Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 38 - Evidence - March 21, 2018
OTTAWA, Wednesday, March 21, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-45, the cannabis act, met this day at 4:16 p.m. to study the subject matter of those elements contained in Parts 1, 2, 8, 9 and 14 of the bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Hello, honourable senators, distinguished guests and members of the public who are following the proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
It is my pleasure to welcome you here this afternoon for our opening study on Bill C-45, with some very specific sections or parts of Bill C-45 that have been identified by the Senate as being the purview of our responsibility. I want to remind you of them. They are Parts 1, 2, 8 and 9 and 14 of the bill. Those parts have been attributed to us because the other parts of the bill have been directed to the other committees that are also responsible for Bill C-45, namely, the Standing Senate Committee on Social Affairs, Science and Technology, among others, and the Standing Senate Committee on Aboriginal Peoples that will review the impact of Bill C-45 on the Aboriginal communities in Canada.
This afternoon, I am pleased to welcome some familiar faces to the committee. I am personally very pleased to welcome Ms. Carole Morency, Director General and Senior General Counsel with the Department of Justice. You are a familiar face to the committee. We also welcome Ms. Diane Labelle and Mr. Paul Saint-Denis,Senior Counsel with the Department of Justice, who were involved in drafting Bill C-45.
It is a pleasure to welcome from Health Canada, Mr. Eric Costen, Director General, Cannabis Legalization and Regulation Secretariat — I was about to say he is the point man at the Department of Justice — and Mr. John Clare, Director, Policy, Legislative and Regulatory Affairs. Welcome, Mr. Clare.
You, of course, know the proceedings around this table. I will invite first Mr. Costen. You have the floor. Senators will engage with you once you have completed your presentation.
Eric Costen, Director General, Cannabis Legalization and Regulation Secretariat, Health Canada: Honourable senators, thank you for the opportunity to appear before you today. As was said, I am the Director General of the Cannabis Legalization and Regulation Secretariat at Health Canada. It is my pleasure to be here with colleagues from the Department of Justice.
In my remarks, I will provide a brief overview of the proposed legislation with a focus on the context and key objectives, provisions, roles and responsibilities, and I will say few words about data collection, monitoring and public education and awareness.
Allow me to begin by describing the current context of cannabis prohibition in Canada.
Canada has some of the highest rates of cannabis use in the world, particularly among youth. According to Statistics Canada, more than one in five Canadians between the ages of 15 and 19 say that they have used cannabis in the last year. This rate is even higher for young adults aged 20 to 24, one in three of whom report using cannabis during the past year.
The illegal market that supplies people with cannabis is estimated at $7 billion annually.
Of course, the science tells us there are harms associated with cannabis use. We know the risks are greater for youth than they are for adults, and the risks increase the younger a person is when they begin to use cannabis and the more often they use it.
Bill C-45, the proposed cannabis act, offers a direct response to the problems I have described: a new, strict regulatory control framework for the production, distribution, and sale of cannabis in Canada, with proportional offences and penalties for those who operate outside the framework.
The government’s objectives are set out in clause 7 of the bill. They are: to protect the health of young persons by restricting their access; to protect young persons and others from inducements to use cannabis; to deter illegal activities through appropriate sanctions and enforcement measures; to provide for the legal production of cannabis to reduce illegal activities; to reduce the burden on the criminal justice system; to allow adults to possess and access regulated, quality-controlled legal cannabis; and to enhance public awareness of the health risks associated with cannabis.
The proposed act follows the recommendations of the Task Force on Cannabis Legalization and Regulation.
In 2016, the task force undertook extensive consultations to hear from Canadians; public health experts; law enforcement; provincial, territorial and municipal governments; Indigenous organizations; U.S. state governments with experience administering cannabis regimes; and from many others.
In shaping their advice, the task force highlighted a number of important principles. In particular, they stressed that the government should take a precautionary approach that is more restrictive at the outset and subject to adjustment over time if the evidence supports it.
They also acknowledged the need to strike an appropriate balance in order to achieve the government’s stated objectives. On the one hand, the task force noted that excessive restrictions could lead to the re-entrenchment of the illegal market, with the associated health and social harms. On the other hand, they stressed that too permissive a system could also lead to increased health and other harms.
In designing the proposed legislation and in considering federal regulations to follow, the government has been guided by this precautionary approach and the importance of achieving a balance, as recommended by the task force.
The proposed act would create strict national rules to control the production, distribution, sale and possession of cannabis in Canada and, ultimately, to better restrict and deter use by young people.
The act would allow adults to legally possess, grow, and purchase limited amounts of cannabis, which they could either purchase through a government-licensed retailer, or grow in limited amounts at home. Adults would be permitted to possess up to 30 grams of dried cannabis in public, or an equivalent amount in other forms.
The bill proposes measures designed to more effectively restrict access to young people. It would be illegal for adults to sell or distribute cannabis to anyone under the age 18. The proposed act would create two new criminal offences, with maximum penalties of 14 years in jail, for distributing or selling cannabis to a young person and using a young person to commit a cannabis-related offence.
It would also prohibit promotion, including through sponsorship and advertising, that could be appealing to young people. These are consistent with the restrictions in place for tobacco.
I will now turn to the roles and the responsibilities of federal, provincial and territorial governments under the proposed act.
The act sets out a shared framework for the control and regulation of cannabis, and this will require ongoing federal, provincial and territorial cooperation.
Under the proposed act, the federal government would be responsible for licensing and regulating the production of cannabis, including setting and enforcing high standards for public health and public safety.
Under their legislative authorities, and consistent with local circumstances, provincial and territorial governments will be able to regulate or limit the distribution and sale of cannabis in their jurisdictions. The proposed act would provide flexibility for provinces and territories to adapt certain rules and enforcement tools. This includes the flexibility to raise the minimum age and to set stricter limits on possession or personal cultivation. They could also set zoning restrictions for cannabis-related businesses and outline specific restrictions on where and how cannabis could be cultivated.
Coordination among the various levels of government is and will continue to be very important. To assist in this process, federal, provincial and territorial Ministers of Health, Justice and Public Safety established a working group of senior officials in the spring of 2016. The group was meant to facilitate consultation, information sharing and collaboration throughout the design and implementation of the new legislation. Senior officials have been meeting every three weeks since then to discuss emerging issues and to coordinate our efforts. This collaboration will continue as we prepare for implementation, should the bill receive Royal Assent.
The provinces and territories have made considerable progress toward being ready for implementation of their retail and distribution systems.
I would like to note that all provinces and territories have introduced legislation or announced the key features of their approach to retail sales.
I would like to say a few words about the engagement of Indigenous people. We understand the value and importance of bringing Indigenous perspectives to bear on our work and we have made concerted efforts to engage with Indigenous people, organizations and governments.
Specifically, Health Canada has established a dedicated outreach capacity to support Indigenous engagement and partnership-building. We have also established a navigator service that is designed to help Indigenous entrepreneurs and companies as applicants through the regulatory licensing process.
In recent months, we have attended and been honoured to present at more than 30 meetings in various First Nations, Inuit and Metis communities across Canada, hearing from leadership, elders, service providers and other experts from across various sectors.
We’re working with Indigenous leaders to ensure that public education and awareness activities are culturally appropriate and that our efforts address the specific interests of their communities.
In partnership, Health Canada and Indigenous Services Canada have provided funding to the Assembly of First Nations and to the Thunderbird Partnership Foundation to support Indigneous engagement around cannabis regulation and legalization. This includes providing financial support for the AFN cannabis task force, which was established to prepare First Nations communities for cannabis legalization and regulation.
I would now like to say a few words on how we responded to two important lessons shared by U.S. states around early and sustained public education, as well as for data collection in order to enable reporting and monitoring.
We’re working to put in place a comprehensive monitoring and data surveillance system in order to assess the impacts of the proposed legislation and to inform appropriate adjustments over time. Our strategy is based on the lessons learned from jurisdictions such as Colorado and Washington, in particular.
In addition, we are establishing a national cannabis tracking system that will monitor inventories and the overall movement of cannabis throughout the supply chain in order to prevent diversion or inversion of cannabis from the illegal market.
The government’s made significant upfront investments in public education and awareness, which are central to the government’s strategy to protect public health and safety, especially when it comes to youth.
In Budget 2018, the government announced an investment of $62.5 million over five years to support the involvement of community-based and Indigenous organizations to promote education among communities around the effects of cannabis use. This funding builds on the $46 million over five years that has already been committed to promote public education, awareness and surveillance activities.
The government has also taken steps to inform and educate the Canadian public, initially targeting youth, young adults and parents, in order to raise awareness of the risks of drug-impaired driving. For example, last November, Public Safety Canada launched the Don’t Drive High national advertising campaign, which will run until March. To date, this campaign has reached over 13 million Canadians.
The public education campaign will next focus on health and safety facts associated with cannabis in order to provide Canadians with the information they need in order to prepare for the legalization and regulation of cannabis.
In closing, Bill C-45 seeks to provide a new, more effective control framework for cannabis — one that can ensure greater protection for young people and that will in time displace the illegal market with a strictly regulated one.
I would now like to turn to my colleague Carole Morency.
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: I will focus my remarks on providing an overview of Bill C-45’s proposed new approach to cannabis offences and how it differs from the existing approach of the Controlled Drugs and Substances Act, or the CDSA.
The bill proposes a new framework that strictly regulates and restricts access to cannabis while sanctioning those that operate outside the confines of this framework.
Section 7 sets out the purposes of the act, and, while all are relevant, I will focus on three in particular, namely, those purposes that seek to deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures; protect young persons; and reduce the burden on the criminal justice system in relation to cannabis.
The bill addresses the first objective of deterring illicit activities through appropriate sanctions and enforcement measures in two ways.
First, for specified less serious offences such as public possession of over 30 but under 50 grams of cannabis, or home cultivation of one or two plants over the permitted four plants, police would have a choice on how to proceed. They could choose the usual summary conviction proceeding leading to a trial, or the issuance of a ticket that carries a $200 fine, a choice that is not currently available under the CDSA.
While maintaining the criminal nature of the offence, this new ticketing option would provide a simpler and more efficient process for minor offences and thereby reduce the burden on the criminal justice system associated with summary conviction proceedings.
The proposed ticketing regime would also lessen the impact of the conviction on the individual by providing that fingerprints shall not be taken for a ticketed offence, the judicial record of that conviction must be kept separate and apart — in other words, not as readily accessible by criminal justice professionals — and the ensuing judicial record of conviction cannot be used to identify that person as someone dealt with under the act.
The second way Bill C-45 deters illicit activities through appropriate sanctions and enforcement measures is to maintain the same comprehensive set of prohibitions that currently exist in the CDSA, but with different penalties, as well as to add some new prohibitions, including a prohibition against the use of a young person in the commission of a cannabis offence.
For example, Bill C-45 maintains existing prohibitions against illicit possession, distribution, sale and production, as well as against importation and exportation unless authorized. Under Bill C-45, the CDSA offence of trafficking would be deconstructed into distribution and selling.
However, unlike the CDSA, Bill C-45 proposes a different offence structure and penalties. For example, under the CDSA, trafficking is an indictable offence punishable by a maximum penalty of life imprisonment and mandatory minimum penalties, or MMPs, of one or two years. Under Bill C-45, selling and distributing would be hybrid offences punishable by a maximum of 14 years’ imprisonment on indictment and 6 months on summary conviction. There would be no MMPs for these or any of the cannabis offences. A similar approach is propsed for the importing and exporting offences.
Some have questioned why Bill C-45 proposes maximum penalties of 14 years when it is legalizing cannabis. To be clear, although Bill C-45 proposes to legalize cannabis in certain circumstances, anything outside of this still remains prohibited. Thus a key objective of the bill is to continue to effectively prohibit not only less serious violations of the permitted conduct but also, for example, serious conduct such as trafficking by organized crime.
The proposed penalties reflect this approach and would give the courts the needed discretion to impose the appropriate sentence in each case.
Like the CDSA, Bill C-45 proposes to retain the authority for a sentencing court to delay sentencing to permit an offender to participate in an approved drug treatment court program.
Bill C-45 seeks to achieve the second main purpose of protecting young persons in three key ways. First, unlike the CDSA, it would be a specific offence to sell or provide any amount of cannabis, licit or illicit, to a young person.
Second, as I just mentioned, the bill proposes to prohibit the use of a young person in the commission of any cannabis offence. This offence, as well as the offences that are directed at young persons, such as selling to a young person, carry higher penalties — fourteen years imprisonment on indictment, 18 months on summary conviction, and higher fines of up to $15,000.
Third, a young person who commits a cannabis offence — for example, possession of over 5 grams of cannabis — would be subject to the Youth Criminal Justice Act, which is based on principles of rehabilitation and reintegration.
Unlike the CDSA, Bill C-45 would not criminalize young persons who possess or distribute very small amounts of cannabis. While the bill strictly prohibits giving or selling cannabis to a youth, the reality is that even in today’s fully criminalized regime, Canadian youth are among the world’s top users. Bill C-45 therefore recognizes that it’s very possible that some youth will still be able to access cannabis and, where they possess small amounts of 5 grams or less of dried cannabis or its equivalent, they would not be criminalized.
This recognizes that interactions with the criminal justice system — particularly for small amounts — can have lasting negative impacts on youth.
Instead, provinces and territories could create provincial offences for possession amounts below 5 grams for young persons, thereby providing authority to police to seize the cannabis from young persons while not subjecting them to the harsh consequences of being found guilty of a criminal offence. The committee may be aware that such prohibitions have been proposed in all recently introduced provincial cannabis bills and passed by Ontario’s Bill 174. Other jurisdictions have publicly announced that they plan to do the same.
Finally, Bill C-45 also protects youth through restrictions on promotion, packaging, labelling and display of cannabis.
The third key purpose that the prohibition framework of Bill C-45 seeks to address is that of reducing the burden on the criminal justice system.
First, legalizing and strictly regulating cannabis is expected to prevent a significant number of cases from entering the criminal justice system. Statistics Canada reports that in 2016 approximately 23,000 cannabis-related charges were laid, with 76 per cent of them being related to cannabis possession. Legalizing would be expected to significantly reduce this number.
The second way that Bill C-45 seeks to reduce the burden on the criminal justice system is the ticketing scheme that I have just described. Again, this is another innovation that can be expected to divert cases out of the formal summary conviction process leading to trial.
In closing, I would remind the committee that the Minister of Justice has tabled a Charter statement on Bill C-45 in both houses of Parliament. Thank you.
Senator Dupuis: My first question is for the Health Canada officials. I want to thank them for being here today.
I am trying to understand how the planned awareness or public information campaign for youth will be structured. What struck me in the document entitled Legalizing and strictly regulating cannabis, is that there is no mention of the fact that a young person between 12 and 17 years of age may legally possess 5 grams or less of cannabis. I thought it was fairly well done in terms of general information, but an important piece of information is left out, in my opinion.
I am trying to understand how you will structure your public information campaign because we are moving away from a regime of medical cannabis use, where the message for a number of years has been that there are benefits for children as well who have serious illnesses and can get some relief from cannabis. On the other hand, the message is that cannabis is a dangerous product, but that there is no problem if you stay within the limit.
I think we understood your message that there is a high rate of cannabis use among youth at this time. So I am trying to see how you will structure this awareness campaign in a way that reaches young people.
Mr. Costen: It’s a very good question, and it underscores, in many ways, the complexity of the situation that we face. You raised many important points. I’ll do my best to touch on all of them.
I will begin with your point that the environment where we’re communicating to young people, in particular, about cannabis is full of very different messages, right now, if you’re a young person. So, of course, there are all sorts of messages that reinforce certain myths about cannabis — that it’s harmless or that it’s far less harmful than other substances, that, in fact, it will enhance certain elements of your life.
Of course, as you’ve just mentioned, there is also information, increasingly, about cannabis and its potential therapeutic use, which some people start to confuse. If something is good for you for therapeutic reasons, it must, therefore, be good for you for non-therapeutic reasons, which, of course, is bad logic. We understand there are pharmaceutical medicines out there that are very good for us when we are sick, but we wouldn’t mistake them for being good for us just for fun.
Taking apart all of these messages is really at the centre of what we’re trying to do in developing a public education campaign — it started a year ago, and I’ll explain to you a few of the things that we did a year ago — that starts to demystify or demythologize, some of the information by putting out facts about cannabis, about the health effects of using cannabis, to try to counteract some of the mythology and present it in a way that is credible and that can be trusted by young people directly, by their parents and by other adults in their lives — teachers, coaches and these sorts of things. The campaign that we are in the process of launching really keeps those sorts of ideas in mind.
The other thing, of course, is that communicating with young people in 2018 is very different than it was when I was a young person. The platforms that we use are very much directed at communicating with young people where they actually are right now, which is a host of social media platforms, from Facebook to Twitter and all those sorts of things. It’s not necessarily relying on old forms of TV commercial and radio ads and newspaper ads and these sorts of things.
A social media campaign is actually where we began last March. It was really around promoting a conversation, based on facts, between parents and their kids about questions they have around cannabis use and other drug use. So there was a fairly extensive social media campaign that was launched through the spring, which was then supported by a number of strategic partnerships. The one that I maybe would mention is with a group called Drug Free Kids Canada, which is an excellent non-governmental organization that created a talk kit for parents. In partnership with them, we have been able to disseminate 180,000 copies of this talk kit. They have been able on their own to promote it significantly.
We’re now moving, actually almost as we speak, to a campaign that will look to focus specifically on getting some more of the health facts into the hands of not only young people, but also young adults, all with a view to kind of coming back to your original question which is trying to make what is a very confusing environment right now for people less confusing around hearing from experts and health professionals about what the science tells us about risks and doing it in a dispassionate, objective, neutral fashion, communicating that information in a way that will actually reach the audiences we’re trying to reach and, above all, trying to be neutral and fair for the presentation. That’s a bit of a long answer, but you asked.
On the questions of the 5 grams, I don’t know if Diane or Carol want to articulate anything on that point.
Senator Dupuis: Before you answer, Ms. Morency, I would like to know, based on what the Health Canada official just said, whether the Department of Justice is planning to prohibit all possession. If not, why not?
In other words, would the introduction of 5 grams or less prevent the other provinces from adopting different regulations in this regard?
Ms. Morency: I would start by noting that, under Bill C-45, no one who is not an adult will have the ability to legally possess cannabis. So to sell, to give, or to distribute to a young person is always going to be illegal.
The challenge has been though, as the task force also acknowledged, that the criminal justice system is a heavy hammer. If you’re looking at a very small amount — in this case, as Bill C-45 proposes, 5 grams or less, that’s a very small amount relative to what an adult would be allowed to possess in public, 30 grams of the drug. The idea there is to say: Is engaging the criminal justice system to deal with that small amount the most effective way to deal with that, or are there other ways that society can address this? We recognize that youth now are big users, even in a fully prohibited regime.
Provinces can use the authority that they have now to address that concern. It’s in a different context and without the same consequences of the full criminal justice system. Once you cross that line in terms of that threshold that Bill C-45 is proposing, then Bill C-45 addresses it in a criminal law context.
Senator Eaton: Just to clarify, to go back to Senator Dupuis’ question, 5 grams is about four tokes. So, in other words, if I’m a high school student — I’m 16 — I have four tokes in my pocket, which is under 5 grams. So you just don’t take it away from me, but I’m allowed to possess it, right? Or is that the wording? The wording is that I’m allowed to have less than 5, or I’m allowed to have zero grams? This is what I don’t understand.
Paul Saint-Denis, Senior Counsel, Department of Justice Canada: The Act proposes to provide for the possession of 5 grams or less. So a youth, under 18, would be able to possess 5 grams or less.
Senator Eaton: I could go to high school with my four cigarettes in my pocket.
Mr. Saint-Denis: What we have done though — and we have done this through our conversations with the provinces and if you have looked at the legislation that the provinces are proposing or have indeed adopted up to date on cannabis, they have all uniformly prohibited any possession of cannabis by youth.
Our intention was to ensure that, as Ms. Morency pointed out, for the smaller quantities, we did not have to resort to the criminal justice system. We would let the provinces use their less harsh approach to dealing with those small quantities.
Senator Eaton: I’m not a lawyer, but, if you had less than 5 grams, couldn’t you just decriminalize? Don’t police have the discretion to say, “Hey, Johnny, okay, throw those out?” To me, if I read that or a high school student read that, that’s implicitly saying you can have less than five in your pocket. So you have the right. It’s not against the law.
You can say this in committee, “Oh, it’s implicit; we didn’t want to do this.” But, if you’re a high school student reading this, this is what you’re going to take away. I don’t want to argue with you because, I’m sorry, I have to go. But thank you for your answer.
I’ll let Professor Gold over there take up the questioning.
Senator Gold: Sure, I’ll be happy to.
Senator Eaton: Mr. Costen, you were talking about protecting youth. I can see distribution, branding, no packaging — all that stuff. Terrific. But then, I can grow four plants in my back garden. I have children. Hello? How are you protecting youth? My neighbour next door can grow four plants. The neighbour down the street and so on.
Are we going to have marijuana police — people walking around, sniffing the air? How are we protecting our youth?
Mr. Costen: The question of allowing the cultivation of four plants was one of the central questions put to the task force, as you likely know. Having had the opportunity to participate in a lot of their work, I can assure you this was a central point that was debated in many rooms.
The question about balance and recognizing that we are imagining a regime where you’ll have a commodity that will be legal for purchase in certain types of environments and certain types of stores —
Senator Eaton: It’s one thing if I have to go to a store, give my identification, pay cash and do all the things that I’ll probably have to do to buy it, but it’s quite another if the neighbour’s kids can reach over the fence, or walk into my garden casually, and take a couple of branches off my marijuana plant.
Mr. Costen: Right. Maybe I’ll speed up my answer.
There are two points that became quite central interms of where we understand the task force advice came from.
As we mentioned in our remarks, one is that a design principle is that if you’re a local or provincial government, you can add additional restrictions. We have already seen, as an example, the Government of New Brunswick take the basic structure that we propose in Bill C-45 and add to that. Where it comes to home cultivation, they have put in place around specific restrictions around the storage of cannabis in the home.
It was partly with a view to understanding that it’s up to the appropriate order of government to put in those local restrictions. Some talked about a potential registry, where a local community may be interested in having some type of licensing process. All of these types of local decisions were thought to be best placed with that level.
The second piece is regarding the exposure. Again, I’m speaking from the task force’s advice, and it was really with an acknowledgment that in every household, there are things that harm people. Parents and responsible adults take the necessary precautions to guard those things, if they have young kids in their home. The thought was that the same would be true if an adult decides to grow a couple of plants of marijuana and they have young kids: They will take the appropriate measures, just like they would for household cleaners, alcohol or a propane tank.
Senator Boisvenu: I understand that members of the public are not all chemists or budding cooks — if you will pardon the expression — but in Schedule 3 of the bill, in the table of equivalent amounts, it says that 1 gram of dried cannabis is equivalent to 5 grams of fresh cannabis, or to 70 grams of non-solids containing cannabis, and so forth. Can you explain that for the average person? How can members of the public figure that out? I know it is simple if you are talking about a joint, but what is this product?
John Clare, Director, Policy, Legislative and Regulatory Affairs, Health Canada: The classes of cannabis that are set out here really reflect the reality that cannabis as we think of it, as a dried herbal product off a plant that is smoked, is just one aspect of how cannabis is consumed. In fact, cannabis can be transformed into a whole range of different products that —
Senator Boisvenu: Give me an example of 350 grams of a non-solid substance containing cannabis. Would it be chocolate cake?
Mr. Clare: An example of something that would be available for legal sale, should the bill receive Royal Assent, would be cannabis oil. This is the extracted active compounds of the cannabis plant — whether it’s THC for its psychotropic effect or other cannibinoids, such as CBD, which is recognized to have more potential health benefits — and it is put in a suspension of oil so that the user can ingest the cannabis, rather than smoke it.
Senator Boisvenu: So we are talking about muffins, for instance.
Mr. Clare: It would be like a gel capsule with oil in it, or a dropper. That would be a non-solid containing cannabis.
Senator Boisvenu: What is the current market value of those products?
Mr. Clare: It’s through the existing medical access program.
Senator Boisvenu: Yes, because they are the only ones who can sell them right now.
Mr. Clare: Absolutely. It’s available —
Senator Boisvenu: What is their value?
Mr. Clare: It depends on how strong the product is. A product that has more THC will tend to be more expensive. A product in a more innovative form will be more expensive. There is quite a variety.
Senator Boisvenu: Will consumers be able to produce their own cannabis oil from the plants they grow at home?
Mr. Costen: Yes, with a pretty significant caveat. Could you buy dried cannabis and put it inside olive oil to create an infused oil? Absolutely. Yes, that’s fine.
Senator Boisvenu: They will be able to?
Mr. Costen: Yes, they will.
Can they use dangerous flammable products that are sometimes used to do the extraction? No.
Senator Boisvenu: Yes, but let’s say for instance that everyone in a condo building with 100 units had four cannabis plants — for a total of 1,600 marijuana plants that could produce oil —, do we realize that this could give rise to some relative worrisome events in terms of public safety?
Mr. Costen: Ten per cent of adult Canadians report using cannabis in a given year. So, I think a scenario where you have —
Senator Boisvenu: But 40 per cent say they intend to consume it if it is legal.
Senator Pratte: I want to go back to the youth sections. My concern is the different treatment between youth and adults, and the situation created by ticketable offences. I’m wondering if, for youth, because it’s the officer’s discretion whether charges would be laid or extrajudicial measures would be used, we could have situations where charges are laid and therefore a youth has possession of 25 grams. It might be a second offence. Charges are laid and the youth therefore has a criminal record, and an adult maybe is found with 45 grams and ends up with fine of $200 and criminal record. It’s not really a criminal record; I’m not sure what it is, but it’s not. There would be a difference in treatment that would be very significant, or is that theoretical?
Ms. Morency: I would start by saying that if an adult is convicted of a ticketable offence, then they are receiving a criminal conviction and they will have a criminal record as a result of that. If a young person commits an offence under Bill C-45, they would be dealt with under the Youth Criminal Justice Act. As the committee will know, under the act, police officers have a fair bit of discretion from doing nothing, to warning, to a formal caution, to even directing a young person to a community service or program that may be more appropriate.
I would agree: There is a difference in treatment.
I would suggest that Bill C-45 tries to acknowledge the unique circumstances that a young person is in and that it permits a response that is more consistent with the principles that underlie the Youth Criminal Justice Act in terms of promoting rehabilitation and reintegration.
We didn’t have a chance to respond to the earlier question that was posed, but, just to be clear, if a young person is possessing 2 grams of dried cannabis, for example, and shows up at school, under the approach of Bill C-45 — and let’s say in Ontario, because Ontario’s bill has already passed — a police officer who attends and finds that young person with two joints in their pocket would be authorized to seize the two joints and to proceed to deal with that young person under provincial authority offence to deal with it, again in a less harsh way than Bill C-45 proposes.
But at the end of the day, it’s really important that Bill C-45 is saying no adult under any circumstance should ever give, sell or distribute any cannabis to a young person. The only way a young person is going to get it is that either someone else has committed an offence, and there is a way that Bill C-45 would deal with that, or they’re getting it through an illicit process. In either case, the police would be able to deal with that.
Senator Pratte: That’s a very good answer to someone else’s question, but I want to go back to my question which you answered in part.
Still, it is the officer’s discretion and quite a number of youths are charged under the Youth Criminal Justice Act. So it is a possibility that they would be charged. Adults under the ticketable offences do get a criminal record and, as you may explain, it is a different kind of criminal record because it can’t be used by employers, for instance.
There would be a difference. The criminal record for youth, although it can be erased after two or three years or something like that, would have a huge impact on youth in this case.
The ticketable offence would not have that same kind of impact.
Ms. Morency: If dealt with under the Youth Criminal Justice Act, if a formal caution is issued, that is tracked. Records for young persons, and even cautions, are not accessible to the public or all criminal justice professionals in the way that CPIC may be, right? So there are still measures built into the Youth Criminal Justice Act that seek to protect the young person in that situation.
The Chair: Other comments? Ms. Labelle?
Diane Labelle, General Counsel, Department of Justice Canada: To answer your question, you also have to remember that there will be provincial legislation on drug possession by young persons. A police officer who comes across a young person in possession of 2 grams can apply the provincial legislation to seize the drugs or impose an appropriate fine.
If the young person has more than 5 grams, once again, I think the police officer will have the choice to apply the provincial legislation or the Youth Criminal Justice Act.
Senator Gold: I’m going to follow up on Senator Eaton’s questions. She was kind enough, I suppose, to call me Professor Gold, and I guess I am still a professor of constitutional law.
I have a question and a comment. My colleagues know I support this bill. There are aspects of it that I don’t understand. I think you explained very well the rationale for not wanting to criminalize a youth who has 5 grams or less in their possession, so that rationale is clear to me.
Could you give me the rationale that doesn’t necessarily rely upon homemade beer and craft wine for the ability to grow up to four plants?
My colleagues will understand that is part of the medical regime that was a result of court decisions because of inadequate access to other legal sources of medical cannabis, but now that it will be available to adults, what is the rationale for four plants when it poses some security issues — perhaps not on the same level as every condo — and, frankly, problems for landlords and neighbours because of nuisance and the like?
Mr. Costen: I’ll do my best to acknowledge that this was through the deliberations of the task force. This was a question that came up in every room and elicited strong opinions on both sides. I will give two observations to try to answer your question about the rationale.
The first gets to an acknowledgement that I’m sure all of you know, given the close attention you’ve provided to this issue already. Millions of Canadians use cannabis and, in the so-called cannabis culture, there are many who enjoy growing plants themselves for no other reason than just growing it. It gives them pleasure. The task force heard this.
You mentioned the medical program, which is an important observation.
The second piece was around an acknowledgement of a context where there is a legal supply chain and where you have a sufficient supply and a robust regulated industry through commercial cultivation, commercial products and their sale in stores, there is the likelihood of having very pervasive situations where you have home cultivation that becomes problematic, like we see in examples today. The problematic examples we see today are not of two or three plants. They’re of hundreds or thousands of plants that take over a home and lead to very dangerous activities around jerry-rigging hydro wires, and mould and mildew, and all these things.
The balance of the rationale was that in a world where you have a regulated supply chain, the demand for this thing will be significantly diminished. It will be a minority of individuals who will be growing, but that minority made compelling arguments that, in a world where there is legal access, some minimal provision to allow them to continue to grow would not present a significant risk to public health and safety.
Senator Gold: One of the things I think you explained very well with regard to the regime that you introduced was that it left room for not only provincial governments but, through the provincial governments, for local municipalities to adjust the law and, in fact, create greater restrictions in recognition of their own particular circumstances and their own sense of where these complicated policy options should lie. You’ve done that with the plant situation as well, as you well explained.
For me as a constitutional lawyer from Quebec but who lived in Vancouver and Toronto, I have this deep respect for federalism. I think the point that has not been underlined enough in this regime is how well, which is not always the case, this legislation respects the balance of power between the federal and provincial jurisdictions and that it properly addresses federal concerns about criminality and health. It also recognizes that the provinces, municipalities and communities, with their own particular values, have the right to have their say there, too.
In that regard, although we properly must focus on the federal aspects, I would have asked the same question Senator Eaton asked about making it no possession at all or make it a ticketable offence. It would satisfy many of my colleagues who find a certain incoherence in this, but if we look at a federal point of view, it’s federalism and coherence at its best. I think we have a responsibility as parliamentarians to take one step back and ask what the actual landscape will look like at the end of the day.
When it does, it looks as if young people are not going to be allowed to go to school with five or seven or nine joints — I guess it depends on how fat they are — in their pocket. Nor will they necessarily be allowed to grow any plants in their houses or condos, or, if they are, there might be fencing and other security measures that a municipality will enforce and police.
So, in that regard, I say chapeau for respect for our division of powers, and that’s something that I wanted to put on the record. Thank you very much.
Mr. Costen: One detail, because it may be of interest to the table. There are a number of examples now where we’re seeing provinces amend their landlord-tenant acts in order to safeguard some of the risks that were identified by the senator earlier and to underscore the point that you’ve made, whereby you see local governments adjusting the rules to account for the local realities that they encounter.
Senator McIntyre: Thank you all for your presentations. My question is for Health Canada. For 25 years, I acted as chairperson of the New Brunswick Criminal Code Review Board. There is a board in every province and territory.
In a nutshell, the board deals with individuals who are suffering from a mental disorder and commit a criminal act. Under the law, they’re charged and, in most cases, are found either unfit to stand trial or not criminally responsible on account of mental disorder. They are either remanded in a hospital setting or in a jail setting with a psychiatric ward, or released in a community, pending a disposition hearing by the board.
The board has three choices. It can grant either an absolute discharge or a conditional discharge, or order detention in a hospital setting. The difference between an absolute discharge as opposed to a conditional discharge in a hospital setting revolves around the issue of dangerousness.
The point I’m driving at is that 90 per cent of the cases that I heard, as chairperson of the review board, were related to the usage of marijuana.
That said, obviously, the individuals falling under the jurisdiction of the board were vulnerable to the negative mental health effects of cannabis. As noted by the Government of Canada in the health information that it provides, individuals may experience anxiety or even psychotic symptoms after using cannabis, particularly for inexperienced users or those with pre-existing mental health problems. Now, the information notes that THC may increase such symptoms.
My question is this: How will Bill C-45 manage the negative mental health impacts of cannabis? Please explain that to me.
Mr. Costen: I’ll do my best. It’s another big, complicated question.
That cannabis has health risks is a clearly understood fact and the reality is that, with millions of people using cannabis and acquiring it in a relatively unfettered manner, the health risks are largely exacerbated. By contemplating a legal and regulated scheme, it actually creates a new platform for the government to be able to communicate to consumers, to use your example, in a much more direct way about the risks that they’re undertaking through this behaviour.
I might point to an example of something like health warning messages. You can imagine that, in a regulated environment, much as you do on a pack of cigarettes, the government is able to communicate directly to the person consuming in order to make them aware of the risks that they’re taking in consuming. That’s not something that we’re able to do in a environment where cannabis is unregulated, is illegal.
When we, as the health regulator, imagine a world of regulated cannabis products and imagine what a package and a label will look like, we imagine that as a really important opportunity to be able to convey some of the exact messages that you’ve just underscored. So, for instance, for people who have a family history of psychosis or underlying mental health disorders, using cannabis can exacerbate that. If there’s a clear risk associated, that kind of information is not available to the consumer today.
I don’t want to go on unnecessarily, but you’ll see specifically in our health effects public education campaign specific messages around mental health, to use that example, but also with respect to addiction, use by women when they’re pregnant or breastfeeding, and a number of other key areas where, as the health regulator, we’re able now to speak in a much more direct way, deploying a whole variety of different tools to speak to the consumer.
Senator McIntyre: You’re talking about an awareness campaign, but I’ll push this a little further. Is the information concerning the effects of THC too scientific for a public awareness campaign? How much consensus is there within the scientific community with regard to the health effects of marijuana and with regard to ways to manage the negative mental health effects of that drug?
Mr. Costen: The question of the science that exists is also a good one. The scientific evidence based around harms, in particular, is fairly strong. Over the decades, where we’ve seen advancements in research and science has predominantly actually been geared toward an understanding of the health risks of cannabis use. Where the science is more incomplete is with respect to the question earlier around its medical application.
I think, with regard to your question about how confident, as the health department, we are in conveying messages that are actually based on science, when it comes to health risks, I think we feel very confident in being able to do that.
Senator Batters: I, first of all, want to point out that, as the Senate Legal and Constitutional Affairs Committee commences its study of the Bill C-45, the Trudeau government’s signature marijuana legalization bill, we don’t have one minister in front of us. We don’t even have any deputy ministers in front of us.
To the health officials, in this bill, and despite the advice of the Canadian Psychiatric Association and the Canadian Medical Association, the federal government has set the minimum age for access to marijuana at 18. I would like you to find out for me, as soon as possible, and provide to this committee how many 18-year-olds attend high schools in Canada because, with Bill C-45, this government will be effectively legally allowing marijuana to enter high schools. Could you find that information out for me and provide it to the committee? Yes? Thank you.
Okay. Also, Mr. Costen, in your opening statement you said that Bill C-45 would prohibit advertising that would be appealing to young people.
Yesterday, your health department released what the image on your marijuana packaging would look like. Here it is, everybody.
When I saw that symbol, I immediately thought, “That really looks like the Team Canada hockey logo,” so I googled it. Here are the first two images that came up in my search of Team Canada hockey. First of all, this, from the 2017 World Cup of Hockey, and the second image I found. I guess you could have just put, instead of “Canada” here, “cannabis.” When I look at these, they are the exact same colours. They look very similar.
I just wonder if you can explain to me, Mr. Costen, given all of that, when you see that imagery and when we just had Team Canada’s Olympic hockey team playing last month, with the entire country cheering for them, how can you actually stick to what you said in that opening statement by saying that Bill C-45 would prohibit advertising that would be appealing to young people when you see your very own imagery?
Mr. Costen: Maybe what I can do is talk a little bit about how we arrived at that image, about how we arrived at the THC symbol.
Senator Batters: Do you consider that to be unappealing to young people when you see what I just showed you?
Mr. Costen: When we focus-tested the image with young people, it was specifically with a view to understanding how children and young people would react when they see it. We focus-tested a number of different colours, shapes and images. At the end, the focus testing results, what we heard from very young kids, from adolescents and from their parents was that red is a universal colour of stop. An octagon is a stop sign, and especially young children, or even adolescents with low literacy, interpreted that as a very clear sign of something that they shouldn’t go near.
The cannabis leaf and the words THC, the parents reported to us that this presents an opportunity to have a conversation with their teenagers to explain what THC and the product is.
The process that we followed was really informed by what we learned through the focus groups would be most effective in stopping kids from using something that they shouldn’t use and equally for adults.
Senator Batters: This marijuana packaging image that you’ve developed is markedly different from, for example, what the Ontario Liberal government came out with for their Ontario Cannabis Store. That was black and white, nondescript, three letters, but it somehow took them $650,000 to develop it. With that in mind, that was just a recent news story, I’m wondering how much the Trudeau government spent to develop this logo and packaging, who got the contract, was it sole-sourced or was it a competitive bid?
Mr. Costen: That’s information I would have to get back to you on. I don’t have that off the top of my head.
Senator Batters: As soon as possible, please. Do you know an approximate dollar figure?
Mr. Costen: The dollar figure was about $60,000 for the focus groups. We did it in three cities across the country.
Senator Batters: Who developed that logo? Did you hire an advertising agency?
Mr. Costen: I don’t have those details off the top of my head.
Senator Batters: So the $60,000 was just focus groups. That wasn’t anything to do with developing the logo.
Mr. Costen: The images were developed in-house.
Senator Batters: Developed by Health Canada?
Mr. Costen: By Health Canada, yes.
Senator Batters: I would like all the information on that, please. Thank you.
Senator Sinclair: Let’s get back to the bill. I wanted to ask if you might tell me whether you did any research prior to the development of the legislation, Bill C-45 particularly, around the question of prosecutions before the bill and potential prosecutions after the bill. Because the intention of the legislation, as I understand it — at least one of the intentions initially — was to recognize or address the fact that prosecutions for drug possession under the bill were largely having a negative impact upon youth, particularly, but society generally.
As a judge, when I presided, I found that simple possession offences largely got dealt with through either police not charging initially or prosecutors agreeing to conditional or absolute discharges. Do you have any track record of keeping or gathering information on that point? Do we know how many prosecutions, for example, took place under the former legislation?
Mr. Saint-Denis: What we know was that there were some 22,000 or so cannabis offences, and I can’t recall if those were just possession or total cannabis offences. Of the charges that were laid, I’m not aware of the number of actual prosecutions that resulted from that. We can certainly find out for you, if you wish.
Senator Sinclair: It would be useful to know if the problem that the bill purports to address is being addressed by the legislation. In other words, the issue, as I understood it initially, was that the bill was intended to address the prosecution and potential criminalization of young people, particularly going forward, in loading them up with a criminal record when, in fact, it appears to me that courts have been trying to do that, in any event, and I’m not sure what the numbers are. If you could find out, I’d appreciate that.
Mr. Saint-Denis: We can find that out, but just to point out that reducing the impact on the criminal justice system was one of the objectives of the bill. Recognizing the numbers involved, we believe that by the mere fact of legalizing 30 grams or less for possession, for instance, would have a tremendous reduction impact on possession cases. The combination of recognizing the situation that exists on the ground right now and the numbers of illicit acts that are being committed in respect of cannabis and the consequence on the criminal justice system, on the one hand, and wanting to reduce that by legalizing was certainly one of the objectives of the bill, yes.
Senator Carignan: My question pertains to Schedule 3, the amount of cannabis concentrate equivalent to 0.25 grams. I was curious about concentrate and came across Newsweed, which explains how to make concentrate.
That is where I saw shatter. It is hard like cold caramel and it can be extracted using various techniques, not necessarily with butane. I did an online search for “shatter” and found an article that says the Hells Angels are very interested in shatter because it can contain up to 90 per cent THC and you can vape it.
Your equivalency table for concentrate says it is equivalent to 0.25 grams, so it would not be a crime to possess the equivalent of 120 grams of shatter, which is 90 per cent THC. Am I mistaken? If so, in what way and why?
Mr. Clare: The way that the table works in calculating the equivalency, so 0.25 grams of a concentrate is equivalent to 1 gram of dried cannabis. It would be one fourth of 30 grams.
Senator Carignan: My mistake is that it is not the weight and that it is equivalent to 1 gram. But I could still have a concentrate with 90 per cent THC and the equivalent of nearly 8 grams of 90 per cent THC? Is that right?
Mr. Clare: You’re putting me on the spot to make sure my math is right.
Senator Carignan: You are here to be put on the spot, by the way, because the minister has decided not to come.
Mr. Clare: I believe it is 7.5 grams. But the second part of your question is around the concentrate itself and what would be permissible in terms of a THC content or a potency of a concentrate.
Essentially a concentrate is any product that would use some mechanical or chemical means to increase the amount of THC beyond what you would find naturally in the plant; so anything above 30 per cent. In that context, hashish is a very common concentrate. It’s a solid concentrate.
Senator Carignan: Yes, but the concentrate could be more than that.
Mr. Clare: That’s right. The range would go anywhere from above 30 per cent to as much as 90 per cent.
Senator Carignan: Do you think it makes sense to say that hashish, which is up to 20 per cent THC, is equivalent to shatter, which is up to 90 per cent THC? Hashish can have up to 20 per cent THC, while shatter can have up to 90 per cent.
Mr. Clare: That’s precisely why concentrates will not be available for sale immediately upon the coming into force of the cannabis act. Because in the regulations — and I talked about the cannabis oil earlier — the regulations that will be enacted under the cannabis act will set a potency limit, a standard, for cannabis oil that will say that cannabis oil cannot contain more than 3 per cent THC. It is envisioned that regulations that would enable or would precede concentrates being available for sale would contain similar —
Senator Carignan: So, that means the government intends to impose a limit on THC for concentrates, but none for cannabis at this time.
Mr. Clare: When it comes to the cannabis classes that are available for sale in July, the regulations that are forthcoming, that the government just consulted on, do establish standards and limits for the amount of THC depending on the product form. It is envisioned that the regulations that would come with concentrates and other forms of cannabis would contain similar controls, yes.
Senator Carignan: Perfect.
I have another question about medical cannabis. I have a medical cannabis product here called “Rockstar.” This product is sold by a company licensed to produce medical cannabis. It has 22.8 per cent THC and 0.1 per cent CBD. Will you make a distinction between medical cannabis and recreational cannabis? How can you license the sale of medical cannabis called Rockstar that has 0.1 per cent CBD?
Mr. Costen: Questions of THC and CBD, in the context of medical use of cannabis, is a hotly debated topic. While many people will say that it’s CBD only that has potential therapeutic value, the reality is that there is emerging science that shows that it’s not only CBD, it’s THC and, frankly, many of the other compounds found in the plant.
Part of understanding this is recognizing that when you consume cannabis by smoking it, it goes directly into your system and you feel the effects almost instantaneously. So, when someone uses a very strong THC, like a cannabis with a lot of THC, they need very little of it to feel the effects that they are looking to achieve. In certain medical contexts, there are those who will use very small amounts of stronger cannabis rather than using greater quantities of cannabis.
Senator Carignan: Yes, I know that.
That is not what my question is about. I am very familiar with the cannabis file. How can the government license an organization to say that Rockstar is medical cannabis with 22.8 per cent THC and 0.1 per cent CBD, while your department is saying that medical cannabis is not licensed, that it is not a recognized product?
Mr. Costen: The reason that Health Canada has the program that you’re describing, that we have the regulations and we have had them for 17 years to authorize medical cannabis, is largely as a result of a series of court decisions which have found that the government must provide a legal mechanism to provide those who have the support of their doctor to provide cannabis. There is a long history of decisions that have defined it and why we are in the situation we’re in today. I would say that through the medical cannabis regulations that exist today, a scenario where someone is using cannabis of any strength would be doing it under the care and supervision of a physician.
I want to ask my colleague to talk about the names and the changes that we’re imagining to the types of promotion that companies would be restricted from doing in the future, if that’s of interest.
Mr. Clare: That is one of the big changes that would be provided by Bill C-45, Division 2 of Part 1 of the legislation, which deals with the non-criminal offences. The first one deals with promotion. The bill is, as Mr. Costen said during his opening remarks, really modelled on similar provisions for tobacco and any sort of promotion, brand, brand element, logo, names, strain name that is appealing to a young person, is some sort of endorsement, a celebrity endorsement, that evokes a particular lifestyle, a way of living, adventure, risk-taking, all of that, would be strictly prohibited by Bill C-45 and isn’t a tool that currently exists under the CDSA.
Senator Dupuis: My question is for the justice department. I think we understand your explanation regarding 5 grams. The federal government wants to let each province exercise its judgment and enact legislation that differs from what is in Bill C-45. As to home cultivation, some provinces say they want to prohibit it. Does Justice Canada share that view? We allow home cultivation, but can the provinces decide to prohibit it or change the number of plants allowed?
Ms. Labelle: I have prepared my answer in English. I will then repeat it in French. I want to take the time to answer you properly, because this is a concern to many of you.
The Chair: And provincial ministers.
Ms. Labelle: Correct.
I would like to set out the legislative roles the federal government and the provinces and territories have in legalizing, strictly regulating and restricting access to cannabis. We all understand that health is not a single matter that is attributed to the federal level or to the provincial level.
Parliament, relying on the criminal law head of power, can enact legislation for purposes of public health and safety. That is what Bill C-45 is doing.
A province or territory can enact legislation in the area of health, relying on its own legislative powers for its own purposes — property and civil rights, for example, matters of a local or private nature in the province. We have five or six provinces that have now put legislation forward.
The bill before you sets out a multifaceted approach in order to legalize and strictly regulate cannabis and achieve the purposes set out in clause 7 of the bill that my colleagues have already mentioned, which would provide for an adult to lawfully possess and access cannabis from an illicit source while protecting young people and curtailing illicit activities with cannabis.
To that end, as we have explained with the 5 grams, the bill sets out the extent to which the criminal law would apply. The bill would create a number of prohibitions, as you have heard, on possession, age of possession, cultivation, distribution and so on.
The bill would also set out the circumstances under which the criminal law would not apply. Now I am getting to the provincial role.
For example, in instances where a person has obtained a licence to produce cannabis, the criminal law doesn’t apply to that. It is regulated as an authorized activity.
Also, the criminal law would not apply with respect to the possession, distribution and sale of cannabis in the circumstances set out in clause 69. That is the provision provinces can turn to and, as long as their legislation meets the four minimal standard conditions, their legislation comes into effect. This approach presents a broad scope for provinces and territories to regulate activities with cannabis in their jurisdiction, such as place of consumption, for example.
The details of provincial or territorial legislation would not be subject to review or approval at the federal level. This is not something like the payday loans where it takes an instrument by the Governor-in-Council for it to come into effect. This would just automatically occur on legislation being enacted by the province or territory.
In addition to this opening for the provinces and territories in clause 69, they can exercise in their own legislative powers — and this comes more closely to your question — they can establish more restrictive limits on age of possession, possession limits in public and stricter cultivation limits.
Where a province or territory enacts stricter limits for possession, age or cultivation, the details of that legislation are not subject to review or approval at the federal level.
Whether the provincial or territorial legislation meets the minimal federal standards set out in clause 69, or whether it conflicts with provisions in a provincial or federal legislation is going to be a question for a court to examine. In a given set of facts, if an individual were to challenge a federal or provincial law on cannabis, we could expect the court to look at whether the federal and provincial provisions at issue could coexist.
For these reasons, the federal government continues to work in close collaboration with provincial and territorial governments to prepare for the implementation of the new framework. Discussions are ongoing, and we are trying to make sure that every jurisdiction has the information they need to coordinate with federal, provincial and territorial governments.
It’s anticipated that federal, provincial and territorial legislation would work together to form a coherent set of rules covering activities with cannabis. But as I said, in the end, the final determination would be made by a court, not the federal government.
Senator Dupuis: If I understand the message from Justice Canada today, Justice Canada is not saying that if a province enacts different legislation, the federal government will challenge the provincial legislation.
Ms. Labelle: That is correct.
Senator Dupuis: I have an ancillary question. I would like to know whether Justice Canada has examined the recommendation from the task force on cannabis legalization that called for an amendment to rule out the possibility that, with regard to medical marijuana, designated persons could grow it themselves or have it grown by a designated person. Has Justice Canada examined this recommendation and why is Justice Canada not following through on it?
Ms. Labelle: As I remember the task force report, and Mr. Costen can provide further details, on balance, the recommendation was to evaluate the medical regime and to come back to it in a few years. I think that is what the federal government chose to do.
Senator Dupuis: My question comes directly from the task force on legalization report. Perhaps Mr. Costen can provide some details. I would like to know Justice Canada’s position because the recommendation was very clear: review it in order to eliminate it because of the possible involvement of organized crime. I would like to know if Justice Canada has examined it and why it eliminated this recommendation.
Ms. Labelle: The federal government’s approach is to review this again in a few years. I think it was even recommended in the House of Commons that the bill be reviewed three years after coming into force. It would be reasonable to expect that the medical regime would also be reviewed at that time. From a legal point of view, it is difficult to evaluate at this time the unexpected consequences of immediately eliminating the designation for cultivation by persons other than the individual. There would be unexpected consequences, because we do not know how the market will evolve in a few years from now.
The need for cultivation by designated persons might be greatly reduced once people have access to other sources of cannabis. Another factor, which is not insignificant, is that people will in certain cases be able to grow up to four plants. That might also eliminate the need for someone else to grow plants for an individual and the need for the medical regime. So the answer includes various aspects. There are a number of circumstances that we have to evaluate, and we do not think this is the right time to evaluate them. The issue is still before the courts in various litigation files or prosecutions. We want to move forward with the bill first and see how circumstances change or how the situation of individuals evolves.
Senator Dupuis: Did I understand correctly that there are matters before the courts right now regarding the designated persons regime that make it inappropriate to take action at this time, or that there has been a decision in this regard?
Ms. Labelle: There are cases being prosecuted and litigation that challenges the medical cannabis regime, perhaps not the aspect of designated persons, but the regime itself. For the time being, it is preferable to simply continue with the regime we have.
Senator Boisvenu: I would like to talk about the fines. In this bill, it seems that you copied from the Tobacco Act, but with lower fines. Let me give you an example. The maximum fine for an organization exporting cannabis illegally is $100,000, whereas for tobacco, the fine can be up to $300,000 for acts that are not as serious, such as adding flavours, for which the fine be up to $300,000. I am trying to understand the dissuasive effect of this measure, since the Tobacco Act is stricter than the cannabis act.
The possession of more than four plants is another issue. Today, marijuana plants can grow to eight feet. Their value on the market is approximately $6 to $7 a gram, and that can total $1,000. However, the offence for having more than the permitted number of plants is $200. Where is the deterrence in that? If I have five plants, my fifth plant can bring in $500, $600 or $700, but the fine is $200. I’m trying to see the rationale for imposing such minor fines if you compare tobacco to a drug, marijuana, when it comes to having more than the legal number of plants, which is four.
Mr. Saint-Denis: Let’s begin with the issue of cannabis products being exported by an organization. The $100,000 fine is for an offence prosecuted by summary conviction.
Senator Boisvenu: It’s the same for tobacco; it’s $300,000.
Mr. Saint-Denis: The law is different, on the one hand —
Senator Boisvenu: I understand, but if you’re going to copy a law, why not make things equal: $300,000 for cannabis, and $300,000 for tobacco?
Mr. Saint-Denis: Yes, except that in the case of the Tobacco Act, the system is different. In Part 1 of the bill, it is a complete system, independent and criminal. What we wanted to do was develop a consistent system of penalties that would stand on its own in a logical way.
Senator Boisvenu: But between you and me, it is more or less logical.
Mr. Saint-Denis: Well, between you and me, to me it’s very logical.
Senator Boisvenu: Well to me, it isn’t.
Let’s talk about the number of plants. Let us say I have five plants, one of which is illegal. I want to sell the product on the market, where I can make up to $600 or $700, but the fine will be $200. Explain the logic behind that to me.
Mr. Saint-Denis: You have to understand what we had tabled in the very beginning regarding the plants individuals could grow. They could reach a metre. We had not anticipated that the House of Commons was going to eliminate the height limit.
The $200 fine was for a relatively short plant.
Senator Boisvenu: It’s not going to be short anymore; it’s going to be tall.
Mr. Saint-Denis: It won’t be short anymore. You have to know that in the beginning, the police officer will have the discretion to determine whether he wants to issue a ticket or not. If he is dealing with a 12-foot-high plant and if there are more than four plants, he may choose to do more than issue a ticket. He may choose to proceed with a summary conviction.
Senator Boisvenu: We are complicating things.
Mr. Saint-Denis: Senator, we are giving them choices.
Senator Boisvenu: I know, but these are complex choices. Thank you.
Senator Pratte: One of the aspects of Bill C-45 that surprised me was the absence of a limit on dry cannabis in private households. There is a possession limit when you are in a public space and a limit on the number of plants that you can cultivate at home, but there is no limit to the quantity of dry cannabis that you can have in a household. So theoretically you could have four plants, but have one kilo of dried cannabis and that wouldn’t be an offence.
I’m struck by the fact that in many cases you were inspired by what the states of Colorado, Washington and others have done. In most of those states, they do have a limit, and I can’t remember the exact wording but it usually comes to what is produced by the plants. Is there any reason why you decided not to have similar limits for dried cannabis in a private household?
Mr. Costen: I think a few of us might try to answer this. Again, with so many of these questions it takes us back to the task force and the consultations they led. You’re right, they did give close consideration to the U.S. experience. Some U.S. states have an expressed indoor limit. I believe that in the state of Oregon, for instance, the public limit is one ounce and in private it’s eight ounces. In other jurisdictions, they haven’t.
The advice that the government received from the task force was in large part predicated on the practicalities of enforcement and then it actually gets to an earlier conversation we were having when we imagine people converting cannabis into different forms and the ease of being able to comply with a limit that would be imposed. So if you buy 20 grams of dried cannabis and you infuse some olive oil or you create some other food products, at a certain point it becomes practically very difficult to keep track of the total quantities that you have now found yourself in possession of.
I think that, combined with the practical realities of enforcing what is done in the home, led to a position which was that the important piece here is to create possession limits when people are in public to really discourage the large-scale movement of cannabis out of doors. What is in the home is one thing; what moves outside of the house is another.
Ms. Morency: I would add that during the appearance of the ministers and Parliamentary Secretary Blair in the Senate sitting as a Committee of the Whole, I believe the issue was raised there as well. Mr. Blair also spoke to that, because I think the concern is or the assumption may be that the more you have on hand in private residence, perhaps the more likely that is an indicia of a trafficking offence.
I think the response that he provided in the Senate may be of assistance to you in the sense that police will look at more than just the quantity of the product in place. They may look for other indicia about records and things that may point, as well, to signs of trafficking if that’s the concern.
Of course, somebody could be trafficking at a smaller amount than that, and the challenge also, as my colleague has said, with the restriction removed on the height of plants and the inability to know the yield from a typical plant, it might depend on how green a person’s thumb is and a number of factors.
I think it’s a number of factors that influenced some of the choices made or reflected in the bill there.
Ultimately, in the situation that there is a concern about whether this individual, who has such a large amount on hand in the home, is trafficking, I think police are well placed, as they are now, to look for all of the evidence to try to make the case. Is this a case of trafficking, as an example?
Senator Pratte: Thank you.
Senator McIntyre: My comment is addressed to the Department of Justice. I note that certain offences in Bill C-45 apply to organizations. For certain offences, the organization may be prosecuted, indicted, or it will be dealt with under a summary procedure. For other offences, only a summary procedure penalty is mentioned, whereas these same offences can sometimes be prosecuted by indictment when individuals are involved.
Why are the organizations exempt from indictment for offences that can be prosecuted by indictment when individuals commit them? Would it be possible to prosecute the individuals who head up the organizations, as well as the organizations themselves?
Ms. Morency: As the question notes, the bill proposes offences that target different players accused in different ways. Organizations are treated differently. The fines and the penalties that are imposed are different. They can be a party to an offence if it’s committed by an individual. It could be a business entity. Individuals who commit any of the offences are targeted. If they are selling, for example, contrary to the act, to a young person, it’s a different offence as well.
But in the context of organizations, they are treated differently in the sense of enabling the provisions to apply in appropriate circumstances. It could be an organization; it could be an individual.
Senator McIntyre: Why are organizations not faced with the possibility of indictment for offences which could be indictable if they were individuals? That seems to be mixed up here a little bit. We’re tougher on individuals, but we seem to be kinder towards organizations.
Mr. Saint-Denis: If you have a specific offence in mind, I wouldn’t mind hearing of it. But to answer in a broader way, as you know, we cannot imprison organizations. So there is no question, of course, of having a maximum term of imprisonment for organizations.
What we do is we typically provide for up to $100,000 of a maximum fine for an offence by an organization prosecuted by way of summary conviction. If it’s prosecuted by way of an indictment, though, it’s at the discretion of the judge, so there is no limit to the amount of a fine that the court can impose on the organization.
Senator McIntyre: If prosecuted by indictment.
Mr. Saint-Denis: If prosecuted by indictment. I’m not familiar with any offences here for which an organization cannot be prosecuted by way of an indictment.
In one or two instances, we do refer to the prosecution of persons, but the persons, in this case, cover both individuals and organizations. We refer to the definition of persons and that covers both of those possibilities.
The second thing that you asked was if — I think that’s what you were asking — we prosecuted an organization, can we prosecute individuals within the organization? The answer is yes, you can. You can prosecute the organization as an entity, and it is also possible to prosecute individuals within that organization that have committed a similar offence.
Senator McIntyre: I think the $100,000 you are talking about relates to an organization that is prohibited from possessing cannabis.
Mr. Saint-Denis: No, actually, if you look at, for instance, the offence of importing or exporting on summary conviction, it’s $100,000 for summary conviction offence and a no-limit fine if prosecuted by way of indictment.
Ms. Labelle: May I make some clarifications?
Senator McIntyre: Yes, but quickly, because my time is limited.
Ms. Labelle: Bill C-45 is much more nuanced than the current regime. In the case of exports and imports, if things are not done in compliance with the permit, section 44 contains serious penalties. It could be a criminal prosecution, or, if activities did not comply with the regulations and the permit that was issued, section 44 contains penalties that can reach $5 million or imprisonment, or, on a summary conviction, a fine of $250,000 or a prison term, once again.
Senator McIntyre: I would like to direct your attention to paragraph 52(b) of the bill, which has to do with the accused’s judicial record. Can you explain what this judicial record consists of?
Also, would a person who is convicted of an offence that is described as a ticketable offence, or who pleads guilty to one, have a criminal record?
Mr. Saint-Denis: A criminal record is different from a judicial record. The judicial court record is a court file. The consequences of the decisions made by the court are recorded in that file and it is the judicial file. As for the criminal record, we don’t really have a definition.
For the vast majority of people, I think that a criminal record is the record to be found in the RCMP computerized system based on fingerprints. However, it can also be something else, such as the file kept by the local police in a small village where an individual was charged. It can be a number of things.
The ticketable offences included here eliminate the possibility of fingerprinting the individual to whom you are issuing a ticket. And so that eliminates the possibility of having a criminal record, with fingerprints. I don’t know if that will be sufficient, because we certainly won’t eliminate all possibilities of having a record, but the one that is most often recognized as being a criminal record will continue to be recognized as such.
As for the judicial or court record, it will contain a record of the conviction, if there is one.
Senator Carignan: My question concerns the number of plants allowed in a dwelling. Bill C-45 amends the definition of “dwelling-house” and includes the adjacent lot. I have received several requests for information from owners of rental buildings, one of them in Sherbrooke, who rents his units to students. He was worried about this bill.
I explained to him that technically, each apartment may contain four plants; each person can own four plants. This gentleman owns a 24-unit rental building so in principle, there could be 96 cannabis plants being grown in his building. I also told him that if his tenants have access to a community garden, technically they could also produce 96 plants in that garden.
Did I give him the proper information? In a 24-unit building, may each occupant, each couple or each apartment be allowed to grow four plants?
Mr. Saint-Denis: The rule for the cultivation of plants is four per dwelling, regardless of the number of people who live there. It isn’t four plants per person per dwelling.
Senator Carignan: I understand. Each apartment.
Mr. Saint-Denis: It would be 24 times four, at most, if 100 per cent of the people who live in that building were growing four plants.
Senator Carignan: So, there could be 96 plants. So I was correct. The building owner was nervous, and I can see why.
Mr. Saint-Denis: There could not, however, be four plants inside and also four plants outside.
Senator Carignan: No. The owner I spoke to is thinking of proposing a community garden to his tenants in order to prevent issues with mold and humidity in his rental units. So theoretically, there could be 96 plants in the garden outside his building.
Mr. Saint-Denis: I am going to add a few more clarifications. With regard to rental buildings and condominiums, it’s possible that the province may adopt some laws.
Senator Carignan: Don’t assume you know the provinces’ intentions, since you don’t get along with them. Let’s say a province does nothing; for instance, the Province of Quebec forbids this at this time. I told the owner he was lucky to be in Quebec. However, Ontario decided not to legislate on this, so talk to me about his neighbour in Ontario.
Mr. Saint-Denis: There are also agreements between the owner of a building and the tenants. You can prohibit certain activities in a building; you can forbid, for instance, the presence of dogs or the use of tobacco.
Senator Carignan: I sit on the board of a condominium corporation. We tried to forbid dogs; we are in court now.
Senator Dupuis: If I may, what would the situation be if these were service animals, or a companion dog recommended by a physician?
Senator Carignan: What I mean is that unless the owner finds some way of prohibiting it, as things stand, the owner could wind up with 96 cannabis plants in his community garden.
Mr. Saint-Denis: If the owner does not issue a prohibition with regard to the community garden, yes. It’s an interesting question, because I don’t know to what extent you can create a community garden and allow each resident of the building to grow four plants. If it really is a community garden, it’s possible that it would be interpreted as being a garden belonging to the rental building, and so you’d only be entitled to four plants altogether.
Senator Carignan: That is one interpretation. It’s the lawyer who is speaking, who is trying it out.
Mr. Saint-Denis: Well, we are from the Department of Justice, aren’t we?
Senator Carignan: There is a Court of Appeal judgment concerning the City of Saint-Eustache. It was prohibited. Counsellor Goldwater represented the defence and one of my colleagues represented the City of Saint-Eustache.
Senator Batters: In response to Senator Dupuis’ question that she asked a while ago, it came through the translation, so it may not be perfect. I wrote down that she asked: If a provincial government legislates differently than the federal government, that is allowed. Madam Labelle, you responded, yes, that would be fine. However, when the Quebec provincial government recently indicated that it didn’t want to allow any homegrown plants, the justice minister seemed clear in her view that Quebec couldn’t impose that type of restriction. She said “there are limits” to the restrictions the provinces can pose on homegrown marijuana.
A CBC article quoted her as saying:
Where there are other pieces of legislation or proposed pieces of legislation that would seek to frustrate the purposes [of the federal legislation], then there are concerns there.
But isn’t one of the stated purposes of Bill C-45 supposed to be to protect kids? That seems to be what the provincial government is trying to do with this particular provision they want to pass.
Now there might be a lawsuit between two levels of government, the federal and Quebec provincial government. So much for the federalism of those earlier ideals that Senator Gold earlier espoused.
Which is it, Ms. Labelle? Is Quebec allowed to prohibit the growing of marijuana plants in each household or not?
Ms. Labelle: What I’d indicated was around whether there were a challenge by an individual. I didn’t indicate that the federal government was interested in litigating. If there is a challenge by an individual, in circumstances and depending on the set of facts, it can be expected that a court of law will look to see if the provincial legislation and the federal legislation can coexist. A court will look to see if there is a direct conflict, or it will also look to see if there is a frustration of the federal purpose.
I believe what there has been reference to is frustrating the federal purpose. But, again, that would be a determination to be made by a court of law.
Senator Batters: The justice minister seemed to indicate that she would think that was frustrating what she refers to as “stated purposes.” A provincial government imposing that type of restriction, which seems like it should be the type of restriction a provincial government should be allowed to do, you are saying that the federal government would not bring a lawsuit based on that?
Ms. Labelle: I don’t have any indication that the federal government would be so inclined. However, it can be in the context of an individual that challenges the law. There are different ways litigation can arise. It could be in the context of a prosecution, for example. That’s where the federal purposes and the provincial purposes of their legislation would then be assessed by a court to see if they can coexist.
Senator Batters: Also, can Canadians legally grow four marijuana plants at home right after Bill C-45 is passed, before the retail sales are ready to go during your government’s implementation period? Also, can Canadians make edible marijuana at home right after Bill C-45 is passed, before retail sales are ready to go during the government’s implementation period?
Mr. Clare: I can answer that simply. The coming into force of the legislation is envisioned to happen all at the same time. The ability to purchase cannabis legally from a licensed retail store would come into force on the same day as your ability to possess it and your ability to produce it at home.
Senator Batters: It’s more like September or something like that when not only retail stores would be open but also people, even in the intervening period, are not waiting for stores to open, but they still cannot legally grow it at home and they still cannot make edible marijuana products before that coming into force date, which could be early fall?
Mr. Clare: The way it’s envisioned is the legislation would all come into force at the same time, because access to a legal supply of cannabis will only be available once the whole regime comes into force.
Senator Batters: So you’re answering my question “yes.”
Mr. Clare: Yes.
Senator Gold: It’s more of a comment than a question, but I will ask you to comment on my comment, if you don’t mind. I’m learning the rules of this place.
It’s in the nature of federalism and the existence of two levels of government, sovereign within their own jurisdiction, that there will be potentially be conflicts. Certainly individuals and lawyers serving them will exploit overlaps in laws. I take your point, though, and it’s important that those who are watching and those who are concerned about this law understand that the federal bill before us contemplates the existence of provincial laws. That will go a major step toward influencing a court when they determine whether there is not simply an operational conflict but a frustration of purpose.
The other comment is that some of the discussion around this table, respectfully, strikes me as rather abstract. We’re posing questions as if there will be no provincial legislation and as if there is no interaction between landlords and their potential tenants.
It seems to me that in a democracy such as ours, we should have confidence, both in individuals and in communities, when they are faced with a problem. It would be a problem for me, if I either owned, rented or lived in a 24-unit building with 24 times four plants, either in my front garden or whatever, to take the steps, as citizens, to lobby their municipalities or their provinces for necessary changes. In other words, on day one, a province may not have taken the step to ban home cultivation, assuming that’s what one would want to do.
But I am confident in our fellow citizens and governments that over time, if problems did emerge, they would be addressed. As parliamentarians, while we have the exclusive responsibility to focus on the legislation here, we shouldn’t lose sight of the terrain and the practical roll out of this, at least as I’m seeing it. It seems to be addressing the real-life, practical and concrete problems.
Some of the concerns expressed seem fairly theoretical and abstract in light of what we already see happening on the ground. Would you agree?
Ms. Morency: I think we would all agree that the questions have been really good today. They raise very complex issues and I think, certainly as officials working to support the government on Bill C-45, that has been the reality. When senators heard from the chair and the vice-chair of the task force, they spoke to the complexity of the task they had in terms of going forward and engaging with Canadians, stakeholders, professionals and the international community in developing a set of recommendations to do something we haven’t done in Canada.
So, yes, the questions are all important. Getting the balance right is also important, as is providing a range of opportunities so that local governments and provinces can work together with the federal scheme to have a harmonious approach.
But recognize that Bill C-45 is dealing with criminal law and regulation. Provinces have authority over other aspects under the division of powers. We have been before this committee recently on the impaired driving bill, Bill C-46. The committee will know that the Criminal Code provides a very comprehensive regime to address the criminal law implications of impaired driving. Similarly, provinces under their highway traffic act legislation, can and do have laws in place to make their roads safe as well. The two work together in a harmonious way.
Are there challenges? Of course there are challenges. But I think my colleague was trying to explain what the test is that a court considers and applies if there is to be an issue on some of these things.
I’m also confident — and as has been said — for the last two years, at the officials level, the ministerial level and the deputy ministerial level, we have been engaged significantly on all of these very complex issues. So the dialogue is continuing and I’m sure we’re going to continue to have more questions.
Senator Dupuis: In clause 211 of the bill, I would like someone to explain what this passage means: “Part XII.1 of the act is repealed.” That section of the Criminal Code pertains to “Instruments and Literature for illicit drug use.” However, in the cannabis act, only cannabis is mentioned, whereas that section of the Criminal Code refers to all illicit drugs.
Could you explain to me what is being repealed and why?
Mr. Saint-Denis: The provision in Part XII.1 of the code deals with instruments and literature.
With regard to literature, that provision has already been challenged before the courts and was found to be unconstitutional. And so we can set aside that provision as being ineffective and unenforceable.
As for the instruments — and I remember this because I had the great pleasure of working on the member’s bill that created this part — the intention was to target cannabis accessories, particularly. The bill now has provisions that discuss accessories. There are provisions controlling the sale, promotion and visibility of accessories. And so we thought it no longer necessary to maintain that provision in Part XII.1 of the code.
However, it must be said that that provision of the code did not only target cannabis, but also other substances. The fact is that there are very few other substances for which stores carry accessories. There were syringes, but they were excluded in the definition of an instrument. That said, once again, we thought that there would not be any consequences if we eliminated that part of the code.
Senator Boisvenu: I’m going to make a brief comment following Senator Gold’s intervention about theoretical problems. If I grow a 10-foot cannabis plant and I’m given a $200 fine, but I sell my product for $1,000, that’s very interesting.
My question is addressed to Health Canada officials. We know that the medical community has spoken out often about the age at which the use of marijuana should be considered legal. Is there one medical organization in Canada that has recommended that the consumption of marijuana be permitted as of 18?
Mr. Costen: You likely will recall that the task force received over 30,000 submissions, and so to be able to recall —
Senator Boisvenu: There are about ten medical associations in Canada. Have any of them suggested that the consumption of marijuana be made legal for persons of 18 years of age?
Mr. Costen: This may be something we may need to come back to you on to verify, but the Canadian Pediatric Society issued a statement in support of the proposed age, but that’s something we can certainly verify with the committee.
The Chair: We would appreciate receiving an answer on that.
Senator Carignan: When we received your respective ministers in the plenary committee, I compared this to the class action suits of the victims of tobacco against cigarette manufacturers. In that context, I asked the ministers if they had sought and obtained legal opinions as to the risk of class action suits being brought against the Government of Canada for having put in place a system it does not know the consequences of, regarding those who are going to produce cannabis, and also for those who may distribute it, such as the Crown corporations and distribution networks. Their silence meant “no.”
I am putting the question to you again. Today, a few weeks later, have you requested legal opinions on this potential government responsibility? If so, may we obtain copies of those legal opinions? If not, why not?
Ms. Labelle: As you will understand, that information is protected by confidentiality. We cannot disclose whether we have requested legal opinions. I can however say that the Department of Justice has assessed the legal risks of the bill from several different angles.
We spoke of the fact that the Minister of Justice tabled a statement on the charter. We also tabled an explanation of the bill that sets out various elements. The bill has thus been evaluated in keeping with several rules imposed on the Minister of Justice, either in compliance with the charter or in compliance with the Human Rights Act.
Senator Carignan: I understand that you are invoking confidentiality to say that you cannot tell me if you requested an opinion or not, and that you cannot disclose its content if you did.
Ms. Labelle: I can tell you that we carried out several evaluations at several levels concerning several aspects.
I think that Mr. Costen can complete my answer by explaining how he goes about warning people about the risks you are raising.
Senator Carignan: But I understand from your answer that you cannot answer me, and you are invoking confidentiality to avoid answering me.
Ms. Labelle: That is correct.
Senator Carignan: Thank you. I will put the same question to Health Canada.
Mr. Costen: I don’t want to repeat information that I’ve already shared with the committee, but the department is very seized with the need to be able to provide information to people who use cannabis, people who might think about using cannabis, and people who don’t want to use cannabis and want to protect people from using cannabis with fact-based information about the consequences of their decisions.
Senator Carignan: I will stop you right now. The state must apply the precautionary principle, including regarding laws pertaining to health, when consumer products are being marketed. I’m not talking about information or prevention; I’m talking about authorizing a product as such. It’s more than that.
I understand that you have a duty to inform. However, the government is authorizing a product and it does not know the scientific or medical consequences of it.
My question is simple: have you requested a legal opinion regarding the state’s responsibility, the responsibility of Health Canada, if there were to be class action lawsuits brought by people who are adversely affected or receive some diagnosis related to the consumption of cannabis?
Ms. Labelle: Mr. Costen is not authorized to breach confidentiality by disclosing this.
Senator Carignan: No, but he can tell me that.
Ms. Labelle: He cannot disclose confidential information as to whether a legal opinion was requested or not.
Senator Carignan: But he can do what you are doing; he can say that he cannot reply because this information is confidential.
Mr. Costen: I will defer to the response my colleague has provided to the question.
Ms. Labelle: To go back to the regulation of hazardous products, that is what the federal government does in several regards. So even if a product proves to be dangerous, there are regulations that exist to allow its use. I’m thinking of nuclear power, for instance. We know that it is very dangerous, but with good regulation, you can mitigate several risks.
We also have the Hazardous Products Act. Some very dangerous products are transported, and there again we regulate, since they can be useful to Canadians.
Senator Carignan: So cannabis is useful for Canadians; is that what you are saying?
Mr. Costen: There are other examples that make the point. Think of tobacco control. There is a substance that is clearly harmful to Canadians and yet, as a health regulator, our duty is to minimize those harms to the greatest extent possible and protect public health through a number of regulatory safeguards.
That’s actually a useful framework for thinking about what we’re talking about today, which is that it’s not a system that looks to condone use. It certainly doesn’t look to promote use. It looks to minimize the harms associated with use by bringing to bear regulatory safeguards that will achieve that more than the absence of those regulatory safeguards. I think of tobacco as an example of a product that is clearly not good for Canadians, yet Canadians benefit from the strict regulation of that product.
The Chair: If I may, before I have the pleasure to thank you on behalf of my colleagues, I would like to come back to this issue of overlapping provincial and federal jurisdictions, because, of course, it is an issue that is certainly within the competence of the Justice Department.
As you are aware, the Quebec Minister responsible for Canadian Relations, Jean-Marc Fournier, has written to the Minister of Justice in an open letter that has been published in the Huffington Post on February 23, and I want to read the paragraph where I want to question you specifically. The minister writes:
There is no doubt ... that the provinces pursue the same health and public safety objectives as the federal level, and that in so doing, they can also regulate the production of cannabis in homes by authorizing a number of plants that are equal or inferior. [...] Quebec, like Manitoba, in fact, is proposing, given its own legislative jurisdiction, a framework for the culture of cannabis which authorizes it in places other than dwellings.
I want to pay very specific attention to the following:
It is regrettable that members of the federal government are putting forward different interpretations of this matter, as this may create confusion and lead to court challenges that will be useless and costly for consumers.
Madam Labelle, my first question is: Is it the intention of the minister to answer soon the letter of the Minister responsible for Canadian Relations so that we know officially the position of the department to clear the uncertainty? I say, with all respect for the Minister of Justice, that the Minister of Justice raised it herself when she qualifies the capacity of a province to adopt legislation in relation to the possibility of cultivating four plants in a dwelling.
Ms. Labelle: As I mentioned, the possibility of the frustrating the federal legislative purposes is there. However, I have no indication that the federal government wishes to take any kind of action. This will be something that will be looked at later down the road by the courts.
As to when the minister will respond, I don’t have any knowledge of that.
The Chair: But would it not be possible to recognize simply in the legislation that the federal purpose, because those are the magical words, is satisfied if a province legislates the defence of the cultivation of four plants in any personal dwelling?
Ms. Labelle: I think the Bill C-45 before you presents a very fine and thought-out balance in terms of the purposes it tries to achieve: lawful access by adults to illicit supply. How that will play itself out in each province I think will vary and individual circumstances will vary.
Therefore, I think a province proceeds based on its own understanding and analysis of the law, and we all hope that in the end we achieve the same objectives and can find a coherent set of rules to work with.
The Chair: There is an uncertainty in the bill. If you take clause 69(1) — do you have the bill in front of you? Turn to clause 69(1), at page 40, Part IV. I will read it with you:
A person may possess, sell or distribute cannabis if the person is authorized to sell cannabis under a provincial Act that contains the legislative measures referred to in subsection (3).
So, if you go to subclause 69(3), it deals only with the selling of cannabis and not with the possession or the distribution.
It seems to me if you want to be clear in the statement that you read to us, which was written, and I understand because you want to be very clear on the understanding that we have to understand from your position, the possession is not covered. Since the cultivation of four plants is essentially possession, and not for selling or distributing, there is an uncertainty on behalf of a province to adopt legislation that would ban the possession of four plants in a dwelling.
Don’t you realize that the drafting of subclause 69(1) might, in fact, entertain the possibility of a challenge on the basis that it’s not covered by the legislative measures that are recognized as being possible for a province under subclause 69(3)?
Ms. Labelle: The purpose of clause 69 is to exempt from the application of the criminal law, as I was explaining earlier, for regimes that provinces would like to set up for the distribution and retail sale of cannabis. That’s the main purpose of clause 69.
Where provinces can also enact legislation relies on the double aspect doctrine, so to speak, where each level of government can enact legislation that covers the same matter but for their own purposes. When it comes to adding restrictions on cultivation or possession, that is the matter for the provinces to consider and to proceed with based on their own legal analysis to establish what those limits will be.
The same thing can happen with respect to the promotion provisions. If a province senses that they can add something to the restrictions on promotion or labelling and packaging, they also have the authority to do that, much like they do under the Tobacco Act.
So the double aspect doctrine comes into play in many areas of the legislation, and we spoke of only two today. One is clause 69, which allows that opening for retail systems to be established by provinces, and the other ones are how the prohibitions are written where it states how far the criminal law applies and does not apply.
The Chair: In other words, if I read your intention, if a province adopts legislation, as we have heard through a question from either Senator Dupuis or Senator Eaton, to ban the possession of 5 grams for any person under the age of 18, as some provinces are contemplating, a person could go to court and challenge that legislation on the basis that it is beyond the federal purpose and it is depriving that person of a right that the bill recognizes, as much as if a province banned the cultivation of four plants while the bill allows it, the same argument can be made that that person is frustrated from a right that the federal legislation recognizes.
That’s why I’m trying to bring the two purposes together in a way of a saving clause that would allow a province to ban the possession for a person under the age of 18 as much as to cultivate four plants in a dwelling.
It seems to me that the way it is and the way you explain it, there is the potential for a challenge the day after the bill is proclaimed by somebody who will find him or herself under the scope of a provincial jurisdiction that would have banned the possession for being underage or for the cultivation of four plants in a dwelling.
It seems to me how you’re going to answer the provincial ministers of Quebec and Manitoba, as much as we will hear from them later on, on how we address that conflicting situation whereby there would be a simple way to address it, which would be a saving clause stating that the federal purpose is not frustrated by a province recognizing that the simple possession for a person underage or for banning four plants is not against the purpose or aim or pursued by the federal legislation. That would close, at least, all the potential challenges you yourself have referred to this afternoon in your presentation.
Ms. Labelle: I am not certain that I can add very much more to what I have already provided in terms of an explanation.
I can say, though, that the legislation was carefully crafted so as to not create an entitlement or a right. How a challenge would come up I’m not certain. It’s not a right of possession. It’s not an entitlement of possession. It’s simply the fact that the criminal law does not apply to that. If you are possessing 10 grams, you are not acting against the criminal law.
This is where the role of the provinces and municipalities is significant, because then they can, with their own tools, decide what the local conditions should be. I think that’s about as much additional information as I can provide.
The Chair: You mean today? Well, thank you. I don’t want to start an argument. I think the elements are on the table. It’s a very serious issue that this committee will be invited to address later on in its sitting.
I would like to thank you, especially for your attendance tomorrow when we will be listening to the representatives of the RCMP and Public Safety Canada, so that if there are questions, you will be available to answer.
I do appreciate, on behalf of my colleagues, your availability and the genuine aspect of your answers. Thank you very much.