Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 21 - Evidence - February 9, 2017
OTTAWA, Thursday, February 9, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-224, An Act to amend the Controlled Drugs and Substances Act (assistance — drug overdose), met this day at 10:29 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning. Welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today, we begin our consideration of Bill C-224, An Act to amend the Controlled Drugs and Substances Act (assistance — drug overdose).
We have with us, during our first hour, Ron McKinnon, Member of Parliament for Coquitlam—Port Coquitlam, and he is the sponsor of the bill; Todd Doherty, Member of Parliament for Cariboo—Prince George; Christine Padaric; and from the Waterloo Region Crime Prevention Council, Michael Parkinson, who is the Community Engagement Coordinator with that organization. Thank you all for being here today.
Mr. McKinnon, I gather you will lead off with opening statements, sir. The floor is yours.
Ron McKinnon, Member of Parliament for Coquitlam—Port Coquitlam, sponsor of the bill: Thank you, senators, for inviting me to discuss Bill C-224. I appreciate that your committee is dealing with this bill quickly; that is important because this bill will save lives.
I listened to second reading speeches by Senators Campbell and White, and both spoke to the urgent need to pass Bill C-224 into law. I'm fortunate that Senator Campbell is a sponsor of this bill, for he is a long-time advocate for harm-reduction measures.
I thank you all for your recent review of the opioid crisis — that will help you make an informed decision on this bill — for Canada is indeed suffering an opioid overdose epidemic. Harm reduction is one piece of the equation on how we deal with this problem.
Canada is behind the times. Thirty-seven U.S. states, plus the District of Columbia, have passed similar legislation to Bill C-224. The Good Samaritan Drug Overdose Act was not designed to be a panacea to end the scourge of Canada's opioid crisis. Its design is a narrow and focused approach to harm reduction. Picture kids at parties; think about friends having social fun, a glass of wine and a pill, illicit or not. In both cases, they can quickly get into trouble and may need help from a Good Samaritan.
Bill C-224 is not about outstanding warrants, it's not about drunk driving and it's not about weapons-related offences. It does not exempt anyone from further investigation and it does not limit police powers.
Some believe that Bill C-224 does not provide an exemption from prosecution for overdose victims themselves. Proposed subsections 4.1 (2) and (3) clearly address this, in my view. During the review of this bill at the Health Committee in the other place, this was discussed. The Department of Justice's senior counsel in the Criminal Law Policy Section did not have to think hard to confirm that overdose victims themselves are covered under this exemption.
Bill C-224 makes it safe for a scared kid to call 911. It makes it safe for a friend to help save the life of someone they care about without facing criminal possession charges — charges which would haunt that person for the rest of their lives.
The Good Samaritan Drug Overdose Act passed unanimously at third reading in the House of Commons. Members in the other place recognized that this bill is not a cure-all; what they did recognize is that Bill C-224 will save lives.
I hope you will be able to pass this bill unamended. The house Health Committee itself had entertained amendments; some on that committee argued that the bill should be broadened even wider to allow for more exemptions. Yes, the bill could be broadened, but that leads to scope creep and potential barriers to its passage. We need small, incremental steps, and this is one important step I urge you all to support, remembering that the Good Samaritan Drug Overdose Act is only one tool in the harm-reduction toolkit and that harm reduction is only one pillar of the overall opioid crisis.
So let's start saving lives. Let's make it okay for 17-year-old kids to call for help when their friend needs it. Let's start saving lives, one by one, by removing the fear of simple possession for helping saving the life of a friend.
The Chair: Ms. Padaric, are you ready to give your opening statement?
Christine Padaric, as an individual: Absolutely.
The Chair: Please proceed.
Ms. Padaric: Thank you. I must begin by prefacing my statement with the request to the Senate that Bill C-224 must be approved immediately without amendment due to the current opioid crisis in Canada. We cannot delay taking action on this bill, because to do so will result in more deaths.
I'm speaking today from my personal experience. On April 5, 2013, my beautiful, intelligent, funny, fun-loving 17- year-old son Austin died as an absolute direct result of the shortcomings of the current act.
People are afraid to call 911 for fear of prosecution in an overdose situation. Bill C-224 will change that. People want to do the right thing, and this is an opportunity for the Senate to pass a bill that will not only save the life of a person overdosing, but save those who are witnessing an overdose from a lifetime of potential shame, trauma guilt due to their inaction.
My son should not have died, and I do not want another person dying because bystanders witnessing an overdose are too afraid to call 911 for fear of police involvement.
When my son overdosed in 2013, six bystanders watched him exhibit all the signs and symptoms of an overdose: falling in and out of consciousness; not being able to be aroused; sweating profusely; making snoring and gurgling sounds; vomiting; choking and, finally, his nails and lips turning blue.
All of this happened during the course of about five hours — not five minutes, five hours — while others did anything but call 911. Can you imagine spending that amount of time watching someone die? Can you imagine your own child going through that?
These bystanders researched Austin's condition online, just to be sure he was, in fact, overdosing. They put him in a bathtub of cold water in the hopes that he would come out of it. They put him to bed in the hopes that he would sleep it off. They put him in the recovery position so that he wouldn't choke on his own vomit. They discussed calling 911 many times throughout that period but didn't, simply because of fear of police involvement.
Austin was tough. He didn't want to die. He was young, healthy and athletic, and he wasn't a drug addict. He clung to life until the early morning hours of April 5, when they checked on him and the others thought he looked "dead.'' With that, the dealer and resident of the apartment fled and only then did the others call 911.
But Austin didn't die right away. Paramedics were able to get a heartbeat. It took six days and an unimaginable amount of taxpayers' dollars before his brain finally gave out and shut down the rest of his organs. In that time, in those six days sitting at his bedside, holding my boy, I had to do what no parent should ever have to do: wait for his strong, vibrant body to shut down.
During that time of absolute helplessness, my family and I were so confused as to why others would abandon this beautiful, funny and kind boy, a boy that once made me pull over to the side of the highway in the middle of the night to pick up a stranger who was walking alone in a snowstorm. I have countless stories like this of Austin helping others in need, and I know, without a doubt, that if it had been Austin witnessing someone overdosing, he would have done the right thing and called 911, even if he had to get creative to do so.
That's what drives me to push for this bill. I know Austin would want it passed, and it's Austin's story that has really motivated Mr. McKinnon to pursue this bill.
If this bill is passed, make no doubt it will take effort to educate the public, but education works. I have proof. I have been teaching overdose and harm reduction training for almost four years now in high schools in Waterloo. Since that time, I have had students contact me months after the training to tell me stories of them calling 911 when they were at a party and were scared about someone's state of health. This is because they learned that it's more important to put life over law.
I facilitate a grief support group in Waterloo for parents who have lost a child to overdose. Over and over, we share the same stories, so often of our children being abandoned at the last minute in their time of greatest need.
The proposed amendments before you will allow us to educate society and change this behaviour. Please approve this bill so that lives can be saved. Please approve this bill now, without amendment, so that a person has a second chance to seek the help they need. Please approve this bill so that mothers do not have to bury their children. Thank you.
The Chair: Thank you.
Todd Doherty, Member of Parliament for Cariboo—Prince George: Thank you, Mr. Chair, and thank you to the committee for allowing me to speak on Bill C-224, An Act to amend the Controlled Drugs and Substances Act. Thank you to our sponsor, the member for Coquitlam—Port Coquitlam, for sponsoring this important piece of legislation.
I had the opportunity to speak to Bill C-224 at second reading, and I want to once again offer my unequivocal support. At the core of the debate over this legislation is this: Witnesses fear that, in the case of an overdose, when they pick up the phone, they may be criminally charged for possession or worse. They fear judgment from others. These fears ultimately force witnesses to choose between saving a person's life or being arrested and charged. It is time that we recognize that it may not always be in the public's interest to prosecute an individual who picks up the phone and asks for help when someone has overdosed.
Drug overdoses in my provinces of British Columbia are at record highs. According to the B.C. Coroners Service, illicit drug overdoses claimed the lives of 914 people in 2016 alone. We are at epidemic levels. Opioid abuse is so severe in Canada that more people die of opioid overdoses than in car crashes, and many of those addictions start not with illicit street purchase but with a prescription.
The Good Samaritan Drug Overdose law would provide amnesty from being charged with drug possession to those who call in an overdose. I stressed this in my speech before the house, but I will once again reiterate it. If Bill C-224 would give people the courage to pick up the phone and take greater action because they are not afraid, there is no question that Canada will benefit from this bill. We can all agree, regardless of partisan lines, that every life in this country is valued. Considering the growing number of overdoses occurring in Canada, we must take every measure possible to protect those vulnerable lives.
Good Samaritan laws do not protect people from arrest for other offences, such as selling or trafficking drugs or driving under the influences of drugs. These policies protect only the caller and overdose victim from arrest and prosecution for simple drug possession, possession of paraphernalia or being under the influence. We know that most deaths and complications occurring from overdoses can be prevented with the appropriate medication and emergency response time. Too often, however, these calls are not made, and people are left without necessary medical assistance. I've already stated that, every year, far too many lives are being lost to drugs and alcohol. Many more Canadians are injured or disabled as a result of an overdose.
Mr. Chair and senators, today I appear before you not as a Member of Parliament. I appear before you to provide a face or perhaps personalize the importance of this bill to you. I'm a husband. I'm the father of four beautiful young adults. I have brothers and a sister. This bill is of great importance. However, it comes far too late for my family. Accidental death by overdose has negatively impacted our family also.
In 2008, we received a call that my brother-in-law was found deceased just a few minutes before the call. Mr. Chair, my brother-in-law was not a drug user. He was not a criminal, nor did he lead a high-risk lifestyle. While all of the facts of his death are still unknown to this day, what is known is this: My brother-in-law died alone of an accidental overdose. He was tossed aside, and whoever was with him at the time chose not to call the police or an ambulance to provide assistance. Rather, they erased his phone, including all call history and any contacts and any evidence of their involvement. I am going to say this one more time. My brother-in-law died alone.
I can't help but think that, if this bill had been in place in 2008, my brother-in-law would still be alive today. My mother and father-in-law would still have their only son. My wife and her sister would still have their little brother, and my children would still have their uncle.
I've stood in this house before to say that, collectively, we can have a positive legacy. Like countless others, my brother-in-law should not have died. Through passing of Bill C-224, we have the opportunity to allow people to pick up the phone and take greater action because they will not be afraid of being charged. It is our duty as members of Parliament and yours as Senators to facilitate change, and I view this bill as a perfect place to start. Maybe, just maybe, lives will be saved in the process.
Michael Parkinson, Community Engagement Coordinator, Waterloo Region Crime Prevention Council: Good morning. On behalf of the Waterloo Region Crime Prevention Council, it is my pleasure to provide evidence discerned from our research investigating the barriers to calling 911 during an overdose emergency.
Our mandate at the council is really to address the root causes of crime, fear of crime and victimization. We do that collaboratively across multiple sectors and multiple systems.
Canada, like the U.S.A., is experiencing the worst drug-safety crisis in our nation's history, and not just recently either. I am grateful that, more than 15 years into this deadly epidemic, that using descriptors such as crisis, emergency and epidemic is not up for debate any longer. Across this country, Canadians seek an urgent and proportional response that has yet to be fully realized.
Each new year is a record year for overdose deaths. In Ontario, there have been more than 7,000 opioid-related fatalities since the year 2000. For context, there were 44 deaths from SARS in Canada total.
Collectively, we have spent billions of dollars subsidizing prescription opioids, essentially pharmaceutical-grade heroin, over the last 17 years. Now we have what I call the "bootleg'' fentanyls emerging in communities right across Canada. These are high-dose opioids that we first detected and advised about in 2013. These are the substances that are responsible for driving up overdose deaths in British Columbia, in Alberta and, we suspect, in Ontario as well, as well as all of the northeastern U.S. states.
People at risk are people who are using occasionally and daily. Often, the consumer has no idea what's in their substance. Often, street-level dealers don't know what they're dealing. People are at a significantly elevated risk of death.
Bill C-224 is an essential lifesaving tool in our nation's first aid kit. You've heard that an overdose is a medical emergency. It's worth remembering that seconds really do matter. It's worth remembering that a victim cannot save themselves, that they are absolutely dependent on a witness or Good Samaritan. That's the difference between life and death. That's the difference between a lifetime of disability or not. The best medical advice from medical authorities right across Canada always includes calling 911.
In 2008, we combed through hospital and coroner records in Waterloo region, and one of the significant findings we found was that more people showed up at the hospital than were brought in by EMS. It is a phenomenon known as the dump and run. People want to do the right thing. They fear criminal justice involvement. They dump the victim at the door, and they take off.
In 2012, we sought to determine the barriers to calling 911 during an illicit overdose emergency by conducting primary research in an area of southwestern Ontario that we thought was representative of Canada as a whole, urban and rural, mix of incomes. We surveyed 450 people who were using substances or on the pathway to recovery from addiction.
Almost 60 per cent of the respondents had previously witnessed an overdose emergency. We found that witnesses to an illicit overdose — and most times there's at least one witness — will call 911 and wait with the victim just 46 per cent of the time. In contrast, call rates for cardiac arrest are above 90 per cent.
We found that the primary reason for not calling 911 was fear of the police presence, leading to the victim and/or the Good Samaritan being entangled with the criminal justice system. We found that 83 per cent of those surveyed thought that they might face criminal charges if 911 was called.
Fear of the criminal justice system is the major barrier to making that 911 call, and that's consistent with some newer, albeit limited, findings from across Canada. I'm aware of some data from British Columbia, from Manitoba and from Ontario. Our findings are consistent with the research from the U.S.A. It is the primary reason most U.S. states have a Good Samaritan law in place today.
Early evidence from the U.S. indicates that 88 per cent of people using substances are more likely to call 911 after the establishment of a Good Samaritan law and being made aware of its existence. It is essential that Bill C-224 be supported with training and education for enforcement personnel, for people fearing enforcement and justice and everybody in between.
In Waterloo region, our council considered the report and the policy options — all first responders and folks in health and social services — and we landed on recommending a Good Samaritan legislation. Five years later, we are pleased to offer our support of Bill C-224. We are confident that organizations right across Canada would like to see this bill expedited.
There is little evidence to suggest that Canada's overdose crisis will end soon enough. Communities are ready for Bill C-224. It is not the magic bullet that will, on its own, eliminate the overdose crisis, but there is no one thing anymore.
The Chair: Please wrap up.
Mr. McKinnon: But Bill C-224 is absolutely a key tool that is supported by the evidence and guaranteed to save lives.
The Chair: We'll have to end it there and move on to questions, beginning with the deputy chair of the committee.
Senator Baker: Thank you to the witnesses for your excellent presentations and the real value of this legislation.
I had a technical question when I first looked at this. Of course, the job of the Senate is to be sober second thought and look at things that may arise. There's probably an obvious answer to this, but I don't see it. I think it's probably technical; it doesn't interfere with the intent and the approval of this bill.
This bill stipulates that overdose be charged under subsection 4(1) of the Controlled Drugs and Substances Act. This subsection only covers Schedule I, II and III drugs. There are eight schedules. Six of the eight include drugs.
I'm asking this technical question because, when you look at the recent case law — a typical drug case, possession — if you look at New Brunswick, three weeks ago, in a case called Frenetti at paragraph 71, Schedule I drugs, seven pills of methamphetamine, and then Schedule IV drugs, diazepam, typically used in conjunction with Schedule I drugs.
You look at the Manitoba Court of Queen's Bench in Pilkington. Paragraph 19:
The Crown seeks a concurrent sentence of 18 to 24 months for the Schedule IV drugs, whereas the defence maintains that the schedule should be substantially less than that of a Schedule I offence, given the lesser maximum penalty of three years.
You look at Newfoundland, where I'm from, and you see in R. v. Adams lorazepam, morphine, cocaine, oxycodone. They were all found in the same possession of the person, but lorazepam is a Schedule IV drug. For that, the person received 405 days in jail for having that in his possession. But it's a Schedule IV drug and not contained under this bill.
I could go through each province just to show that there's a variety of drugs usually in any possession, for the purpose of trafficking especially.
So, you address the main drugs here, though. Let's not forget that; I, II and III are your main drugs. These are the drugs. Police are pretty smart. They will charge what they can charge, and they will charge for —
The Chair: I'm going to encourage a question here.
Senator Baker: That's my question. Is there any answer to that?
I imagine this may have been visited in the House of Commons, as it probably should have, and it doesn't distract from the value of the bill; don't get me wrong. This is a technical question, though. Does anybody have an answer to that?
Mr. McKinnon: When we were working on this bill, we felt it necessary to keep the scope of it very narrow. We ran it through officials at Justice and Health to ensure we had their support, because government support was critical for the passage of this bill, for the uptake by the House of Commons.
There are all kinds of ways this bill could have been broadened. There were suggestions in the Health Committee in the other place to add immunity from breaches of court orders and so forth. Those particular suggestions were ruled "unreceivable'' because they expanded the scope of the bill at that time.
But the real focus was to keep it narrow so we could actually achieve something. If we make it too big, we end up trying to solve the world and don't actually have something that we can pass.
The upshot of that, I believe, was the result that we had in the House of Commons; namely, that it passed on a voice vote unanimously at second reading and on a recorded division unanimously at third reading.
Senator White: Congratulations to Mr. McKinnon for bringing this bill forward. My sincere condolences to both Ms. Padaric and Mr. Doherty on your losses.
As you mentioned, Mr. McKinnon, I did speak to the bill in the Senate, and I do support the bill. For transparency, I am suggesting some amendments.
Having read the evidence from the house side, there are some concerns raised by the Department of Justice. Mr. Saint-Denis, Senior Counsel, Criminal Law Policy, raised some concerns around the drafting of the bill. Was there any consideration given to making the changes that he suggested at that point in time? Were there any amendments brought forward or discussions with Justice at that point to make the changes?
Mr. McKinnon: He made those suggestions in committee when he was a witness before the committee. As I recall, those suggestions did not result in any attempt to amend the bill.
I think there's perhaps a style issue. The legislative drafters that we used to write the bill used this particular form of expression. I recognize that it's different than what Justice themselves would have done, but it seems to serve the purpose in any event.
Senator White: But if I may, Mr. Chair, I don't know if it does. What Mr. Saint-Denis is suggesting is that the bill directs the police not to charge versus that the individual would not be found guilty of. Because realistically, we're not removing the offence from the CDSA; we're just stating that there could be an exemption for people.
I don't know if it is a writing style. He's not suggesting it's a style. He's suggesting it's poorly written. I'll use the word "problematic.'' He doesn't say that; he talks about the manner in which it's written.
I have a second question. Throughout the evidence, there are questions about whether the subject who has the overdose will be covered. In your comments, you've identified that you feel subsections 2 and 3 cover everybody, but really, subsection 4(3), if we're clear here, is called "Precision.'' In other words, it brings you back to subsection 2. It's just trying to make sure subsection 2 is clear, but it doesn't add anything to the legislation.
The fact that subsection 3 says anyone just adds precision to section 2. It does not necessarily mean that it includes the individual who actually has overdosed, or, as is my concern, the individual who decided to leave. In 32 years of policing, not a lot of them stick around. They're gone like the wind.
Last, I do believe expansion will be helpful here. I want people not to be afraid: not be afraid to leave, not be afraid to stay, not be afraid they're going to get charged by giving the half tablet of oxy80. I'm not sure that it removes that concern.
When you had the discussions around it, did you look at adding to the bill to ensure absolutely that no one either remaining or leaving could be charged as a result? Was that raised as a concern? I went through the evidence trying to find specifics.
Mr. McKinnon: We went through a number of iterations in the writing of this bill. We went through some language that was incredibly convoluted that I couldn't understand. We broke it out a little bit in this way to make it clearer, at least to me. The intent of that subsection 4(3) was in fact to help clarify the language.
Reading this language a year later, I absolutely see your point, but I also believe that it does what we intended. There was testimony in front of the Health Committee in the other place that supported that belief as well.
Senator Jaffer: Before I start, I want to acknowledge Ms. Padaric and Mr. Doherty for having the courage you have. Many people watch these hearings, and I believe just your courage will help, so thank you very much.
I never like to disagree with my friend Senator White, but I don't agree with his interpretation. It says, and I would like your explanation, "from an overdose is to be charged.'' So there's nobody being charged yet. Nobody is charged, and you're saying "won't be charged.'' Was that your understanding?
Mr. McKinnon: That's my understanding, yes.
Senator Jaffer: I also wanted a clarification as to "sought assistance and having remained at the scene.'' Why do you need both?
Mr. McKinnon: We wanted to address the very point that Senator White was raising: People make the call and then run.
I think it's important when there's an emergency of this kind that people remain on the scene to assist, to help first responders find the victim and to inform them as to what's going on and what substance they may or may not have taken. Again, delay means death. Anything we can do to facilitate prompt care for the victim is going to help save their lives.
Senator Jaffer: Hearing all of your compelling testimony, I understand that you want this to pass, as it did unanimously in the house. You want it to pass here. There may be some challenges, but you're saying not to have amendments now and get this through because of what you have said. Is that correct?
Mr. McKinnon: That's certainly my hope. I recognize your job is to pass good legislation, just as it is ours. You can't back away from that. I also worry that perfection is the enemy of the good and, if we try to achieve perfection here, we may end up bogging this down for months. It may have to go back to cabinet to see if the cabinet will support it again, support the amendment.
Delay is critical. There are people out there who can benefit by us passing this bill in an expeditious way. It's going to take time for the knowledge of this bill and what its limitations are to filter out into the population. We'll need to have a Facebook campaign and social media to inform the youth about it. The sooner we can get that happening, the sooner we can get people aware of the fact that it is okay to call 911 to help your friend, and the sooner we can start saving lives.
Senator McIntyre: Thank you all for your presentations and thanks to Mr. McKinnon for sponsoring this bill, which has received unanimous support without amendment from all parties in the House of Commons. That obviously shows how important it is.
The bill is not a complicated one. It only contains two clauses: the short title, and then the amendment to the Controlled Drugs and Substances Act in order to create an exemption to the application of 4.1.
That being said, Senator Baker addressed the issue of the variety of drugs. I also made another observation. I note that the bill applies only to possession, not trafficking and possession for the purposes of trafficking. Is there a particular reason why the offences of trafficking and possession for the purposes of trafficking were excluded from the exemptions sought by the bill? Is it because it would be harder to prove possession for the purpose of trafficking as opposed to simple possession?
Mr. McKinnon: Again, that's something we had discussions about with the officials in Justice, and they were very clear that they wanted trafficking removed from consideration here. Simple possession they would be able to support, but anything to do with trafficking, they didn't want to have anything to do with. We wanted to make sure we had the support of the government because we wanted to make progress and not try to achieve a magnificent outcome that is unachievable. Does that answer your question?
Senator Pate: My condolences to both of you for your losses.
As I look at this, I think of individuals who might be in this situation of being with one of your loved ones, maybe on probation if they are a young person, or on parole, maybe on bail release or some other condition.
I would echo the question about trafficking, but I'm also wondering why you decided to take away in the proposal that there would be an exemption if someone doesn't stay. Most people don't know what the law is in those moments. They may be googling how to save someone, but I doubt they are going to be googling what the law is. Why not have the exemption there so there's a far better chance that calls will be made and, if you publicize that, that someone may not stick around but at the very least you may have more information to assist you in saving the lives.
Mr. McKinnon: I'd say what I've said to some of the previous questions, and it is that the desire was to keep it focused. If we start introducing exemptions from parole violations or exemptions from various court mandated requirements, we're getting into other realms of jurisprudence. We're involving other acts. This bill is strictly focused on the Controlled Drugs and Substances Act.
Certainly at second reading when some of those ideas were proposed, it was beyond the scope. We can't modify any of the other acts according to the mandate that the house gave us to consider this bill. They might have been able to be considered before we submitted this at first reading, but at second reading they were not on the table. They were not receivable because they expand the scope of the bill beyond what the house passed to the committee.
Again, I think our main focus was to try to keep the scope of this bill narrow so that we could achieve a result. The bigger we make it, the more chance we have of running afoul of something that we can't get agreement on. We had unanimous agreement on this bill the way it stands. If we'd made it bigger, we might not have been able to do that. As a matter of practicality, we tried to keep it narrow.
Senator Pate: It's unfortunate because, in fact, the end result may limit what your overall objective was.
Mr. McKinnon: I think that's true, but again this is not supposed to be a silver bullet to solve all the problems. If we can solve these problems, the ones that it is focused on, that's a big step forward. This is a simple change, and it costs the government and law enforcement zero. If we can save one life, just one life, because somebody makes a call, it's well worth all of our time.
[Translation]
Senator Dagenais: Every life matters, Ms. Padaric, and I am sympathetic to what you have been through. I am not opposed to the measures proposed in this bill, but, at the same time, we need to keep in mind that the drugs your son took were supplied by someone. What I wonder about is what to do when we encounter the person giving or selling a product that could be fatal. I would like to hear from either you or the other witnesses on that.
[English]
Ms. Padaric: Can you the repeat the second part of your question?
[Translation]
Senator Dagenais: Your son took drugs, and someone obviously gave them to him. My question is what are we to do when we come face to face with the individuals who are supplying our children with these fatal products.
I would also like to hear from the other witnesses, if they have any comments.
[English]
Ms. Padaric: Yes, my son was in an environment where drugs were produced. In my son's situation, it was morphine. But again, regardless of the substance that was produced at the event, they should have called 911. I'm trying to separate the saving of a life from the law, and a life is more important than the law.
In my son's situation, the dealer was charged with trafficking as well as manslaughter, but there were six other people who were in the apartment that night that could have acted.
Part of the training that I do is helping young people understand that they have choices and that there are things that could have been done. Yes, there were drugs involved, but they could have taken my son out of that apartment and called 911. They could have removed him.
I don't really care, in hindsight, whether the dealer or anyone had been are charged. That's not my concern. All I want is my son's life back.
[Translation]
Senator Dagenais: Are there any other comments?
[English]
Mr. Parkinson: I should have mentioned in my presentation that in speaking to the bill in the house, I also talked to the RCMP officers in my community that dealt with the issue, are close friends of mine and knew my brother-in-law. I asked them their opinion of the law, of the piece of legislation, and they all came back and said, without a doubt, that if this saves a life or stops or limits the number of overdoses that they have to attend, then this is an important piece of legislation. They saw the text of it.
Secondly, I do not advocate criminal behaviour. I do not agree with drug use. I can tell you, as I'm sitting here — not as a Member of Parliament — what I would love to do to that person. But to echo Ms. Padaric's comments, I'm not looking at the administration of the drug or giving the drug to my brother-in-law. I'm looking at the act of not calling, because if we could just have our brother-in-law back, that would be the most important thing for us.
I think if you asked any other parent, they would not be looking at assigning blame. I'm sure there's a lot of that that goes through you. You go through a wide range of emotions. Obviously, you can see so many years later that it's still raw for our family. I think the biggest thing for us is that — I appreciate, chair — that he was tossed aside and that there was no call made. He could have lived; he could be here today.
I think that's the intent of this bill, and I've heard all the comments.
The Chair: We have to move on.
Mr. Parkinson: I'm sorry, Mr. Chair. If I could just finish really quickly —
The Chair: No, I'm sorry, I gave you a warning.
Senator Boniface: I was interested, Mr. McKinnon, in your comments with respect to the 37 states that have enacted similar legislation. I'm wondering if we have any information on the downsides. I've heard the upsides, but have you any information that would tell us what their experience has been?
Mr. McKinnon: I don't really have any experience or data of that kind. I would suggest Mr. Parkinson might have more information on the data, what it means and what the import is. But there is quite a number of states — 37, as I mentioned — that have this. It starts out with a few, and more have added it because they feel it is effective, and I agree with that. I think that we will see, once we enact this and get it into place, the value of it. It's hard to quantify. One life is all we need to save to make it worthwhile.
Senator Batters: Thank you to all of you for being here. I'm very sorry for the tragedies that you have endured, Ms. Padaric and Mr. Doherty.
Ms. Padaric, when you were speaking about your son, Austin, I took note of how you said he was always helping others. You said. ". . . even if he had to get creative to do so.'' I feel this bill would be a fitting legacy for your son, because in this way he would be helping others in the life-threatening situation in which he found himself.
Yes, what we're trying to do, obviously, by this bill is to try to save lives, and I would like to see as many lives saved as possible. I actually think that Senator Baker made a great point in asking why this particular bill only applies to these three schedules. Why limit it to those particular three? When I heard that a drug like lorazepam, also known as Ativan, is not included, I had a real concern about that.
Mr. McKinnon, can you please address that concern?
Mr. McKinnon: Yes. I guess I could go back to my earlier answer that we wanted to keep the focus and scope of this bill narrow so that we could achieve broad support for it. The broader we make the bill, the narrower our support gets, typically.
Senator Batters: Did you have any indication that including those types of drugs would take it out of the scope of unanimous consent from any party?
Mr. McKinnon: Actually, when we put this together, we had no expectation of unanimous consent. We talked to the Justice and Health, and these were the suggestions they made to us as to the scope that they could support. That factored very heavily into our consideration of what to address in this bill.
Senator Batters: Did you have any specific party — Justice or any of the parties in the House of Commons — that indicated that if you included more schedules of drugs, including something like a Schedule IV lorazepam, that hat would negate their consent for the bill?
Mr. McKinnon: No, I did not. However, by the time we reached the floor of the Commons, it was already kind of in the shape you see it now. At that point, there's not a whole lot of scope for change.
Senator Batters: Again, we're just all trying to make it the best bill we can in a quick and efficient manner. Often, the Senate is actually pretty good about that, to make sure we have a bill that achieves the very purpose you're trying to get it to do.
What I'm looking at is the last line of the first page of your bill, where it speaks about that person having sought assistance and right now it says " . . . and having remained at the scene." Do you have any concern about using the word "and'' there as opposed to using the word "or?'' That could potentially mean that the person has to seek assistance and remain at the scene rather than have it as an "or.'' It could apply to more people, potentially.
Mr. McKinnon: Again, we weren't really looking for blanket immunities. We want people to stick around and help. It's one thing to make the call and then split, but who is going to be around to tell first responders where to go? Who is going to be around to care for this person as they're in distress?
Senator Batters: So you want the person to have to stay at the scene in order to be able to be covered by this exemption?
Mr. McKinnon: Correct.
Senator Sinclair: I have another technical question in addition to the two that have been raised by Senator Batters and Senator Baker. This is a bill that has some wording issues around it, and I'm looking at this from the perspective of my experience as a judge facing a case in which an individual is charged.
If the issue that Senator Batters has just referred to is considered, I'm thinking about how one would interpret the situation of a person who, instead of calling 911 and remaining at the scene, in fact throws the person in a car and takes them to the hospital. Is that person intended to be protected by this provision, if they in fact stay with the person at the hospital, which is technically not the scene?
Mr. McKinnon: I would certainly agree that one of the concerns about this bill is the definition of what the scene is. I guess in one sense you could say that wherever the victim is, that's where the scene is.
Senator Sinclair: You'd like to think so, but I can probably tell you that it's not.
Mr. McKinnon: I certainly recognize the validity of these legal concerns. I'm not a lawyer, which means perhaps that's why some of this stuff slipped by me. Really, the intent is we want people to be able to seek help for people who are in distress in some manner or fashion, without being fearful of prosecution for possession charges.
We would love to make it broader, if that were possible, but again, we want to keep it as narrow as possible.
This concept of what "at the scene'' means was raised during the Health Committee deliberations in the other place, and I gave some thought to how to narrow that, but these just seem to push the ambiguity somewhere else.
Senator Sinclair: It might be more helpful if we said, "remains with the victim,'' or "remains with the overdose victim,'' but I'll leave that for consideration.
Let me also, incidentally, add my words of support for the intent of the legislation. I really believe this is needed. I want to make sure that it is not something that can be easily circumvented. That's why I asked the question I did.
I also add my words of condolence to the two of you that have brought forward your individual cases.
Senator Omidvar: My words of condolence too. It gives us a different perspective outside of the technical legalese.
My question is around false alarms. Does the law, as you have conceived it here, provide for protection even in those cases where an overdose has not occurred? Someone thinks an overdose has occurred and calls 911. The police arrive and there is no overdose. What happens then?
Mr. McKinnon: We don't expect people to be expert medical personnel. We don't expect them to know what the legal definition or the medical definition of overdose is. If they think somebody is in distress, if they think somebody needs help, they should make the call. As far as I'm concerned, that's the point of the bill.
I guess the definition of overdose, in this bill, basically is if a reasonable person would suspect that they're in an overdose. That doesn't mean an expert medical practitioner or an expert doctor or a first responder would believe that, but if the man on the street believes that there's a problem. "Joe is not breathing. We don't know if it's really an overdose or not, but there's a problem. Let's help him out. Let's not run away or dump him in the emergency ward and take off. Let's help him.''
The intent really was that, if somebody reasonably thinks that this person is in distress, they should make the call, and they should be protected for it.
Senator Omidvar: I understand that's the intention. I'm not sure that would be the outcome in the case of false alarms.
Mr. McKinnon: Of course, Senator Sinclair certainly has valid experience in that area. We hope to see this pass without amendment mainly because we want to get this done quickly. It's important. But, really, it's up to you guys to decide what it needs. That's clearly your role here, and I respect that role.
Senator Joyal: I have a similar question in relation to subparagraph (2). It says that the person who would be exempt has to suffer from an overdose. I have difficulty conceptualizing that you have to suffer from an overdose yourself. That is, your mental capacity is impaired. When you are in an overdose, you're not really mastering your mental capacity. That person would be exempt from being charged. The person would still be, as Senator White has said, guilty, presumably, of an offence but would not be charged.
I have difficulty understanding because what happens is that, most of the time, the person who would be expected to call is not somebody who is in the same condition as the person who is at risk of dying. I wonder why you attach the condition of being under overdose to be able to be exempted. It seems to me that it puts a great burden on somebody whose mental capacity is already affected or impaired to the point of not really realizing what's going on around that person.
I am trying to wrestle with the way it is conceived in terms of exemption.
Mr. McKinnon: With respect, I have to disagree with that interpretation. The wording says, ". . . because they, or another person, are suffering from an overdose. . . .''
The idea there, I guess, was that, if someone has taken some substance and are feeling, "Things are going sideways here; I had better call for help,'' then they should be protected from possession charges themselves, but if they see their friend in distress, they should also be protected. They should be able to make that call with immunity.
I think that's what this language says, if they seek assistance because they or another person are suffering from an overdose. Whether they're actually suffering, I believe that paragraph (1) speaks to a belief of there being a problem they "would believe requires emergency medical. . . assistance.''
So whether it is in fact an overdose in medical terms or in legal terms, I think what matters here is that they believe there's a problem and they think it's something that requires medical assistance.
Senator Campbell: Thank you, Mr. McKinnon. I think you know my admiration for you for bringing in this bill.
Probably more than anybody in this room, I understand overdoses. I spent 20 years investigating them, and my sympathy goes out to both of you. I can't tell you the number of times I've heard this.
My biggest concern here is this idea of incremental steps. I don't believe in incremental steps. I believe we get it right, and we cover everybody that we can.
With this bill here, the question I have for you is: What damage do you see coming if we make an amendment to it and make it more inclusive? I think we cover more people. We take the problem away from our judges having to decide on small terms.
I know that this will save lives. I know that it won't save lives immediately because the culture that we're dealing with does not deal in reality. They don't think straight. There's this idea that there's an overdose, and it's calm. It's not. It's a total panic, and nobody knows what's going on. I would remind everybody that it is rare to see a death that is opioid only. Generally, you start with a high level of alcohol and then start adding. So it's a cocktail that's going on.
Is it not more important for us to make sure that we're covering as many people as we can the first time rather than having to come back with judicial decisions that have questioned what it is? Get it right, and get it through. And —
The Chair: Leave it there, senator.
Senator Campbell: I will. Thank you, chair.
Mr. McKinnon: Certainly I'd like it to cover as many people as possible, but there is a practical limitation here. We can't solve the world with one bill. We can solve the small subset of people that fall into this category. This bill has been in the whole process for almost a year now. It's a very simple bill that nobody objects to, really. Everybody supports, in principle, what we're doing, and everybody wants to make it better.
My fear is that, again, perfection is the enemy of the good. If we try to make it perfect, we will bog it down. We might add months. We might add years to the process before we can actually get this on the street helping people. I guess that's my concern. Changes involve a number of permutations and combinations down the road in the other place and having to go to cabinet to see if the government's going to support it with the changes and so forth.
I'd just as soon let sleeping dogs lie, if we could.
The Chair: Thank you, witnesses, especially witnesses who have suffered losses in their families. We certainly appreciate your testimony and your assistance with the committee's deliberations.
For our second hour today, we're joined by Dr. Isra Levy, from Ottawa Public Health, the Medical Officer of Health with that organization; Trevor Daroux, Retired Deputy Chief with the Calgary Police Service; and Michael Crystal, a lawyer with Spiteri & Ursulak LLP.
Gentlemen, thank you all for being here. Dr. Levy, we'll begin with your opening statement, sir.
Dr. Isra Levy, Medical Officer of Health, Office of the Medical Officer of Health, Ottawa Public Health: Good morning, and thank you very much.
I'm Isra Levy, and I'm the Medical Officer of Health for the City of Ottawa. I'm grateful to be here to share with you my perspectives from the frontline local public health work, where we deal, of course, with prevention of and response to addiction and, more broadly, with promotion of positive mental health.
We know that the spectrum of medical approaches to addiction includes prevention, treatment and harm reduction, which are in practice interrelated, and of course also complementary with law enforcement.
As you know, the current situation is serious and the risk of overdose is growing. Here in Ontario in 2015, there were over 800 unintentional overdose deaths. More people died from unintentional opioid overdoses in Ontario than from motor vehicle collisions.
From our point of view this is a human issue, not a statistical issue; it's a health issue. Though it has been felt most intensely in the western areas of our country so far, no part of Canada is, or can expect to be, unaffected.
Early actions taken by a Good Samaritan improve health outcomes in the event of an overdose. They buy time for emergency responders to arrive on scene. But that can only happen if those emergency responders are notified. Many overdoses occur in the presence of another person, yet less than half of the people who witness an overdose call 911. When emergency medical services are not called following an overdose, there is unquestionably an increased risk of death, even if the antidote naloxone has been given to reverse an overdose that is caused by opioids. I certainly note that many overdoses are not caused by opioids or are caused by multiple drugs, but there are things that can be done in all of those circumstances if emergency responders get there.
In Ottawa, we have run a local opioid overdose prevention program for just over four years now. We ask any person who uses drugs, and their family and friends, to be trained to use naloxone. With our local partners, we have now distributed over 1,000 naloxone kits to members of the public in our community, and we know of at least 100 of those that have been used at the scene of an overdose. But we also know that only about a third — in fact less, 29 of 101 — of the people who we are aware used a naloxone kit — called 911. Barriers to calling for help included especially fear of being arrested, and fear of being found breaching probation or parole.
Bill C-224 aims to reduce these barriers, and from our point of view it is very welcome. If it was passed quickly, we could immediately begin educating those we work with of the fact that they are no longer at risk if they call 911 after witnessing an overdose.
As you've heard, many jurisdictions have enacted Good Samaritan laws to encourage people to seek medical attention for an overdose or for follow-up care after naloxone has been administered. There is some evaluation work that we're aware of, not much. The effective overdose immunity laws, as far as I'm aware, are quite limited in terms of what we know about it. But it seems that their impact is growing.
One study in Washington State from about five years ago — Washington was, of course, one of the first states to pass such a law — has apparently found no indication from police or prosecutors that it has posed a serious impediment to the conduct of their work. More importantly, from my point of view as a physician, almost 90 per cent of opioid users in that jurisdiction indicated that now that they were aware of the law, they would be more likely to call 911 during future overdoses.
In the absence of a Good Samaritan law such as the one we are speaking about today, we on the front lines of health must rely on police departments' discretion as to when to attend overdose-related calls. While we appreciate the often collaborative nature of health and law enforcement relationships, and certainly we enjoy that in Ottawa here, this is too uncertain a strategy to ensure that people who use drugs will not be afraid of getting into trouble when they call 911.
[Translation]
I can safely say that Bill C-224 can save lives.
[English]
Based on what is happening on the ground in Ottawa, I am confident in saying that the Good Samaritan Drug Overdose bill will save lives and will save lives quickly. I strongly support the bill and request and urge that the Senate pass it without amendments, lest there be a delay, so we can get on with educating our community in this regard. Thank you.
The Chair: Thank you. Mr. Crystal.
Michael Crystal, Lawyer, Spiteri & Ursulak LLP, as an individual: Chairman Runciman, Deputy Chairman Baker, honourable senators, thank you very much for the opportunity to speak with you this morning about Bill C-224, the proposed Good Samaritan Drug Overdose Act. It is always a privilege to appear before the learned committees of the Senate, and this occasion is made all the more special by the presence of my 14-year-old son James, whose cohort is very much the interest of this proposed piece of legislation.
I speak to you today as a private citizen, father and criminal lawyer who has practised criminal law for 25 years and has seen the ravages of opioid addiction up close. Quite frankly, the images are still with me: the 15-year-old boy in North Bay who loaded his father's shotgun and walked into a drugstore demanding oxycodone; the perversely corrupt pharmacist who re-addicted my client to opioids after he had been clean for two years, only to seek referrals from him; finally, and most recently, a young Aboriginal boy in Cornwall Island who got involved in a human trafficking event on the water, to be paid in oxycodone.
Margaret Atwood, in her poem Marrying the Hangman, wrote, "To live in prison is to live without mirrors. To live without mirrors is to live without the self.''
Bill C-224 is a mirror; it is a reflection on the reality that people who consume controlled substances together inevitably fail to call 911 when a friend is overdosing, for fear of self-incrimination. Consequently, I submit to you that Bill C-224 will save lives and that it must pass as is without amendment.
I will now turn briefly to the relative merits and limitations of the bill.
Firstly, the hallmark of Bill C-224 is that it provides an exemption from possession of substance charges. It is my submission that the exemption applies at the very least to both the 911 caller and the overdose victim. As a piece of legislation providing an exception, the governing principles of statutory interpretation will require that the legislation be strictly construed.
On page 483 of Sullivan on the Construction of Statutes, the author writes:
. . . the courts sometimes suggest that statutory exemptions and exceptions are to be strictly construed, or alternatively, that a person seeking the benefit of the statutory exemption or exception must establish clearly that they come within its terms.
I am led to believe that there may be proposed amendments to this legislation, and I recognize very clearly this is the push-pull that we're up against. This bill is a private member's bill. It is basically all about calling 911 when someone is OD-ing, and it is meant to encourage someone to act. It is not a government bill, and the temptation for all of us is to amend it, make it better and look towards the broader picture, which is what legislation is all about.
At the end of the day, I think it's a great trial balloon. It's a great step forward. I think we have to realize it's about dialing that number, 911, in situations when there's an opioid addiction. It has the promise of things greater, but I say set it in motion, even though that is not typically how we think of legislation. I say in this particular case, because it will save lives, set it in motion. Watch it grow. See how it's interpreted by the courts and then build on it. After all, we do have to remember that this bill has had the consensus of the other place, and for that reason I think it has an added gravitas.
Thank you very much. I appreciate your time.
The Chair: Thank you. Mr. Daroux.
Trevor Daroux, Retired Deputy Chief, Calgary Police Service, as an individual: Honourable senators, I am pleased to be here today to speak to Bill C-224, An Act to amend the Controlled Drugs and Substances Act. The Good Samaritan Drug Overdose bill is an important piece of a much-needed comprehensive strategy to address a crisis occurring in our country.
Fentanyl has created a health crisis that we have not seen before. In 2016, the British Columbia Coroners Service reports 914 illicit overdose deaths. While the Alberta statistics for the same time period were not publicly available until two days ago, the Alberta government reports that from January to September 2016, there have been 308 overdose deaths, 193 related to fentanyl, 145 to other drugs. Two days ago, they announced 343 related to fentanyl.
While the response necessary to address this crisis is complex and multidisciplinary, many of these lives could have been saved with a timely medical intervention. It is incumbent upon us to identify and eliminate barriers that prevent or restrict those overdosing from seeking medical attention. The fear of prosecution has, in the past, presented such a barrier. Bill C-224 will serve to address this.
The current fentanyl crisis highlights the challenges, issues and dangers associated with the illicit drug trade. To be sure, while the harms of fentanyl make headlines across this country, other illicit drugs continue to devastate lives, families and communities. Bill C-224 will not only assist with the current opioid crisis; it will also assist in providing needed and timely medical attention to those overdosing on other substances.
While Bill C-224 will remove barriers to seeking medical attention, access to timely treatment is also necessary to have a lasting impact. All too often, lives are saved through medical interventions, only for the same individual to be back on the street suffering from the same addiction and vulnerable to yet another overdose. Bill C-224 will not only increase the ability to access emergency medical treatment, it will also provide the opportunity to engage treatment workers and programs, when available.
The complexities around drug addiction and the illicit drug trade are such that no single discipline has the ability to effectively address the problem. To have meaningful impact on this national crisis, we must adopt a multi-pronged, holistic approach to address both the demand and supply side of the drug equation. To do so requires a comprehensive, multidisciplinary strategy, a strategy that works across the continuum of education, prevention, intervention, harm reduction, treatment and enforcement.
Dr. Nicholas Etches, Alberta Health Services Medical Officer of Health stated, "I agree the police cannot arrest their way out of this.'' He added, "Neither can we, doctors, detox our way out of this.'' Dr. Etches is referring to the need for an effective harm reduction strategy. Harm reduction combined with treatment is critical to reducing demand.
Another important part of this continuum is prevention through education. Treating addictions can be costly and difficult, with varying levels of success. Prevention through education provides the opportunity to get in front of the addiction and remains the most impactful and cost-effective way to prevent those tragedies. Strong public communication, as well as age-appropriate messaging integrated into school curriculums, is critical to getting ahead of this crisis.
While no single piece of legislation will eliminate all tragedies associated with the illicit drug trade, Bill C-224, combined with an effective communication strategy and proper training, will save lives.
Honourable senators, thank you for allowing me to speak with you here today.
The Chair: Thank you. Thank you all. It is very much appreciate it. We'll begin with questions from the deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses for their excellent presentations.
My one question is to Mr. Michael Crystal, who is well known in case law from Newfoundland and Labrador to Ontario, very high-profile cases and a very competent attorney.
My question to you is this, sir: This bill passed unanimously, as you pointed out, in the House of Commons. You point out that there may be some deficiencies in the bill. You admitted that in your presentation to us today. You've listened to my colleagues around the table put forward suggestions that should be made to improve the bill. You've heard it, each member of this committee.
You're advocating that we pass this bill immediately without amendment, but, Mr. Crystal, if you were assured that this bill, upon being amended in this chamber, were to proceed to the House of Commons, where there is unanimous consent on this particular piece of improved legislation; that this would not take a place on the private members' docket at the bottom, as is normally the case, but that there would be unanimous agreement to put this at the top and to have it dealt with immediately, and that that request would be included in our observation, our instruction that we can give to the House of Commons with every piece of legislation — if that were the case, would you not agree that that would be a better outcome for this legislation and that given that fact, you would approve of the amendments being made?
Mr. Crystal: Absolutely. I had the benefit of listening to the first panel. I am surprised that this is not a piece of government legislation, and I feel for the people promoting the bill, that they have to walk this thin line of going before cabinet again and dealing with all members of other parties. I would like to see this bill become a Senate bill. It can become a Senate bill.
This table — I guess I'm repaying your compliment, but I don't mean to do so — is the most important table in this country. I'm very proud to have my son here, because this is where it happens. This is where the Supreme Court of Canada reviews the transcripts of these proceedings when they're determining law, and this is where law is really made and made better.
I say to you, Senator Baker: I call your bet, and I raise it. I say make it a Senate bill. This is too important for the back and forth that sometimes occurs in these situations. It's a simple bill.
I agree with Senator Campbell. I'll just take a minute, but I just want to say "incremental approach.'' I apologize, because in my remarks, I was pushing for an incremental approach, and that's what I meant by "trial balloon,'' but only because we all want to see it move forward.
So I say to you, good on you, Senator Baker, for suggesting that it should go back and be at the top of the list. I say go further and make it a Senate bill. Everyone is here, and everyone stands by it in some way or another. It can be made better, and it ought to be made better.
Senator White: Thank you to the witnesses for being here. Congratulations to Deputy Chief Daroux, who retired recently from the Calgary Police Service.
Senator Baker stole some of my thunder, Mr. Crystal. For clarity here, this bill as written would not include those who are on parole, whose conditions might include being around people who are using drugs or on probation. A lot of people who we expect to call 911 will be those people. It will not include other drugs or other types of offences. It is a very narrow slice. If they truly understand it, they may not call. I think you would agree that a widening of the bill would be helpful if we're truly about saving lives. Mr. Daroux just described half who wouldn't be covered, half of the people who died last year.
Mr. Crystal: Yesterday, I spoke to Jonathan Rudin of Aboriginal Legal Services in Toronto. He was quick to point out that you do have to have the bail conditions, probation conditions and the parole violators.
The comments that I'm going to make will seem to slow down the bill, but I am encouraged by what Senator Baker says and what you've said, Senator White.
It operates on a primary fiction, and that is that the person who gives drugs to another person has engaged in trafficking. To say that that exception does not exist is to turn a blind eye to what trafficking is and potentially confuse jurists who will have to deal with it.
We all know what has to happen with this bill. Laws are off the rack; they're not made to measure. If they're made to measure, they will never work.
Senator White: If I may, a short follow-up. I appreciate that response.
Mr. Crystal: I'm sorry to reduce what we're doing here to tailoring.
Senator White: The second piece is that nothing stops the government, should this be amended, from taking the bill and saying, "It's now government legislation, and we're going to fly it up the flagpole today,'' if they wish.
Senator Joyal: Like they did with fentanyl.
Senator White: Like they did with the fentanyl precursors. They did it themselves.
Mr. Crystal: I get that, but I have spoken with Mr. McKinnon's staff for a very long time on this. They've fought a very noble battle and have put together unanimity, which is not common in the other place. I'm just asking you to consider the realpolitik that will happen when this goes back. If you do think about that and about the battle that Mr. McKinnon has fought and might have to fight in order to get this to become government legislation, I encourage you to think about how that could be lessened if this were to become a Senate bill.
So I say yes, I know there's a consensus here, but let's remove any obstacles and give some thought to sponsoring this bill as a Senate bill.
Senator Jaffer: Thank you to all of you. It's good to hear your opinion, Dr. Levy, and from you, Mr. Daroux.
My friend Senator Baker, who I have the greatest of for, has said "if the government,'' but we have nothing in front of us to say that the government will make this a priority, that they will do the right thing, and when they do, they can better it.
We heard a mother speak about her 17-year-old. I live in a neighbourhood where three deaths happen a day. This is happening now. There is no assurance that the government is going to make this a top bill. In the meantime, don't you think this bill should go through now?
Mr. Crystal: I thought you were addressing me. I don't mean to judge.
Senator Jaffer: I am.
Mr. Crystal: Thank you. I do. As a lawyer, I'm torn, because I agree with Senator Joyal, Senator Baker and Senator White. I know, as a lawyer, about making this bill workable for law enforcement, for defence lawyers, prosecutors, judges, and for former Justice Sinclair. There are deficits here. At the same time, I would like to see this bill go forward. I leave it to you to consider how that be best done.
The Chair: Does anyone else wish to respond to that?
Dr. Levy: Thank you very much for the opportunity to respond and the question.
I am somewhat torn as well. As a citizen and a hobbyist in law, I accept and understand the notion that it can be improved upon. But as a clinician and as a public health specialist, yesterday I asked nurses I work with on the front lines at our harm reduction program what is the hardest thing they do. One of them said to me, "Looking in the eyes of somebody who has lost a friend to an overdose.'' I can tell you that the moment this bill passes, on the street, in this town, there will be nurses having different conversations with people who use drugs.
From my point of view, there is urgency, and perfect is the enemy of good, in my opinion.
Mr. Daroux: I would add that I think it is important that this does move through, and I think if it can be amended and moved through quickly, that's important. Where this really rests is in the ability to communicate to the people that this will truly have an impact. Training in law enforcement can be done, but what it really comes down to is that person sitting with that 17-year-old person who has overdosed. Do they believe that, in fact, they are protected by this? I think that communication around this has to be substantial, but it also has to reach that target population that we're looking at.
Senator McIntyre: Thank you all for your presentations.
I support this bill with or without amendments, so my question is more one of clarification. That said, I'm looking at the definition of overdose in the bill, and I would simply like to have your thoughts on that.
The definition notes that a reasonable person would believe that the situation requires emergency medical or law enforcement assistance. If we look at the circumstances encompassed by this bill, chances are that the individuals on the scene may be impaired by drugs or alcohol. So my question is this: Could the use of the "reasonable person'' standard in the definition of overdose be problematic? Could I have your thoughts on this, please?
Dr. Levy: Thank you. I'm not a lawyer and I don't know how a jurist would look at that conundrum, but from a clinical perspective, it's not that complicated. It's true that we may often experience the false positive, so to speak, where someone, in fact, makes the call, a paramedic shows up on scene and concludes that this isn't an overdose but perhaps a diabetic emergency, for example. But the reasonable, non-medical or non-health trained person could just as easily make that call.
From our point of view, as front-line practitioners, we would have it as part of the differential diagnosis. In short, I think the definition, as it stands, works from a health professional's perspective.
Senator McIntyre: It would not be a problem from a clinical point of view?
Dr. Levy: No.
Mr. Crystal: It's a very good question. The language is about being charged; it's not whether it provides a defence. One wonders where reasonable but mistaken fact fits into this if a person is wrong. From that perspective, I think the precipitating event would be that there would be some sort of urgent circumstance here that someone would be responding to. I don't think they would be held to much higher of a standard.
Senator Sinclair: I asked a question of the first panel concerning the situation of an individual who believes his friend is overdosing, drives him to the hospital and drops him off. Mr. Crystal, would you comment on how you think that might fall into this bill?
Mr. Crystal: Thank you for that question, Senator Sinclair. As I've said, the problem that we're going to run into with exceptions is that the interpretation will be very narrow. I cannot definitively answer the question you raise, as you know.
The question you raise raises the problem that may come before a judge, and there are cases that support this. Remember the section from Sullivan's book: It's not only that courts sometimes suggest that the exceptions be strictly construed, but that alternatively, the person seeking the benefit of the statutory exemption or exception must establish clearly that they come within the terms.
Senator Sinclair: They have the onus.
Mr. Crystal: They have the onus, and your question raises that issue. While we think we may be affording them a protection, we may be giving them a partial protection. This is why I'm torn. Obviously, there are clearly problems with different circumstances.
That's why I say this is really a made-to-measure type of law, because it's all about the phone call. It doesn't really think beyond the phone call — the person who is overdosing and somebody calling 911. It's not equipped to think beyond that. Obviously, that's part of its limitation.
[Translation]
Senator Boisvenu: Dr. Levy, my question is for you. We are about to amend the Criminal Code. Of course, every piece of legislation has to have some kind of impact in terms of results. Some U.S. states have comparable legislation. Do you have any reliable data on the impact this kind of legislation has had in those states, as regards the number of lives that have been saved? Is there any evidence related to this measure?
Dr. Levy: Forgive me, I am trying, but I am more at ease in English.
[English]
The short answer is no, we're not aware of data with respect to lives saved. Even here in Ottawa, we can only really draw assumptions about lives saved from the number of times that the kits are used. Because of the challenges that we've described even with the definition of what an overdose actually is and how hard it is to define that in all circumstances, there really is no way to come up with a definitive answer.
But there are reasonable grounds to believe that lives have been saved, and I'm not sure if everyone was present, but I did mention the Washington study that indicates that law enforcement and prosecutorial duties are not impacted. In that particular study, the conclusion was that they hadn't been significantly impacted and that attitudes to calling for emergency services are definitely improved.
But with respect to your specific question, we don't have that data that I'm aware of.
[Translation]
Senator Boisvenu: Senators Baker and Campbell raised, what I consider, a rather serious problem. As you know, overdoses occur when an individual consumes a cocktail of drugs or alcohol. The bill is fairly restrictive in terms of the types of drugs in relation to which a Good Samaritan would be exempt from charges when trying to help an individual who has overdosed. Would the committee not do well, then, to expand the scope of the bill to include other types of drugs, knowing that victims of overdose are usually under the influence of a number of substances? That would give police officers considerable discretion in laying other types of charges.
Dr. Levy: Thank you for the question.
[English]
Again, from a practitioner's point of view, overdoses are very frequently polypharmacy — cocktails of drugs. In fact, the commonest is alcohol. If only we could get rid of alcohol, or at least too much of it.
Again, I'm an amateur at this piece, but my interpretation is that the protection is afforded if the individual calls for help. The reason for the individual calling for help doesn't really influence the protection. So whatever the nature of the overdose and whatever the cause of the clinical condition that appears to be emergent, my understanding is the protection is there for the individual who makes the call.
If that interpretation is correct, then I wouldn't share the concerns. But others may be better able to speak to the validity of those concerns.
[Translation]
Senator Dupuis: I have a question mainly for you, Dr. Levy, and perhaps for the other two witnesses as well. As I understand it, the definition of the term overdose has two components. The first, which is determined by a doctor, is the physiological event arising from the introduction of a controlled substance into the body of a person that results in a life-threatening situation. The second component, added here, is the condition that a reasonable person would believe the individual in question requires emergency assistance.
In other words, the definition seems to have two parts, two levels, if you will. The first relies on the objective determination of a health professional, and the second relies on the fact that the person who calls for help believes that medical assistance is necessary. As someone who knows nothing about medicine, I assume that, if I were that person, I would not be able to satisfy the second part of that definition whatsoever.
My question for you pertains to the medical definition. Does the first part reflect the fact that any doctor called upon to testify in court could confirm that, yes, the event is consistent with a recognized phenomenon in their field of expertise — that is, medicine — and is indeed an overdose?
[English]
Dr. Levy: We might be overcomplicating the concept of overdose. There is no specific medical definition of an overdose. Essentially, when an individual presents with altered levels of consciousness, one of the possible causes for that situation could be an overdose.
People can overdose on water. Clinically, the presentation will differ depending on what the substance is. Whether in a clinical scenario where one would then bring to bear the biological assessments and use tests to ascertain what is going on and what may be going on — it could be any number of poisonings from toxic substances or it could be different physiological processes totally unrelated — the issue is whether there is an emergency situation where an individual can see that another individual is not able to function.
Between us and our partners, we have about 20,000 service encounters every year with people who use drugs, for needle exchange purposes or other types of interventions on the harm reduction spectrum. Somewhere around 10 per cent of those people are under the age of 20. Some of those people, particularly, are just experimenting. They're with friends, their friends get into trouble and they identify that by the fact that they just can't rouse them. They are sleepy. That might be temporary; they may well become alert again a few minutes later. But we don't want those individuals to be afraid to call 911 in the meantime. It's those people, those suburban teenagers, who are terrified. We hear that they're terrified to make that call.
From my point of view around the two pieces that you say, it's the second piece that is more important to the question at hand: Would that individual recognize that the person they're with likely needs help or may need help and be prepared to make the call?
[Translation]
Senator Dagenais: My question is for Dr. Levy. In your remarks, Dr. Levy, you mentioned that opioid users have a hard time admitting that they take opioids, even when you show them that you are open-minded. I am not sure as to whether you have a sense of how extensive the awareness campaign accompanying the bill should be to convey to those would-be 911 callers how important it is to place the call. It is not enough to simply enact legislation; it is also necessary to reach out to those people to make them understand the importance of calling for help by sending the clear message that they will be exempt from charges if they call 911. People who take opioids do not admit to that fact easily. I would like to hear your thoughts on that.
[English]
Dr. Levy: My colleague Mr. Daroux mentioned that same point. I very much agree with it, thank you. It is indeed how the potential beneficiary of this kind of thoughtful amendment to the act will be made aware of the changes and the implications of those changes.
That's really what we do in local public health. Essentially, it's one of our core businesses. We spend a lot of time thinking about how we make people aware and how we manage to target the right message to the right audience in the right way.
In short, multimedia campaigns help, but at the end of the day, the best way to get a message to an individual is an individualized method. It's very labour-intensive and difficult. We have the advantage at the local level — us in health, our partners in community and social services, and more and more our partners in law enforcement. We spend a lot of time thinking about developing complementary messages and trying to have multidimensional messaging going out through traditional media and vehicles, and social media, but also direct service interactions and making sure that those messages are consistent.
Senator Pratte: As a follow up to this, don't you have a concern that because of the limited scope of the exemption, it cannot be of help to a certain number of people? This communication effort will have limited success because people will learn that some of them will not be protected. Therefore, since in many cases young people are the ones who do not trust the police force, maybe the communication effort will not have that success; they will not trust that they are protected. Therefore, the success will be limited.
Dr. Levy: Thank you again for the opportunity to add to that. I do not have that concern. In fact, the communications that we engage in with the target group for our messaging — we and our other partners — are a much broader message. It's a message about the dangers of using any medication or substance inappropriately. It's a message about options to not use. It's a message about how to recognize problems if they arise. It's a message about what can be done if those problems do arise.
This would be a small added piece that we would build into comprehensive messaging. Perhaps naively, my own perspective would be that we would be able to tack on a message of reassurance when we're having those interactions with people. If that reassurance turned out to be false, then, indeed, your concerns would be well founded. But we wouldn't know that for years to come, and, in the meantime, my unusual optimism would be that our law enforcement partners, our prosecutorial arms and our judicial arms would in fact interpret this in a way that was consistent with the intent and that we wouldn't need to be changing our message down the road because of things not going according to plan.
Senator Batters: Mr. Crystal, you give the best compliments: One of the last times you were here you called me Justice Batters, and today you said — and I think very fittingly — this is the most important table in the country: this is where law is made, and made better. I'm definitely putting that on Twitter later today. Thank you very much for that; I think that's very true.
Listening to the previous panel, you heard some of the suggestions that a few of us made about how this law could potentially be made better. I know that for all of us are trying to make the best law that we can on this and save the most lives we can. I know you said your preference is to probably just pass this now, and it's just a matter of which form, but which particular couple of changes do you think are the most important to make to this very bill?
Mr. Crystal: I agree with Senator Baker that all the schedules should be involved. I agree with my good friend Jonathan Rudin, of Aboriginal Legal Services that parole violators and people on court conditions — and I know other people have said it here today — ought to be included as well.
Look, Senator Batters, the thing about this is that the way this thing has been cast is as an exception bill. When you drill down into this, and that's what we do here, it's not an immunity bill. We're not talking about non-prosecution or that something is not an offence. We're talking about "will not be charged,'' which is problematic because cases that will come before the courts where there is no charge will inevitably result in legal argument, be it charter or what have you.
I think this is the result of it being a private member's bill as opposed to a government bill. Again, I understand where the bill is coming from, but if we're really going to drill down into this and rebuild, then I think we also have to think about whether this is properly an exception bill or if we should be talking about immunity. Are we talking about a defence or are we talking about an exception?
The way the bill will be interpreted will depend on how we cast it. If we cast it as an exception bill, then there will be great scrutiny and it will be interpreted very strictly. If we look at it as a defence or immunity, it will be much larger.
I was thinking about Senator White's comments. We also know there is a centripetal and a centrifugal force here: Centripetally, the bill is exception, so it's going to be narrowly construed, and centrifugally, law enforcement will seek to punish people they believe are guilty of offences. That push/pull is going to really work out in a very complicated way in the courts.
If we're going to build it from the ground up, we have a lot of big questions to ask, but when I listened today to the other panel and when I listened to Mr. McKinnon, whom I have a great deal of respect for, and Mr. Doherty, I saw this as being all about the phone call and a limited situation, and I can understand why there is a need to act on that.
All I can say at the end of the day is, 'tis to be done, 'tis best to be done quickly, and that is why I think someone has to throw their weight behind that bill. It may be the Senate, because it's very hard, I believe, for Mr. McKinnon to go back with a private member's bill and say, "I'm going to get the government on board with that.''
Senator Batters: He is a government MP.
Mr. Crystal: He is a government MP, but he's probably tier 12. Anyway, that's not my business, but I say to you there has to be some heft behind this bill. We all realize it's a very important bill.
Senator Joyal: Dr. Levy, I am looking at the list of drugs under schedules IV and V. In your practice, can you comment on the happenings of overdoses in the use of those barbiturates and drugs listed? The way I see it is they are the ones that are really what I call prescribed medicines. We know the level of consumption by Canadians these days of antidepressants. If you've seen the recent reports, it has skyrocketed. In my opinion, it means that overdoses of Schedule IV and V drugs could multiply significantly in the years to come.
It would be very difficult for a person arriving or being at a scene, since that is where the bill is aimed, to make the judgment to call or not call, based on whether they will be protected or not and what drug the person has consumed.
On the basis of your experience, how can we evaluate the impact of the bill in relation to the reality that you see on a daily basis?
Dr. Levy: My interpretation of the likely applicability of this bill is for non-prescribed medications. Prescribed medications certainly may be taken purposefully or mistakenly in a way that they cause an overdose. Certainly, all of my comments related to unintentional overdose, and some of those unintentional overdoses, increasingly here in Ottawa — about two thirds of the unintentional overdoses — relate to the use of what could be prescribed.
With regard to things like barbiturates, if an individual intentionally or mistakenly overdoses and someone arrives on the scene, it's my interpretation that they would typically not be someone who would be at risk in the circumstances that we're talking about.
The circumstances that we're talking about are where there's been some kind of illicit activity preceding the overdose, and that typically doesn't apply in a situation where an individual overdoses on prescription medication, unless they're using that prescription medication in an inappropriate way.
In short, it's been many years since I have practiced a lot of clinical medicine, but in my experience that scenario is very unusual and wouldn't really be a concern to me.
Senator Joyal: Unless the drug, for instance, had been stolen or trafficked on the black market or any way those drugs on schedules IV and V could have been obtained or trafficked illegally.
Dr. Levy: Absolutely. In that context, I see it.
Senator Joyal: And then they would not be protected?
Dr. Levy: Right. That, I acknowledge, is a limitation. From our point of view, the utility of the bill, were it to pass into law, would be in communicating to our clients, who typically wouldn't fall into that category, that they have protections that they didn't have yesterday.
Senator Omidvar: My question is to Mr. Crystal. I'm struggling between perfect and good. I recognize we live in an imperfect world. I don't believe this bill will become a government bill. It's not in the mandate letter. Do you see a scenario where this bill is passed as is, without amendments, and then followed by a new Senate bill that covers issues of scope and circumstances as you have described them?
Mr. Crystal: Yes, I do, and in my original submissions, which I think you all have a copy of, that's what I was thinking: that it be a trial balloon, we see how it works and, in the meantime, we work to make it better.
The Chair: Gentlemen, thank you all for your very helpful contributions to our deliberations.
Members, your agenda indicates we were planning to do clause-by-clause consideration. Perhaps we didn't anticipate as much discussion as has occurred, a great deal of it on whether or not to amend the legislation, so we're over time.
I just want to explain what we're doing here. There has also been a suggestion that obviously we're going to delay clause-by-clause. We're looking at March 1 to consider clause-by-clause, and also to have Department of Justice officials here so they can respond to any questions or concerns we might have. Are we all in agreement?
Hon. Senators: Agreed.
Senator White: I would suggest that if anyone would like copies of the House of Commons committee discussion, some of the issues we had here were raised the middle of June, 2016, just so everyone understands that this isn't news to most people.
(The committee adjourned.)