’ potential for spreading compared with others.
Senator Carignan: You have not gotten that far in your research?
Mr. Soucy: Given those particularities, I would be surprised if many were left. However, if there was an invasion — unfortunately, there are no such particularities with common reeds. That is a different issue and a whole other debate.
The Chair: I remind you that we must adjourn the meeting at 7:30 p.m. We have about seven minutes left.
Senator McIntyre: Rural municipalities clearly have a number of concerns. One of their main concerns is retail sale. Limitations must be established in terms of the location of retail distribution centres, including the appropriate distance from schools, community centres, public parks, and so on. Here is my question: are there any frictions among municipalities when it comes to the retail sale of cannabis, either in municipalities or with regard to other municipalities?
Mr. Soucy: The plan in Quebec is for this to be state-run. In principle, a corporation will be established to control the sale of cannabis. I don’t think there is really any debate on that right now.
Senator McIntyre: Are all municipalities ready to engage in retail sales? And if some refused —
Mr. Soucy: If they don’t want any in their community? I cannot say. To my knowledge, I did not participate in debates on that issue.
[English]
Senator Batters: In Saskatchewan and throughout a lot of Western Canada, rural crime is becoming a major problem. I am wondering if your members are concerned that marijuana legalization could make that type of crime even worse in rural areas that are remote, have less access and where it takes longer for police to get to your areas.
[Translation]
Mr. Soucy: That is the whole debate. We do not focus on those issues in the presentation. There is no denying that there is use, there is an illicit industry and there is crime related to it. If a product was legalized and was properly regulated, would impacts be reduced? We hope so. That is what I can tell you. Let’s hope that negative aspects will be mitigated.
[English]
Senator Batters: That’s not what Colorado is finding. They’re now the number one black market in the United States.
[Translation]
Senator Boisvenu: The Government of Quebec is planning to set up 14 points of sale over the next two years. They will likely not be located in small communities. Without legal points of sale in your municipalities, are you not worried that organized crime will maintain its presence? We know that organized crime involved in the sale of cannabis in small municipalities creates a major problem for young people living with gangs.
Mr. Soucy: Of course, what will happen with the implementation of all this and what will the results be? There may be cause for concern if the regions were “underserved.”
Senator Boisvenu: You are mainly served by Sûreté du Québec?
Mr. Soucy: Yes.
Senator Boisvenu: Sûreté du Québec told us that, when plant seizures occur, it will have to keep the plants in warehouses as evidence in case of trial. Are municipalities ready to have “organic farms” for those plants? That will lead to additional costs for municipalities.
Mr. Émond: Those are actually all important issues to take into account. This raises the matter of delaying by a few months the legislation’s coming into force, as these are the types of matters municipal representatives have in mind. They will have to figure out how they can take charge and acquire the necessary resources.
Senator Dupuis: I would like to set the records straight on what we have received in terms of information from Sûreté du Québec representatives. They told us that having to store plants was very inconvenient for them, but they did not say the responsibility would be passed on to municipalities, which would be saddled with the problem. Thank you.
Senator Boisvenu: I did not say that either.
The Chair: I think the minutes of proceedings will clear up Senator Boisvenu’s comments and our guests’ absolutely correct answer.
Senator Gold: There is an expression in English according to which apples should be compared to apples. We are aware of the challenges facing small municipalities that lack resources. Tell me if I am right is saying that here is now a significant issue with cultivation, not only at home, but on land across Quebec. We are talking about an industry whose stakeholders, such as Hells Angels, are going village to village with plastic bags. The illicit market is a major problem today, and police forces cannot put a stop to it because plants are spread out all over and not four per home. Am I right to say that this problem is difficult to manage?
Mr. Soucy: Regarding police forces on our territories, we are talking about constant vigilance. For example, I am under the impression that they are not quite able to control the situation in our area. So there is constant vigilance.
Senator Gold: The reason I’m asking the question is to determine whether marijuana legalization will change things or create more problems. I understand that this is a matter of timelines, zoning regulations, and so on. We have to wonder whether the illicit market that has been around for a long time will continue to exist and, if so, for how long. There is no doubt that municipalities and police forces are facing a challenge today that will not change and will not be exacerbated by legalization. Can it be said that the situation will not change a great deal over the short term? Am I right?
Mr. Soucy: We can hope that the current illicit industry will disappear.
Senator Gold: So legalization will improve the situation.
Mr. Soucy: Let’s hope the legislation will have that outcome.
The Chair: In your presentation — and this came up during our discussion — you talked about a few months’ delay. Are you talking about a delay of three, four, six months or waiting until the end of the year? Based on your experience, what would be a reasonable delay for you?
Mr. Soucy: I talked about the electoral timeline in Quebec that should be taken into account, since the election is approaching and will be held on October 1. As senator Boisvenu said, it would be preferable to aim for December or January.
The Chair: So the end of the year.
Mr. Soucy: The end of the year.
The Chair: Okay.
[English]
Thank you, honourable senators, for your attendance.
[Translation]
Thank you for your cooperation, Mr. Soucy and Mr. Émond. We apologize for the delay in your appearance.
(The committee adjourned.)