THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Thursday, March 29, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, met this day at 10:30 a.m., to examine the subject matter of those elements contained in Parts 1, 2, 8, 9 and 14.
Senator Serge Joyal (Chair) in the chair.
The Chair: Honourable senators, welcome to today's meeting. We will be continuing our consideration of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts.
We have the pleasure this morning of welcoming Mr. Michael Spratt from the Criminal Lawyers’ Association.
He is a familiar contributor to our reflections around this table. Welcome, Mr. Spratt. I understand you are accompanied by Ms. Ayesha Kumararatne. Good morning and welcome.
Also appearing before us is, Mr. Eric Neubauer, representing the Canadian Council of Criminal Defence Lawyers. Welcome, we appreciate you being here. And finally, appearing as an individual, Professor Mark Walters, from McGill University.
Good morning, professor.
We will start with Mr. Spratt.
Michael Spratt, Member, Lawyer, Abergel Goldstein and Partners, Criminal Lawyers’ Association: Thank you very much. It’s a pleasure to be before this committee again. It’s been too long. I’m happy to be back.
Ms. Kumararatne is going to talk about the immigration impacts of this bill, and I’ll be dealing with the substance of it that touches on the criminal law more specifically. We’ve submitted a brief, and, in typical criminal lawyer style, we have done that a bit late. It should have been emailed to you all or sent around, and it will be translated shortly.
The war on drugs has been a complete and abject failure. The social and financial cost of criminalization of drugs outweighs any illusory benefits, and there’s no area where that’s more true than in the area of cannabis. Even in an era of declining charges, we still have thousands of people across our country who are in our courts facing charges of possession of small amounts of marijuana, and our already overburdened court dockets aren’t filled with privileged, white-class children who were caught smoking a joint. There are echoes of racism in Canadian drug laws, and this was recognized by Bill Blair, Parliamentary Secretary to the Minister of Justice, who acknowledged that minorities, Aboriginal communities and racialized individuals are disproportionately charged, prosecuted and incarcerated for marijuana offences.
Marijuana criminalization imposes unreasonable penalties on relatively low-risk activities and, as criminal defence lawyers, we see the results of criminalization. We represent individuals who have been charged with violent offences because of marijuana. We see the effects of marijuana prohibition laid bare on our streets and in our courtrooms. In simple terms, it’s the criminalization of marijuana that creates harm, not marijuana itself.
The Criminal Lawyers’ Association supports legislation that’s fair, modest and constitutional, and we support the legalization of marijuana. There are, however, problems with Bill C-45, including constitutional issues, which I hope this committee will look at seriously. We’ve proposed some amendments to help ameliorate some of those problems.
The first issue is, quite frankly, the bill is overbroad. In too many circumstances, marijuana is criminalized. An adult who possesses 30 grams of marijuana in a public place is a criminal. A youth who possesses more than 5 grams of marijuana under this bill is a criminal. An 18-year-old who passes a joint to their 17-year-old friend is a criminal. The continued distinction between “legal” and “illicit” marijuana, and the continued criminalization of marijuana in these circumstances, will undercut many of the potential benefits of legalization — more wasted court time, more stigmatization — again disproportionately falling on those individuals who don’t come from a place of privilege.
This bill also asymmetrically criminalizes youth. That is, things that are criminal for a young person to do are legal for an adult to do. That has appeared nowhere prior in our Criminal Code. That sort of distinction based on age I think is ripe for a constitutional challenge. This means that a 17-year-old who possesses more than 5 grams of marijuana is committing a criminal offence; an 18-year-old who is one day older is not committing an offence. We recommend that that distinction be rectified.
Briefly — and I hope we have questions about this — it’s good that there’s a ticketing regime in this bill and it’s good to divert matters from the Criminal Code, but that ticketing regime as written is unconstitutional. It excludes youth, and that sort of discrimination is going to offend the Charter. Also, with the benefits of that ticketing system, that is, being able to seal a court record to make sure that there’s not continuing stigma, we know that this will disproportionately affect the poor, meaning that if you can’t pay your fine, you don’t get your same benefit as someone who can pay a fine. That’s something that can easily be changed.
There’s a lot more to say, but Ayesha will talk about some of the immigration consequences here.
Ayesha Kumararatne, Barrister and Solicitor, Affiliate Counsel to the Federal Practice Group, Criminal Lawyers’ Association: Thank you, Michael. My practice area is mainly in criminal and immigration law. Something that I see often is not enough consideration given to immigration consequences and how that affects individuals as well as our court systems, both in criminal court and the immigration tribunals.
One of the bigger issues that I saw in looking at Bill C-45 is how there may be more people becoming what’s called “criminally inadmissible to Canada.” Regardless of the sentence that they necessarily receive, they will become inadmissible and then be referred for a deportation order. These people will end up filing appeals, as they have the right to do when they’re sentenced to less than six months in custody. As we’ll see from the statistics from the Immigration Appeal Division, about a third of those appeals are stayed or allowed, which tells us that when looking at people seeking these appeals, they’re not hardened criminals. They’re people sentenced to less than six months in jail and who, nevertheless, have spent years or decades in Canada basically establishing themselves as contributing members of society.
One of my concerns in looking at this bill is whether or not these maximum penalties that we’re looking at are necessary. How many times are people actually sentenced to those maximum penalties for any given offence? We understand from a policy point of view that there’s a symbolic reason behind having these maximum penalties, but when you look at the consequences, especially on the immigration side under the Immigration and Refugee Protection Act, there has not been enough consideration about the cost of those implications in terms of the appeals before the appeal division and costs to individual, permanent residents, as well as individuals who are trying to enter Canada.
As Michael pointed out, the overbreath of the act will also impact people coming into Canada temporarily because we also have inadmissibility for people who are found to be committing acts upon entry to Canada, which is something the Canadian Bar Association has also discussed.
I know there will probably be questions about this, so I will save a little more of my explanation for questions and answers.
The Chair: Thank you very much for your cooperation. Mr. Neubauer, please go ahead.
Eric Neubauer, Representative, Canadian Council of Criminal Defence Lawyers: First, I’d like to extend my thanks to the Senate for inviting the Canadian Council. It’s an organization that was formed in 1992 to give a voice to criminal defence lawyers practising across Canada, whose perspectives and experiences are as unique and diverse as the country itself.
To give a very brief background on me, although I’m a practitioner in criminal defence now, I began my career as a drug prosecutor with the Public Prosecution Service of Canada. I summered and articled there, and also worked as a Crown. As a Crown, I worked in busy downtown courthouses — drug courthouses — that gave me insight into this issue. I also worked in youth courts, where youths are prosecuted for drug offences, in my experience, overwhelmingly with respect to marijuana use. That’s the perspective I bring and that I hope I can bring on behalf of the council.
From our perspective, this bill is so important in many ways. It’s leading the way for a cultural shift. It’s also leading the way for a legislative shift, representing a recognition perhaps that careful regulation rather than criminal prohibition can be an effective way — perhaps a more effective way — of addressing social ills. This bill could be a roadmap for further changes, and it’s therefore important to get it right.
This bill also is an important means in a very real and practical way of reducing harm. I note that many concerns have been raised in the debate around this bill about the potential harm caused by marijuana use. The potential harms to children, I think, have rightly been highlighted. I would urge, however, that the benefits of eliminating the illicit market for marijuana cannot be lost in the debate as well. As both Crown and defence counsel, I’ve seen first-hand the violence occasioned upon young people by illegal organizations that have as their primary profit regime the sale of drugs, including marijuana.
The Canadian Council’s view is that a true legalization model, analogous to those employed for other harmful substances like tobacco and alcohol, is an optimal solution. Anything else, importantly, will have unintended, inadvertent impacts. A continued criminalization regime will require police to enforce this regime and, as history teaches and as Mr. Spratt helpfully highlighted, this can lead to a disproportionate impact on minorities and marginalized groups. It can also lead to continued Charter-ambiguous interaction, if I can put it that way, between police and these marginalized groups.
An important point and perspective the Canadian Council can perhaps particularly bring to this discussion is that this regime will apply inconsistently across the country. We benefited very greatly from submissions from our colleagues in the North, and they flagged a number of very important concerns. For example, the financial means to pay a $200 ticket is just something that may not be available to many segments of our population. That means these lesser consequences that the ticket regime allows may be lost on certain segments. Other things surprised and hadn’t occurred to me — things like paying tickets within a time frame where the mail functions differently, or where access to cheques or credit cards functions differently. Those are very real concerns. The time frames of, I believe, 30 days can be something rather onerous when you’re looking at one location many, many miles away to try and get to in order to make those payments.
Other issues that are engaged by different parts of the country are Crowns’ personal approaches to prosecution and individual police detachments’ willingness to engage in the ticket system. The ticket regime is entirely optional, so there’s no requirement, which perhaps would be prudent, for the ticket regime to be employed as the structure of first resort. That would be a very positive change to the bill. If not made mandatory, clear guidelines would be useful regarding how it can be the mechanism of first resort in addressing relatively simple marijuana charges.
The Chair: Thank you. Are you able to conclude quickly?
Mr. Neubauer: I’ll leave additional content for questions.
The Chair: Thank you very much. Professor Walters, please go ahead.
Mark Walters, Professor of Law, McGill University, as an individual: Thank you for inviting me to your committee today. I’m here to speak on a fairly narrow point relating to potential conflicts between the bill, once it’s enacted, and proposed provincial legislation in Manitoba, as I understand it, but also Quebec. I’ll focus on Quebec since I’ve looked at the bill presently before the Quebec National Assembly.
I’ll preface my remarks simply by saying I’m not an expert in criminal law, nor have I studied in any depth the issue of cannabis regulation or decriminalization. I teach constitutional law at McGill, and I’m simply coming at this issue from the perspective of somebody who has thought a bit about federalism and the division of powers in Canada.
The specific question that I understand your committee has some interest in is the question of home cultivation of cannabis. The bill will provide for a general prohibition on home cultivation of cannabis with an exception for people growing four or fewer plants at home.
Quebec has a bill before the Quebec National Assembly that would prohibit home cultivation of cannabis. In my written submission, I quoted the clause in the Quebec bill on this point. I’ll read it to you quickly:
9. It is prohibited to cultivate cannabis for personal purposes.
Anyone who contravenes the first paragraph by cultivating four cannabis plants or less in their dwelling-house commits an offence and is liable to a fine of $250 to $750. Those amounts are doubled for a subsequent offence.
That’s the proposed Quebec rule.
Very quickly, I will summarize my conclusions. I can provide further explanations later or you can have a look at my written submissions.
Both the federal rule on cannabis home cultivation and the proposed Quebec rule on prohibiting home cultivation are constitutionally valid. I don’t think there’s a validity question here. It’s a paramountcy question. As you know, when a valid provincial law and a valid federal law arguably operate on the same point, the question of conflict may arise, and the paramountcy rules deal with that conflict.
My own view is that, on a standard or narrow reading of the case law on this point, it might well be possible for the courts to find that both of these rules are operable simultaneously, although the result of that would be that people in Quebec, at least, would not be able to cultivate cannabis at home.
I don’t mean to waffle on this point, but I have to acknowledge there is a strong argument going the other way, to the effect that complying with the provincial rule would undermine one important purpose of the federal rule, which is to address the illicit production of cannabis. As I understand it, the reason for allowing some small amounts of home cultivation under the proposed federal rule would be to undercut demand for illicit cannabis. It is one method of addressing a serious problem.
Would the Quebec rule frustrate that federal purpose? It arguably would, and for that reason, it may well be found that the Quebec rule is inoperable. But as I say in my written submissions, there’s some question about how that argument would work and whether it would involve extending the jurisprudence on the Canadian criminal law power to a point where it had not previously gone before.
I’ll stop there for now.
The Chair: Thank you. I’m sure there will be questions.
Senator Boisvenu: Thank you for being with us today. My first question is for Mr. Spratt.
You stated that this would be a first, and that the Criminal Code had never before set out a crime applicable to minors and not adults. For once, I share your point of view.
Do you believe that the bill should now be amended, in the case of minors aged 12 to 17, to impose a fine rather than a criminal offence?
Mr. Spratt: Yes. There are two amendments that I think can rectify that problem, and that’s eliminating the sections that deal specifically with the youth in both sections 8 and 9.
Senator Boisvenu: Are you also referring to possession?
Mr. Spratt: Yes, for possession, and extending the ticketing option so it can also apply to youth.
Now, I know that there is some tension. Obviously, we want to discourage youth from possessing and from using cannabis, and I take it that that is the intent of that section, but we know from the last hundred years that complete criminalization hasn’t deterred our youth from possessing or consuming cannabis. A continuation of that criminalization approach to achieve those objectives runs counter to our experience and runs counter to the evidence we have about the deterrent effect that criminalization has, especially on youth and on drug charges.
Instead of putting resources into that and creating a problem with discrimination based on age and different consequences for similar actions based on age, we can retool those resources and that effort to education and other campaigns such as that, which have proven to be quite effective to accomplish that goal.
Senator Boisvenu: Mr. Walters, thank you for being here. The provinces could each establish their own legal framework. For instance, rather than making this a criminal offence, they could impose a fine. Certain provinces may opt for a zero tolerance regime. Constitutionally speaking, who has jurisdiction, the provinces or the federal government? I am referring here to fines. Were Quebec to decide against criminalizing its youth, in favour of fining them, would that be acceptable from a constitutional standpoint?
Mr. Walters: For the province to say what?
Senator Boisvenu: Instead of a criminal charge, it will be just a ticket.
Mr. Walters: Absolutely. First of all, just backtracking, the province cannot impose any criminal sanctions in the constitutional law sense for violating its regulations concerning cannabis. Whatever it imposes will be a purely provincial regulatory offence. But it could impose a fine, and it could impose imprisonment as well.
Senator Boisvenu: Instead of a criminal charge?
Mr. Walters: Yes. There would be no criminalization from the provincial perspective, yes.
Senator Dupuis: As you are aware, Bill C-46 contains a preamble. It is an amendment made to the bill by the House of Commons committee. The preamble stipulates that police officers must use their power to investigate in accordance with the Canadian Charter of Rights and Freedoms. It was to some extent a response to issues raised around racial profiling. You made reference to these issues. Some groups of citizens are more specifically targeted. Could a similar preamble be useful, in the same way, in the case of Bill C-45?
Mr. Spratt: It’s a given that police officers and other officials should always act in compliance with the Charter. What we’ve seen is that that doesn’t necessarily occur at all times. Although expressing a desire, if the Charter isn’t going to have officers comply with their obligations, a preamble to a bill will not. It’s particularly important when we’re looking at the exercise of discretion about whether to lay a charge or not lay a charge, or whether to go down the ticket regime or not. We’ve seen that in the Ottawa traffic study that looked at minorities being pulled over, we've seen it with carding and we’ve seen it with the enforcement of current marijuana laws. There are problems with police officers exercising that discretion in a constitutional and proper way. I’m skeptical whether the addition of a line or two of preamble asking them politely to do that will result in the change of behaviour that we all want to see.
Senator Dupuis: I would like to come back to your comment, if I may, regarding the discretion police officers have to issue tickets. If I understood you correctly, the police officer is not the only one who has discretion in the matter; so, too, does the Crown prosecutor, who will determine whether to prosecute. Do other factors come into play when it comes to the liberal use of discretion? It raises the question as to whether certain groups are likely to face discrimination?
Mr. Spratt: Discretion is necessary and it’s something that should be encouraged, but we’ve seen through history that just relying on discretion alone can lead to disproportionate impacts against certain communities. That’s especially true when we’re dealing with marijuana offences. A charge for these types of offences, even if ultimately there’s no jail sentence and even if ultimately discretion is exercised down the line, can have, as Ayesha can speak to, devastating immigration consequences.
Especially when we’re dealing with marijuana, there is a disproportionate stigma to being charged and having any type of record for a marijuana offence. In the United States, we’ve seen people being turned away not even for being charged with marijuana but for admitting to historically consuming marijuana. We’ve seen people fail vulnerable sector checks and being denied employment, housing or volunteer opportunities because of simply the stigma attached to marijuana.
This bill is good because it’s going to reduce some of the stigma, but I think there are mechanisms that we can put in place to make sure some of those very negative social impacts of criminalization can be further reduced.
Senator Eaton: Ms. Kumararatne, I asked this question yesterday of the Justice Minister, and perhaps you can explain it more to me. I asked if people ticketed or charged with a marijuana offence would appear on the usual police files where they fingerprint you. I was worried about people crossing the border into the United States. She said nowhere will those charges, if you’ve been ticketed for marijuana or charged with a minor marijuana offence, be traceable by, for instance, border guards. Did I get that right?
The Chair: Yes. That’s what she said, but you may be asked the question, “Did you smoke?”
Senator Eaton: Why do you think that will affect people’s immigration status if it does not appear on for crossing the border, for instance?
Ms. Kumararatne: Yes. For one, right now, people who receive, for example, absolute and conditional discharges have problems crossing the border, regardless of the —
Senator Eaton: I’m talking about the bill.
Ms. Kumararatne: Yes, and I'm trying to say that there is never a guarantee on how getting a ticket like this under this bill and this law will affect crossing over to the United States. I’m not a U.S. immigration attorney, so I can’t comment on how, for example, the United States would determine its admissibility. But right now, we certainly have significant concerns just getting across the border for other offences as well, so I would imagine that people would be left at the discretion of the border officer that meet that day at the U.S. border.
Senator Eaton: I’m not disagreeing with you right now, but she very clearly said that if you were ticketed for marijuana, or you were charged with a minor criminal marijuana or cannabis offence, it would not appear anywhere. It would not go into the big system because you’re not fingerprinted and it would not appear —
Senator Sinclair: In CPIC.
Ms. Kumararatne: However, people do have to answer the question at the border from time to time, officers asking them if there are criminal charges pending. We in Canada ask people if they are charged with criminal offences coming in. I cannot comment on what U.S. policy will be at the border with regard to those kinds of questions, but those kinds of questions are already asked about criminal charges. I don’t think it’s a stretch to consider that there would probably be some uncertainty about that based on a person’s own admission about outstanding charges and that being a barrier for them to cross international borders.
Senator Gold: Thank you for your testimony. I was encouraged to hear a number of you underline the important point that the harm of the substance notwithstanding, the greater harm is caused to both individuals and society by criminalization. I agree with you.
My question, unsurprisingly, is for Professor Walters. The issue of paramountcy and the operation of provincial and federal law is of some concern to us. I’ll read with interest your brief where you go through the arguments.
Help us in this way: If we believe that cooperative federalism is an important value for us, that is to say that provinces and through the provinces local municipalities should be given some latitude to determine whether or not it’s in their interests of their community to bar home cultivation completely, as Quebec did on a province-wide basis, can you help us think of ways in which the bill might be tweaked or amended to eliminate that or to make it clear that in cases of conflict, however the courts come down on it, that the provincial law would not be rendered inoperable? Would this be a tweak to the purpose clause? How would you recommend we proceed if we wanted to make it clear that a province like Quebec or Manitoba should be allowed to bar home cultivation completely?
The Chair: It’s a thousand-dollar question.
Mr. Walters: I suppose the easiest answer is to place a provision in the main body of the bill or the act which states explicitly that provinces have this latitude to adopt a different rule on home cultivation. That could be worded easily enough to make it clear to everyone that this is something that Parliament contemplates as a possibility if it desires to do so.
On adjusting the purpose part of the bill, clause 7 has a list of purposes. It could also be some adjustment to the language could be added to some of the purposes, but that’s a little more complicated because the list of purposes is fairly abstract in general at the moment. Once you start building in additional qualifications, it becomes awkward in terms of the impact on subsequent judicial interpretation once the purpose clause becomes cluttered up with caveats and qualifications. I’m not sure which of the purposes you would have to amend in order to eliminate any possibility of confusion down the road.
So my recommendation would be, in the main part of the bill itself, something explicit on this point.
Senator Gold: Second round, if time permits.
Senator Carignan: I would like to pick up where the previous questioner left off. Do you believe — simply by virtue of the insertion of a qualification in the legislation — that the courts, looking through the lens of the Constitution, would consider any prohibition by a provincial government on in-home cultivation as falling squarely within its purview? Would a simple provision of the sort, in the interests of greater clarity, be subject to constitutional scrutiny? I would like to fully comprehend this point, given that there is quite a scale in terms of quantity.
Mr. Walters: I think it would be sufficient. As things stand now, it’s somewhat unclear in my view whether the provincial rules say the one contemplated in Quebec would be inoperable or not. It might be operable and it might not be. I guess that’s the problem.
In my view, a provincial rule preventing home cultivation would be constitutionally valid, and the only issue is whether there is a conflict with the federal law rendering it inoperable. Clarifying the federal law to ensure that it’s clear that there is not a conflict would resolve the problem.
Senator Carignan: The police association is also in favour of a federal ban on in-home production. Were both levels of government to proceed with a prohibition, they would share a common objective, and there would be no issue.
Mr. Walters: That would solve the problem immediately. If the cannabis act federally made it a criminal offence to cultivate any cannabis at home, then that would be an easy out.
Senator Jaffer: Thank you for being here today. It really helps our work.
Mr. Spratt, you mentioned the maximum penalties allotted for certain offences in Bill C-45. I’ll give you, as an example, distribution to a minor under section 9. This puts the offence under the purview of serious criminality. The challenge I have with this bill is that it is introducing serious criminality for offences that didn’t exist before. It’s like, for example, for serious offences, it is not serious criminality as it is in this bill.
Answer that, and then I have a question about immigration.
Mr. Spratt: Yes, you’re right. Part of the problem is that when you look at the distribution offence specifically, it’s a bit like the problem that we have with mandatory minimum sentences. It’s a bit of a one-size fits all solution. Currently, in the Criminal Code, if you have possession for the purpose of trafficking or if you traffic under three kilograms of marijuana, so that could be just under three kilograms or just a joint, the maximum punishment if proceeded by way of indictment is five years. With this bill, if you traffic or possess for the purpose of trafficking a thousand kilograms or one joint, it’s the same maximum sentence. That can lead to some of the immigration consequences that we have discussed earlier.
Senator Jaffer: The immigration implications are heightened, as you mentioned, with maximum penalties such as potential for permanent residents to be convicted with a first offence and face deportation as a result. The unintended consequences of the act must be considered to ensure that Bill C-45 uniformly applies to all Canadians and doesn’t sort of have a disadvantage.
You said that the courts look at the whole person, what they were doing here and not just at this one. The federal courts are absolutely jam-packed, even worse than the Supreme Courts. This will really create havoc in the Federal Court system.
Ms. Kumararatne: In my practice, what I do all day long is dealing with the criminality aspect of immigration. I’m constantly writing legal opinions for use in criminal court by other lawyers for judges so that they can understand the immigration consequences when they sentence somebody. That’s because we recognize that, for example, somebody who receives a suspended sentence and no jail time can still trigger a deportation order.
It’s not a simple appeal process. In my experience, when you have an immigration deportation appeal, first of all, the wait time to have an appeal is about one to two years. When you get to that first hearing, you are very rarely actually winning the appeal. You get what is called a stay of the deportation. You then have to come back in anywhere from one to five years. So then you have an individual suspending about anywhere from three to seven years. I have an appeal for someone who was convicted in 2009. The final appeal is in 2020, and we have received stays throughout. What does this mean in terms of costs?
If you look at the Immigration Appeal Division and the Immigration and Refugee Board, which is really in charge of all of these appeals, there is a huge backlog with family sponsorship of appeals, for instance. We're looking at an increase of deportation appeals for people who, on the face of it, from a criminal court point of view, aren’t really serious criminals. It’s just triggered because of this maximum penalty.
So even though they don’t receive custodial time or anything even close to six months, all these consequences are being triggered. For the individual, it’s a huge stress. People are nervous about travelling abroad while they have an active deportation order that has been stayed. You have, of course, Canada Border Services that is also engaged, because all these people usually have to go through a detention review hearing and then get bail, and then are on conditions for years. They’re effectively on bail for the entire duration of that appeal.
In essence, whenever we talk about criminal laws and maximum penalties, we fail to see the immigration implications and the cost to the public.
Senator McIntyre: My question is for Professor Walters. It’s a follow-up to the issue of home cultivation raised by both Senators Gold and Carignan.
Professor, ultimately the courts could be faced with two bills, Bill C-45, clause 12 ,and clause 9 of Quebec’s Bill 157. On the issue of home cultivation, my understanding is that both laws, federal and provincial, would be constitutionally valid. However, there could be a problem of interpretation, the problem being one of frustration arising from both laws, and in that case, as you have indicated, the federal paramountcy doctrine would prevail.
It’s difficult to say what interpretation the courts would give. In your opinion, does it depend on the interpretation the court could give to the Rothmans principle, which is a Supreme Court of Canada decision?
The Chair: I don’t think it’s a tricky question, Mr. Walters. I know that the Rothmans case is referred to in your brief, so it’s not a trap.
Senator McIntyre: I read your brief.
Mr. Walters: Yes. There are some passages in the Rothmans decision that state quite clearly that the criminal law power allows Parliament to impose prohibitions but doesn’t allow Parliament to create positive entitlements, so carving out an exception to a criminal law prohibition, for example, “You may, if you wish, cultivate up to four cannabis plants at home,” following the standard reading of that case, would be to merely create an exception and not an entitlement. Within that space left out of the criminal law, valid provincial regulation can flow in, and this is producing the problem.
In the Rothmans case, the court held that a provincial rule prohibiting the promotion of tobacco frustrated a federal rule that also prohibited the promotion of tobacco but exempted retail businesses, and the provincial rule covered retail businesses, more or less. That rule was upheld. It was held not to frustrate the federal purpose.
In the case of cannabis, it’s a little more complicated because we can see that there is a good argument to the effect that the provincial rule would frustrate one of the federal purposes. The purpose that I think might most obviously be frustrated by a no-home-cultivation rule provincially would be the purpose of trying to stop the illicit trade in cannabis.
Senator McIntyre: From what I understand in your presentation, the exemption from criminal liability in the Rothmans case is different from the exemption of home cultivation of cannabis in the present case. In the present case, the exemption is tied to — and you have explained that awhile ago — discouraging the illicit trade in favour of the licit trade. Do you think the Rothmans principle could be modified or should be modified?
Mr. Walters: I think it could be, yes. In the case of the duelling tobacco regulations federally and provincially, the court found that complying with the provincial rule was simple enough. The retailers simply would forego any promotion of tobacco products. Doing so would not frustrate the federal purpose because the two rules have the same purpose, protecting public health and safety, especially in relation to young people.
There is a difference here because there is, arguably, a conflict of purposes. I think, actually, it’s not a conflict of purposes. The Quebec bill probably has the very same purpose as the federal bill. I think that the statement in the Quebec bill is one purpose of this act is to ensure the integrity of the cannabis market, meaning, in my view, that it also wishes to eliminate any illicit trade in cannabis. It’s just that the two legislatures have different views on how to achieve that purpose.
Senator Batters: Mr. Spratt, it’s nice to have you back. We haven’t seen you very much in the last couple of years. It’s good to have you here.
Thank you very much for the brief that you filed for the Criminal Lawyers’ Association. In that brief, you state this:
Given the research on the impacts of judicial, the inability of those under 18 and of the poor to purchase privacy in their judicial records, and the disproportional marijuana enforcement experienced by marginalized groups, it is likely that ticketing provisions in Bill C-45 will be found to violate the Charter.
I would like you to have an opportunity here to tell us about your recommendations that your organization is making to address this by amendments to the bill.
Mr. Spratt: The easiest way to rectify the discrimination between those who can afford to pay this fine within 30 days to have the records sealed and those who cannot is to remove that requirement. There should be a detachment between sealing the court records and paying the fine. If that is removed, then everyone, the poor and the well-off, would both be able to take advantage of that, and the stigmatization of those groups who are already stigmatized and already at a disadvantage can be lessened.
Senator Batters: You also talked about excluding youth from the ticketing regime. Could you briefly talk about that as well?
Mr. Spratt: We recognize that youth use marijuana. They are not deterred currently. Those youth fall under the Criminal Code provisions. There is not even that ticketing option for them. That’s an obvious discrimination between someone who is under 18 and someone who is over 18, especially when you consider that when you’re a youth, you have longer to live, and there is going to be more of an impact based on that stigmatizing drug record.
Senator Batters: Thank you.
Senator Pratte: Professor Walters, when we had the minister yesterday, on this issue of home cultivation,she insisted that if there was a court challenge eventually, the federal law would prevail — she repeated that two or three times — which I interpret as a traditional interpretation of the paramountcy doctrine. If we amended the bill as you suggest, is there a way of doing this without it being a challenge to the paramountcy doctrine? Obviously, if it was seen as a challenge, the government would object or would not agree to such an amendment.
Mr. Walters: Would the objective of the amendment be to ensure —
Senator Pratte: That the provinces could go to zero plants for home cultivation.
Mr. Walters: Yes. I think it’s simply a policy decision that would have to be made. If the government is going to stick to the present position, that they wish home cultivation to be allowed, then presumably they wouldn’t accept that amendment. I’m not sure if I’m answering your question.
Senator Pratte: What the minister said yesterday, which may go against your own interpretation, is the fact that home cultivation would be licit as a purpose of the act, so sort of as a positive entitlement — maybe we should present it like that — which is not really the way you’re seeing it, in a way.
Mr. Walters: I guess that’s my concern, back to the Rothmans case again and this idea that the criminal law power can’t be used to create positive entitlement. Although the criminal law power can be exercised to carve out exceptions from prohibitions, within the space carved out there is not a positive entitlement to engage in the decriminalized activity. There is a freedom to do it, obviously, but subject to whatever valid provincial regulations come along to regulate that activity. The real question then becomes, because a provincial rule prohibiting home cultivation would conflict with one of the purposes of the federal statute, whether that Rothmans rule might be modified and the provincial law found inoperable. Obviously the minister thinks that would be the outcome. I think that’s quite a possible outcome. I’m reluctant to go as far as to say it’s definitely the outcome, simply because of the strong language used in the earlier case of Rothmans.
Senator Sinclair: One of the concerns that has been raised with this committee is the potential for the movement of the people who are currently in control of the black market in cannabis into investing in marijuana production companies through the use of hedge funds or through the use of the tax haven communities and nations and investing in the money in staying in control of the black market that way. Do you have any thoughts on the bill with regard to what the bill should do or say about the potential for criminal organizations to control marijuana production through the use of tax haven money?
Mr. Neubauer: Well, I mean, that is a concern. Again, I’m wading a little out of my depth here. My understanding was there were controls in the bill with regards to criminal records checks, that a criminal record would disentitle you to directly form a company. Whether they could do that indirectly, through hedge funds, as you mentioned, senator, is a risk. But the greater risk that I would point to is the current model where criminal organizations are primarily responsible for the trade of marijuana. I can tell you first hand it creates an incredible amount of harm. I’m working on a case right now that is an appeal of a murder case. The murder itself is horrendous and was perpetrated allegedly by gang members involved in the drug trade. But what was even more frightening is the fact that as the case unfolded, it became clear that the violence that sort of reached a climax with the murder was preceded by days and days of shooting. This was all around the illicit sale of drugs in vulnerable communities. I think it is so important, what this bill is doing, to shut that down and those actions of criminal organizations.
Senator Boniface: I want to follow up from Senator Sinclair. I am interested, Mr. Neubauer, in your comment around the benefits of eliminating the illicit market. One of the issues that has been raised is the provision for homegrown and whether or not collectively that will actually contribute to an illicit market. One of the examples has been you pay a bunch of people a small amount of money to carry four plants — we know it won’t be four —and you put it together as a collective and create an entire market. Have you turned your mind to that in terms of the principle of eliminating the market?
Mr. Neubauer: I think that any time there is an opportunity for private growth, there is going to be the opportunity for exploitation. I think that that’s where the role of the provinces is, creating effective “white market” regimes, if I can call it that, which produce good outcomes in terms of pricing and regulation so that hopefully it starves the market. Similar comments perhaps could be made about home-brewed alcohol and homemade cigarettes.
I think we would be naive to think that we can completely eliminate this market and legislate our way completely around that problem, but we can do the best we can, and I think effectively this bill will take a big chunk out of that, which is perhaps a good enough goal, and a very laudable one.
Mr. Spratt: If I could add to that answer, the bill does have some protections to avoid the circumstance that you’re speaking of — a bunch of people grouping their plants together. It’s quite clear that it is four plants in a dwelling house.
Senator Boniface: I appreciate that.
Mr. Spratt: There are some limits there. That’s especially important when you balance that against the harms of potentially not allowing homegrown marijuana.
Senator Dupuis: My question is for you, Professor Walters. You said that an amendment to clause 7 of the bill might not be ideal if the goal is to clarify any questions around federal and provincial legislation being on a parallel track.
Would the addition of a clause stipulating that federal law permitted four homegrown plants, along with the caveat, “unless otherwise regulated by provincial law,” be desirable? In other words, the federal government would agree to a federal statute that gave the provinces the option to enact different legislation. What are your thoughts?
Mr. Walters: Yes, I think that would be a possibility. It leads to what might appear to be an odd result. You have something that is possible in one province and not another province based on provincial responses, but the case law dating back a long time confirms that a provision in a federal statute on criminal law can open up the possibility for provinces to adopt — or not — a different response, all the way back to the Lord’s Day Act a long time ago.
The Chair: The first case in Canadian constitutional history.
Senator Gold: You had been addressing the problems in the immigration context with the provisions in the Criminal Code or in this bill. Let’s assume for the moment that the government would not accept to change it. Are there immigration act solutions to the problem that you raise? If so, without getting into chapter and verse, what recommendations or observations might be attached to the bill to bring this important issue to the attention of the larger community?
Ms. Kumararatne: That’s a great question. I think one of the acts that should be amended accordingly would be the Immigration and Refugee Protection Act, and specifically there the section on criminal inadmissibility, because the issues I’m raising here are based on just being triggered because of the maximum penalty. If we were to focus more on the sentence imposed rather than the maximum penalty, the impact would be more proportionate. Rather than someone triggering deportation because they received a suspended sentence or a conviction, perhaps it should be more about whether the person got five or eight months in jail. Should that trigger the need to have a deportation order triggered and give them or not give them the right to an appeal of that? That would be section 36 in the Immigration and Refugee Protection Act.
Senator Carignan: I have a question regarding the four plants per dwelling provision. Have you contemplated the vagueness of such a stipulation? If I want to grow four plants, and my wife does, too; we fail to come to an understanding and the police come, who will be prosecuted? What about students renting rooms in a house; are they each entitled to four plants?
The clause reads, “…if two or more individuals…are ordinarily resident”. I am curious, in the case of a bachelor apartment, as to whether the occupant is entitled to grow four plants, even if there are not two people living there. Have you considered specifics of that kind?
Mr. Spratt: Yes. The plain reading of the section says that there can be no more than four plants in one dwelling house. That means if my partner and I both want to grow four plants, that would lead to eight plants in the dwelling house, which would fall outside of the exception.
Now, there are some different provincial rules about what happens if —
Senator Carignan: Who would be charged?
Mr. Spratt: I hear what you’re saying, but the reading here is four plants in a dwelling house. There can be more discussion about the interaction between the federal government and the province, and we can always talk about that, but there are some provincial rules in place.
I think what is important is that in seeking to legalize marijuana, the more exceptions you carve out, the more you leave in the Criminal Code, the more complex it is, the more litigation there will be, the more constitutional issues there will be and the less benefit we will receive, namely the promised benefit from the legalization of marijuana. It’s astounding that police forces across the country are saying that legalized marijuana is going to cost millions of dollars more to enforce than illegal marijuana. When we start having exceptions and more nuance in the Code, it can lead to some undermining of the benefits of legalization in the first place.
The Chair: Thank you very much. It’s my pleasure to thank you on behalf of all senators. Your contribution has been very helpful to all of us. Thank you very much Mr. Spratt, Ms. Kumararatne, Mr. Neubauer, and Professor Walters for your seminar on the issue of constitutionality. I’m sure that honourable senators will want to read and reflect upon your documents.
We have a second panel, so I would ask our guests to withdraw from the table to allow the next group of witnesses to come forward.
We shall proceed with our consideration of Bill C-45. It is our pleasure to welcome Chief Mario Harel, the President of the Canadian Association of Chiefs of Police. Welcome, Mr. Harel.
By video conference, we also have Deputy Chief Mike Serr, Co-Chair, Drug Advisory Committee. Welcome, Mr. Serr. I hope you can understand my words where you are.
It’s also my pleasure to welcome, from the Canadian Police Association, Tom Stamatakis. Thank you for making yourself available from the other side of the country. We appreciate that.
I call on Chief Mario Harel to kick off the meeting with his remarks.
Chief Mario Harel, President, Canadian Association of Chiefs of Police: Honourable senators, the Canadian Association of Chiefs of Police (CACP) is proud to have the opportunity to testify today regarding Bill C-45. I am Mario Harel, President of the Canadian Association of Chiefs of Police and Gatineau Police Chief. I am joined by Deputy Chief Mike Serr of the Abbottsford Police Service and Co-Chair of the CACP Drug Advisory Committee. Videoconferencing sometimes makes things a little more difficult, I know.
Deputy Chief Mike Serr is our expert as co-chair of the Drug Advisory Committee, and he will be able to answer any questions you have concerning our position.
The mandate of the CACP is “safety & security for all Canadians through innovative police leadership”. This mandate is accomplished through the activities and special projects of some 20 CACP committees and through active liaison with various levels of government. Ensuring the safety of our citizens and our communities is central to the mission of our membership and their police services.
Bill C-45 is a comprehensive bill and we will address our key themes, at a high level, in our opening statement. In addition to the association's appearance today, we submitted for your consideration, a written brief outlining our concerns from a law enforcement perspective.
Our role from the beginning has been to share our expertise with the government to help mitigate the impact of this legislation on public safety. Extensive discussions within the CACP membership and various committees formed the basis of our advice. We participated in a number of government held consultations and made a submission to the federal task force. We also produced two discussion papers: “CACP Recommendations of the Task Force on Cannabis Legalization and Regulation” on February 8, 2017, and the second “Government Introduces Legislation to Legalize Cannabis” on April 28, 2017. Themes from both discussion papers have been included in our written brief, as submitted.
Police leadership across Canada have identified six major themes, which could have a significant impact on policing. These are: in-home production, in-home possession, organized crime and pricing, youth possession, seizure of plants and compensation, and edibles.
Regarding in-home production, the CACP continues at this stage to strongly advocate against this measure. We predict that personal cultivation is largely unenforceable and will provide for additional opportunities for the illegal possession, distribution and over production of cannabis. We also fear that in-home production will pose a further risk to youth due to increased exposure and accessibility.
Moreover, unlike the 30-gram possession of cannabis outside a dwelling, Bill C-45 remains silent on the quantity of cannabis permissible indoors. At this time, in-home possession is virtually unlimited, thereby making it difficult to determine whether the cannabis is derived from a lawful or unlawful source or whether the amount of possession is, in fact, for the purposes of trafficking. Given these issues, we recommend that a limitation on in-home possession be imposed, were such cultivation to become lawful.
Regarding organized crime and pricing, we continue to stress that the bill must consider the impact that legalization will have on organized crime. As such, we request that adequate pricing be addressed and recommend that costs remain as low or lower than cannabis sold on the black market, in order to discourage price undercutting and illicit sales.
We also ask the Federal Government to enact strict security clearance requirements that would safeguard against criminal organizations becoming licensed growers as has been observed in the medical marijuana regime. The CACP remains concerned with the inclusion of organized criminals as licensed growers/distributors in the new cannabis regime since organized crime has infiltrated the medical marijuana industry. This is a major problem, in our view.
Regarding youth possession, the CACP continues to support and advocate for strong and sustained messaging and education campaigns for youth to raise awareness with regard to the dangers of youth consumption and distribution. We stress the need for clear packaging and labeling that details penalties to ensure awareness of the ramifications of trafficking to youth along with the dangers associated with youth usage. The examples of Colorado and Washington have demonstrated that legalization may encourage increased marijuana consumption amongst youth. Therefore, public education and strong messaging on the effects of marijuana use and stringent packaging and labeling are critical to dissuade youth consumption.
Regarding the seizure of plants and compensation, the CACP has significant concerns regarding the return of property provisions, which appear to require police to maintain and return seized cannabis plants. Police services across Canada do not have the facilities or resources to accomplish this. Accordingly, we ask that the proposed legislation address these concerns by relieving police services of any responsibilities associated with the deterioration of seized cannabis plants and from having to provide compensation to the owner.
Lastly, it is our understanding that edibles are anticipated to become legal in 2019. The CACP recognizes the dangers associated with edible consumption that create a further risk to public safety. As such, we advocate for strong messaging campaigns and education about the potential impact of edible consumption to help mitigate against public safety and risk.
In conclusion, our recommendations are not intended to dispute the government’s intention of restricting, regulating and legalizing cannabis use in Canada. Instead, we raise these issues because we have concerns about the impact of this act and, as previously stated, we all have a responsibility to mitigate the impact on public safety, which is our primary goal from a policing perspective.
The CACP supports many of the overall goals of the act, while recognizing that other stakeholders are better equipped to provide specialized knowledge in areas of public health and social service sectors. We also support efforts to deter and reduce criminal activity by imposing serious criminal penalties for those breaking the law, especially those who import or export cannabis, or provide cannabis to our youth.
Sincere thanks are extended to all members of this committee for having given us the opportunity to appear before you, and for listening to our recommendations regarding Bill C-45.
The Chair: Thank you very much. It’s my pleasure now to welcome Mr. Stamatakis. Mr. Stamatakis, you know the format and you are familiar with our proceedings. You may start now.
Tom Stamatakis, President, Canadian Police Association: Good morning, Mr. Chair and honourable senators. It is my pleasure to appear before you this morning as you continue your study into Bill C-45, legislation that will legalize the recreational use of marijuana in Canada.
As you all know, I’m appearing this morning on behalf of the Canadian Police Association, Canada’s largest law enforcement representative organization, with over 60,000 members serving in every police service across this country. As I’m sure you can imagine, this legislation is of utmost concern to our members, as they will be on the front line handling the changes being made by this legislation.
As is my habit, I’d prefer to leave as much time as possible for questions that you might have about how this bill will impact policing and how our members will adjust to this new regime for marijuana, but I do want to take this opportunity to make a couple of key points that I hope you will consider as you continue your deliberations.
With respect to some of the specific provisions of this proposed legislation, my colleagues from the Canadian Association of Chiefs of Police are here with us today and will touch on the operational difficulties of enforcement, but I do want to emphasize that there is no question this will come at a cost to the bottom line of police budgets.
Some aspects of this legislation will, quite simply, be almost impossible to effectively enforce, regardless of any additional funding provided by the government. Allowing individuals to cultivate and possess up to four marijuana plants is one specific example. I have difficulty imagining how any police service in the country will have the resources, whether financial or personnel, to monitor this particular provision. Certainly resources will be focused on finding illicit, large-scale grow operations, ones fuelling the black market, but it will be almost impossible to stop individuals who choose to go above the four plant maximum in more reasonable circumstances. Whether the cost of this is borne by local police services, each province or the local municipal government, there nevertheless will be a cost.
Furthermore, the members I represent will be caught between those who choose to abuse the four plant maximum and other citizens in the neighbourhood that might be impacted by increased traffic or other activities associated to the cultivation and grey-market sale of marijuana. On the one hand, those cultivating will criticize the police for meddling in their business and, on the other, some will accuse the police of not doing enough. Given the importance of community engagement and public confidence, this kind of scenario represents a significant concern.
I only use this example to highlight specific challenges police officers will face in the hope that this committee will impress upon the government the need to ensure that additional funding provided to police services is distributed equitably between the RCMP, provincial police services and the municipal services that will be, for the most part, on the front line of enforcement.
There is absolutely no question that this government received a clear mandate during the last federal election to proceed with the changes put forward in Bill C-45. While the legalization of the recreational use of marijuana may not have been at the top of the list of priorities for front-line police personnel, I should note that, for the most part, enforcement of existing laws around the possession and use of personal amounts of marijuana by law enforcement has been rather passive for quite some time, an attitude that I would say reflects the general feelings society has towards the drug. While there may be some examples to the contrary, generally speaking, most officers who come into contact with people using small amounts of marijuana would take every measure possible to avoid strict enforcement of the current laws.
With the introduction of Bill C-45, however, we’ve entered into a grey zone that continues to exist while this legislation is being debated by Parliament. Dispensaries and other often illegal vendors have flourished across this country. In Vancouver, my home police service, many storefront operations are getting a head start on breaking into the market without waiting for the legislation to pass or the accompanying regulations, both provincial and federal, to take effect.
Unfortunately, this confusion has put police officers in a difficult position. Communities have reached out, asking our officers to enforce laws as currently written and to shut down businesses, which has, in some cases, had the unforeseen impact of undermining the public confidence of our officers, who are routinely asked, “Don’t you have anything better to do?” This leads to the regrettable situation of “damned if you do, damned if you don’t,” where criticism of police decisions is made by one side or the other, based on action or inaction during this period of confusion.
I’m hopeful this that this committee will keep in mind that the ongoing delays in passing this bill will contribute to this period of confusion. Police personnel have a duty to enforce laws and, while our officers are trained and certainly do regularly employ tremendous amounts of discretion when it comes to the application of laws, I know our members will certainly appreciate clarity in one way or another as soon as possible.
Since the proponents of legalized marijuana are, in many cases, not particularly interested in respecting the timelines set out by the government, I recognize that Parliament has a difficult role in this regard. My preference is, as always, to get it right rather than get it done quickly. However, I did want to take this opportunity to highlight the current circumstances faced by officers on the front line and emphasize the need for clarity, whatever any final version of this bill will look like. Whatever the rules are, they need to be clear and unambiguous in order to avoid confusion for the members that I represent and for the public that will now be legally able to consume this product.
I’ll end my comments on that note. As always, I look forward to any questions the committee might have.
The Chair: Thank you very much, Mr. Stamatakis.
Senator Boisvenu: Mr. Harel, your brief is rather compelling, and a tad disquieting.
According to the literature, it takes 8 to 13 weeks to grow a marijuana plant, depending on the variety of marijuana grown. That amounts to 3 to 4 harvests annually. An individual may be in possession of up to four plants and, since each cycle lasts four months, one could feasibly grow up to 16 plants every year. That is a lot of marijuana. I am not sure how one single person could possibly use that much marijuana.
New legislation often means new restrictions, therefore police and law enforcement must be given the tools they need to enforce them. For instance, the restriction on the number of plants in a dwelling-house, and the management of seized cannabis plants.
You talked about how organized crime has infiltrated medical marijuana cultivation. Moreover, we have been told that the criminal underground has made inroads into the recreational marijuana market.
You also referred to prohibiting the possession of homegrown plants, and you made a number of recommendations.
How will police go about enforcing this legislation? It is somewhat tantamount to everyone going 120 km an hour on the highway when the speed limit is 100. Will police officers demonstrate some level of tolerance given that enforcement will be virtually impossible?
Mr. Harel: I’ll invite Deputy Chief Mike Serr to add to my comments.
As we mentioned in previous consultations, the CACP favours a step-by-step approach. That is why we recommend banning personal cultivation based on the premise that it will be easy for Canadians to get their hands on marijuana for recreational purposes by way of a reliable distribution network.
We do not see the need to grow plants at home given the many complications it involves. We believe that there is a legislative gap in the bill because no where does it state what the maximum lawfully possessed amount in a dwelling-house will be. For arguments sake, possession of 30 kg of dried marijuana in a dwelling-house would be permitted. Were you to ask me what approach law enforcement will take, I would respond that their job is to enforce the law. That said, they must do so not only by taking into account their own priorities, but also the seriousness of the crimes.
To begin with, the possession of a few extra plants in a dwelling-house will not necessarily constitute a top priority for police. Secondly, on the matter of what will become of the plants, a number of return of property provisions stipulate that property must be returned in the same condition as it was seized. This would apply when a remission order is issued following legal proceedings. Will marijuana plants have to be maintained for the duration of any legal proceedings? We are calling for amendments to the bill because, for the municipalities and provinces, this would amount to a huge expense. That is the rationale behind our recommendations. I do not know whether that answers your question.
Do you want to add something to that, Mike?
Deputy Chief Mike Serr, Co-Chair, Drug Advisory Committee, Canadian Association of Chiefs of Police: Thanks, chief. The only thing I would add is that, as we’ve stated, home production is a serious concern of ours. We do believe there will be enough cannabis available once legalized that home production is not necessary.
As Chief Harel stated, that there is no limit to the amount of cannabis a person can possess at home is very challenging for law enforcement. We see this as an opportunity where a large quantity of dried product may be at a residence for distribution illegally, and it poses challenges for law enforcement to try to enforce that and prove knowledge of that being an illegal product.
For consideration, a typical marijuana or cannabis plant will produce one to three ounces, so with four plants, that would be, on the high side, twelve ounces of production, so we certainly would want to see that as a guiding principle for what would be allowed for storage at home.
Senator Dupuis: Chief Harel, my question is in regards to the third topic you cited as a source of concern for your association: organized crime. I would like you to elaborate on the point you made in the second paragraph on page 4 in the French version of your brief. The task force raised concerns that designated persons who produce cannabis for medical purposes would become gatekeepers of a sort to the underground market. Can you elaborate on this?
Mr. Harel: In terms of data or prevalence?
Senator Dupuis: Yes.
Mr. Harel: I do not have precise figures. Perhaps the Deputy Chief can elaborate. According to an RCMP report, there have been actual cases of medical marijuana products being channelled through to the black market. In other jurisdictions, such as Washington State, the two systems were quickly merged in order to avoid confusion. That is why we recommend considering the possibility of doing away with the medical regime or, alternatively, incorporating it into a single regime specifically to avoid confusion.
Senator Dupuis: Incidentally, do you have any data on cannabis being imported on the Internet or via the dark web?
Mr. Harel: I can tell you that pretty much everything is sold over the dark web, including cannabis, weapons, and hard drugs. We even see this happening in Gatineau. Police forces across Canada are acutely aware of the use of the dark web for all manner of trafficking, including of cannabis.
Senator Carignan: There are a number of grounds in my opinion supporting the prohibition of in-home production. I discussed these with the previous group of witnesses. The notion of what constitutes a dwelling-house is vague: private residences, their adjoining grounds, rooming houses, blocks of 200 units, retirement homes... not to mention how many plants can be grown in the backyard. There are a number of factors to be considered. One factor stems from the bill itself, and that is a ban on the use of organic explosive compounds used to extract concentrates. Could you please tell us about any potential hazards?
I have previously given the example of a house, close to my home, in Mirabel, that exploded during an attempt to extract cannabis distillates. One of the instigators died. The perpetrator acted at his own peril, however the occupant of the neighbouring dwelling was injured.
Could you please elaborate on the inherent risks? How do you intend to tackle the issue of homegrown cannabis?
Mr. Harel: We are grappling with two scenarios. The first of which is where in-home production is lawful, meaning that a large quantity of cannabis will be present in a residence. Wax is produced, and the active resin is extracted by using highly volatile solvents that are hazardous to handle. I attended a number of presentations in Colorado where several casualties have been reported over recent years when homes have exploded.
All of these products are legally available. They are not prohibited. Engaging in such activities, and using chemicals like these in order to produce resin, constitutes a danger to public safety, not only for the person engaged in the activity itself, but also for the neighbouring area. Is very difficult for the police to crack down on such practices simply by virtue of the fact that they happen behind closed doors, and that people are able to stockpile, and keep in their possession, substantial quantities of cannabis. It is a challenge. It is crucial that Canadians be made aware of this dangerous practice of producing resin using highly volatile chemicals, and it must be prevented.
Senator Gold: My understanding is that Bill C-45 actually outlaws the use of these dangerous solvents in the production of cannabis-derived products. That’s a step in the right direction, I would have thought.
I also was not surprised but interested in hearing your observation that the ongoing delay of this bill would actually compromise your colleagues' and the forces' ability to get on and do the job as well as you do and as best you can.
Given your experience on the streets and that of all of your colleagues, can you give us a sense of what the impact in your experience has been of the criminalization of marijuana on ordinary users? I’m not talking about the street gangs or the dealers, but what do you see as the impact of the current regime of prohibition on users, and what is the impact on the deployment of your own forces in having to deal, even as you exercise your discretion, with simple possession matters?
Mr. Stamatakis: In terms of dealing with some of the issues related to home grows that my colleague has talked about, our response from a practical perspective is going to be that we’re not going to respond. We don’t have the capacity to respond. It will be a reactive response based on somebody in the community calling the police and asking them to intervene. Even then, from a capacity or prioritization perspective, officers will probably use their discretion to not take enforcement action because we just don’t have the ability to do that.
Senator Gold: Excuse me for interrupting. I wasn’t clear in my question. I’m interested in your experience now under the current regime. You have testified helpfully about what you think the impact will be with the passage of Bill C-45. It’s a mixed blessing, I think. We have heard you clearly about the resources you would need. But as the law stands currently, what is the impact of criminalization on the people your colleagues deal with on the street? Not the dealers, but just the users that are caught up in this criminal activity.
Mr. Stamatakis: I would say we’re doing the same thing now. From the perspective of the average police officer strictly dealing with a law-abiding citizen who is not involved in any other kind of more serious criminal activity or public risk behaviour, our members are not going to charge that person with simple possession of marijuana. There may be some exceptions to that, depending on jurisdiction or other circumstances or context, but generally speaking, we are not dealing with simple possession issues in communities from a front-line policing perspective. Chief Harel might have a different view.
Mr. Harel: As Mr. Stamatakis just mentioned, it’s not a priority. It varies through jurisdiction the way that simple possession is dealt with. We all know, understand and see the statistics of the reality of people consuming cannabis. Obviously, for us, it’s not a priority. But I understand from your question that, if an officer, when he intervenes with someone legally, finds marijuana and it’s illegal, depending on the amount or the circumstances, he can use his discretion not to charge, which is a reality right now in a lot of cases. But, in some cases, he could charge a person, and then there are the criminal procedures that are engaged. It’s still illegal right now so we still have to apply the law, but we use our judgment and our discretion in different areas.
Mr. Stamatakis: So the dilemma now and this confusion is, for example, if you look at 420 demonstrations or the fact that, recently, at my home service, we had part of our community where people were openly selling marijuana to anyone that would pass by. They created their own illegal open market for marijuana. The confusion is that you’ll have one person saying, “Why aren’t you enforcing the law and arresting this person for simple possession?” Then you have the police officer saying, “It’s a 420 demonstration. There are thousands of people here. How are we going to enforce any law? If we do, that might create a bigger public order issue.” We’re caught in this really confusing place where people think, “Oh, it’s going to be legalized, so it’s okay to do it.” In the meantime, we’re still required to enforce the law. We have other citizens saying, “Why aren’t you doing that?” So, frankly, from a policing perspective, let’s just move forward and create really clear, unambiguous rules for everybody, both for the police in terms of what their enforcement obligations are but also for citizens in terms of what their responsibilities are. I think we’d be in a better place than we are right now with this really confusing environment that everybody is operating in.
Senator Boniface: Thank you very much for being here. I always appreciate your perspective. I’m interested in following along with the homegrown and the experience from medicinal marijuana. I know that there have been some issues in my home province around that. I’m wondering if your position on homegrown is a reflection of what you’ve seen on the medicinal side and if can you tell us whether there is any aspect to that. I’m happy to hear from the deputy.
Mr. Harel: Maybe I could ask Deputy Chief Serr to answer this one.
Mr. Serr: We have certainly seen issues with the medical regime, especially with designated producers. We have seen organized crime infiltrate the medical regime, and we have seen large-scale overproduction and sale of that marijuana. That is a primary concern of ours, and that is why we are advocating that the medical regime and the legal regime be combined to try to eliminate and disrupt the black market. It does have a foothold that we know of in the medical regime, especially in growing medical marijuana. That’s a huge issue for us. We certainly want to ensure that they don’t have a foothold or get any foothold into being licensed producers or into the legal regime. That remains a serious concern of ours.
Senator McIntyre: Thank you for sharing your concerns regarding Bill C-45. You have already answered a number of my questions.
Gentlemen, it is my understanding that officers of the peace, inspectors, and other public officeholders will receive training regarding the enforcement of offences, and the application of other provisions set out in Bill C-45. My question is: which level of government will be responsible for this training? The federal or the provincial government?
Mr. Harel: We have been collaborating for some time now on a project with Public Safety Canada, the Royal Canadian Mounted Police, and the Canadian Police Knowledge Network. The CACP has been working on this initiative to provide training across all of Canada's police services, both in English and in French.
Furthermore, at a provincial level, the provincial colleges, including the École nationale de police du Québec and the Ontario Police College, have been tasked with developing and disseminating this training. A national committee was struck, and is currently working on ensuring that adequate training will be available once the legislation has been enacted.
Senator Pratte: I think my question would be better addressed to Deputy Chief Serr. It concerns the absence of limits for dried cannabis in households. When we asked questions to government representatives, they told us that one of the reasons they did not set such limits was because they believed it would be unenforceable, one of the reasons being that people would rapidly transform dried cannabis into edibles and oils and whatever. Therefore, it would be difficult for police officers to determine the exact quantity of dried cannabis transformed from the plants. It would be difficult to determine the exact quantity that would be in a household. If you believe that it’s difficult to enforce the number of plants in a household, obviously it would be even more difficult to determine the exact quantity of dried cannabis that comes from the plant, I suppose. Any comments about this?
Mr. Serr: Yes. Certainly, from our perspective, having zero limits is going to be incredibly problematic. Someone could store, as Chief Harel mentioned, 30 kilograms. It could be from another illegal marijuana grow operation and could be in transition to be illegally sold on the street. There is nothing that a police officer, right now, could do, should they have information about a large amount of cannabis being stored at a residence. So, if the intended goal is that it’s being grown for personal consumption, having no limits certainly does not meet the goal of just having personal possession. For law enforcement who were to come across information or come across a residence and see large quantities of that, we need the ability to enforce that. That’s why we think it’s incredibly important that there be some limitations on the amount that a person can possess, in line with what a person would reasonably be able to produce on their own with four plants.
Senator Pratte: If you came into a household, or got a warrant and got into a household, where there was a very large quantity of dried cannabis, wouldn’t you generally also have other indications that this person was trafficking and, therefore, without even a set limit, be in a position to charge that person?
Mr. Serr: Well, we would have to show knowledge. Certainly I think it’s more challenging for us if we don’t have set limits. If someone does have more than perhaps — let’s use the three ounces — 12 ounces at home, we would be forming the opinion that they have possession for the purposes of distributing that cannabis. But, again, without having those limitations in place, it really puts more work on the police officers to prove knowledge, to prove the intent, because they are allowed to have as much cannabis as they would like in a private dwelling. So putting some limitations or restrictions would make our job easier and would assist us.
Again, one of the stated goals of this bill is to disrupt organized crime. We know that there are over 300 organized crime groups involved in cannabis distribution and production. It’s a $7 billion a year industry. This is a huge issue. Organized crime will not just walk away from this issue, so any tools that we can be given, in law enforcement, to disrupt organized crime will be important to us. Like I said, when we’re seeing cannabis coming from an illegal place and large volumes stored in a residence for distribution into the black market, we need some additional tools to assist us in disrupting that.
Senator Batters: Thank you, all of you, for being here.
Chief Harel, tell us more about how the Canadian Association of Chiefs of Police strongly advocates against homegrown marijuana since you only just had a brief time in your opening statement to discuss it? I know there were a few questions about. What I would like you to focus on is the impacts that having four plants per household could have on youth.
Mr. Harel: We know that one of the objectives of the bill is to provide measures for the regulation of cannabis in order to protect youth. Again, we are aware that in-home production is an issue. And yet, we know that a large number of people are demanding this right.
We recommend a step-by-step approach, and the provision of an adequate distribution system, which would make cannabis accessible to those who wish to use it. We are calling for a prohibition on homegrown marijuana, as it would expose more youth to cannabis. It also carries a risk of accidental consumption or involuntary intoxication for even younger minors.
Senator Batters: Mr. Stamatakis, I am glad you spoke about this a little bit. It is already the case that currently police officers do rarely charge people for simple marijuana possession. Can you just emphasize that a little bit more, because I think some people have thought that we have a system where possession charges are rampant in this country, and that simply is not the case.
Mr. Stamatakis: No, that’s not the case from my experience. I know that many people use outcomes from criminal proceedings to support the claim that police are rampantly charging people with possession. I would argue that typically, if the outcome is a possession charge, it’s often as a result of a plea deal or some other circumstance.
Back to the home grow situation, if there aren’t limits, yes, sure the police can gather evidence to recommend a charge of illegal distribution or trafficking, but it’s just more work. It’s more administrative obligation, more costs, more reallocation of resources away from other public safety priorities. So again ,I go back to what I said earlier about let’s have some clear, unequivocal rules that everybody can follow and so that we all understand what the rules are and avoid this conflict between the police and the public, particularly, as we say in this country, that engagement of the police in a positive way with the public is important, and public confidence in policing is important. So let’s not create legislation that undermines those two very important priorities for all Canadians.
Senator Batters: Exactly. Clear and unequivocal would be the key here, I would say.
Senator Eaton: In the Canadian Police Association paper on the legalization of recreational use of marijuana, one of your recommendations is for edibles and even for a joint, if I went to the store and bought it, to implement maximum levels of THC per serving or however they want to sell it. That doesn’t seem to be clear in the bill. Do you have any recommendations as to how toxic or how strong each serving should be?
Mr. Harel: I will answer briefly and maybe ask Deputy Chief Serr to add any comment. On the edible, a year after the legislation of cannabis, edible will be dealt with legally. It’s still illegal.
Senator Eaton: If I go into a store now and I want to buy some to make rolled joints, should there be a level of THC?
Mr. Harel: A maximum level?
Senator Eaton: Yes, a maximum level in the product I’m buying?
Mr. Harel: I’m not a toxicologist.
We are seeking clarification regarding the manner in which THC levels would be indicated on all product labels. Indeed, toxicologists could provide input as to maximum recommended thresholds for cannabis cigarettes. When it comes to edibles, we are focusing on what other jurisdictions have observed, which includes extremely high THC levels.
Senator Eaton: Especially in Colorado.
Mr. Harel: People have gotten severely intoxicated by consuming small candies. Edibles must not fall off the radar screen. At some point, they will have to be regulated. This is inevitable, as they are gaining in popularity among our neighbours to the south. Edibles will have to be highly regulated, and the subject of extensive awareness building campaigns, in order to prevent edibles-induced intoxication.
The Chair: Do you want to add some comments to the answer of Chief Harel to the question of Senator Eaton?
Mr. Stamatakis: I could just add that I don’t think it’s up to the police to determine what those levels are.
Senator Eaton: It’s just because it was one of your recommendations.
Mr. Stamatakis: The broad concern is that people should know what they are buying. From a policing perspective, if there is no regulation or constraint around levels of toxicity, then it creates another public safety issue. In the experience in some of the American states where they have legalized marijuana and edibles are widely available, initially at least —
Senator Eaton: That was one of the recommendations from Colorado. Can I have one more fast question?
The Chair: In a second round. I still have Senator Sinclair, and time is going by quickly.
Senator Sinclair: I want to go back to Chief Harel’s comments in his presentation relating to the concern about criminal organizations getting involved as growers in the industry. Your suggestion is there should be something in the bill that addresses the issue of ensuring that criminal organizations are not involved as licensed growers. I think we generally agree with that. The challenge that we have is how do you think that should be regulated? In what way? Considering the possibility, for example, that they might simply invest in investment funds or hedge funds in tax havens and therefore the ownership of the money that is being invested might be hidden through the tax haven rules, how do you think that should be regulated in Canada, if the growers are going to be licensed?
Mr. Harel: The insinuation of organized crime into the legal economy is nothing new, Senator Sinclair. As far as combating organized crime is concerned, law enforcement has observed that organized crime reinvests the proceeds of its illicit activities in the legal economy. Major investigations necessitating significant resources, and the involvement of numerous stakeholders, including the AMF, and organizations engaged in financial oversight, are the order of the day.
We are recommending, to the greatest extent possible, that those directly involved in production, including, proprietors, collaborators and investors face restrictions across the production line.
Having said that, I am aware that this illegal money is reinvested in the legal economy. That is why this issue cuts across so many areas, and not just the cannabis market per se.
Senator Boisvenu: It is clear that in any market driven economy, successful businesses offer up low-cost products, and are trailblazers. They have developed their network and their clientele. Ontario will develop 14 outlets by 2020, so over the course of the next two years, and Quebec will open 15. In the case of Quebec, if you do the math, there are 1,500 municipalities of which only 15 will be serviced by the government, which begs the question: will it give organized crime an opportunity to break into the market, and get a foothold in places where the government is absent? In locations where the government decides it is ready to open new outlets, organized crime will have already established a presence.
Mr. Harel: Senator Boisvenu, I am not an expert on market share. Nevertheless, this is a major concern. Accessibility must be born out of a strong distribution network that is able to steer people away from the black market; however there are certainly people far better versed than me in the art of establishing market presence.
Senator Boisvenu: Will this not make your job all the more difficult?
Mr. Harel: We want to explore all possible avenues for squeezing out organized crime to the greatest extent possible.
Senator Carignan: My next question has to do with trafficking by mail. We observed in Colorado, especially in areas along the border, widespread searches and seizures of packages, which is something that has increased greatly over time.
How are you keeping a lid on this problem? It will only become more widespread with the passage of this legislation because businesses will engage heavily in e-commerce. How will you intercept packages containing cannabis sent by mail?
Mr. Harel: Senator Carignan, may I refer you to a resolution passed by the CACP that has been in effect for a number of years? Under this resolution, we have been calling for the Canada Post Corporation Act to be amended since police officers are not able to intercept packages in transit even with a search warrant. Packages must be delivered prior to any action being taken on our part, and that complicates our job no end.
Many items are illegally shipped by various mail carriers, and law enforcement agencies have had to come to terms with this fact as they attempt to detect and intercept illicit packages. The array of items shipped also constitutes a security concern that requires further scrutiny and the development of tools to regulate shipments, verify their contents, and determine whether they are illicit.
Senator Boniface: In follow-up to Senator Sinclair’s question around organized crime and how to keep them out of the business, so to speak, do you think there are lessons we have learned from the gaming industry coming into Canada in various provinces that would help inform how that could be done?
Mr. Harel: Lotteries, racing and liquor are largely provincially regulated, which makes oversight easier and more stringent. When the private sector is subject to stringent rules and regulations, powers to revoke may be granted upon inspection. Municipal and provincial regulatory regimes, when aligned with federal regulations, foster an environment where distribution and retail networks develop in accordance with stringent safeguards that protect the public.
Senator McIntyre: Mr. Harel, you have shared with us the concerns law enforcement has regarding the seizure of plants, and the issue of compensation. If I understood correctly, your concerns have to do with the return of property provisions, which seem to require of the police that they be able to maintain, and return, cannabis plants that have been seized. I confess that I find this quite disconcerting.
Mr. Harel: Under the current iteration of the legislation, we are seeking a special exemption for cannabis plants. It may not have occurred to you, but police services are responsible for seized property. Now, for arguments sake, were the court to order the return of the seized items, will there be an expectation that Canada's police forces maintain the cannabis plants or provide compensation for the loss of said plants? This is hugely problematic for Canada's municipalities and provinces, as it comes with a very steep price tag.
Senator McIntyre: The police service is not a storage facility.
Mr. Harel: It certainly is not. Moreover, it raises a number of health and safety-related issues.
The Chair: May I come back to your brief at page 4? This question has been raised earlier by my colleagues. I will read it:
We also ask the Federal Government to enact strict security clearance requirements that would safeguard against criminal organizations becoming licensed growers as has been observed in the medical marijuana regime.
In fact, your text should read “enact stricter security clearance requirements” because the requirements or the clearance regulations that have been applied for the medical marijuana regime have been shown to be not sufficient to prevent organized crime from moving into the domain of legal medical marijuana sales.
In fact, should we not be concerned about having much more vetting of companies that require a licence to grow marijuana because, according to the past experience, it was not sufficient, in fact, or tight enough, to prevent organized crime from moving in.
Mr. Harel: Deputy Chief Serr could add to this. That’s why we are asking both regimes to be merged together. There is some disposition in the therapeutic cannabis medical regime where people can grow for others, and that’s one concern that we have. Deputy Chief Serr, could you add to the question?
Mr. Serr: We absolutely are asking for enhanced security checks. We are also advocating that we need to have it on an ongoing basis. There needs to be routine audits of those who are involved in the industry to ensure that organized crime and their money is not infiltrating the system. That needs to be on an ongoing basis. There certainly needs to be resources in place to ensure that that happens. Because if there is an opportunity or if there is not enough regulations, they will find a way to get into the system.
The Chair: Mr. Harel, in response to the question asked by my colleague, Senator Dupuis, you referenced a study conducted by the Royal Canadian Mounted Police regarding the manner in which organized crime has infiltrated the medical marijuana market. Could you please forward this study to us, if it is not too much trouble?
Mr. Harel: I believe that the document you are referring to has already been made available following an access to information request. All the same, I will double check with my RCMP colleagues and see if I can somehow get the article to you.
The Chair: Thank you very much for your contribution, Mr. Stamatakis. It is always a pleasure to welcome you. Chief Harel, thank you. Deputy Chief Serr, thank you so much for being available.
(The committee adjourned.)