Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 42 - Evidence - May 2, 2018
OTTAWA, Wednesday, May 2, 2018
The Standing Senate Committee on Social Affairs, Science and Technology, 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 3 p.m. to continue the study of this bill.
Senator Art Eggleton (Chair) in the chair.
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
Before proceeding any further, I would call on Senator Seidman.
Senator Seidman: Thank you, chair. I would like to propose, in honour of our colleague Gord Brown, that we have a minute of silence to remember him, honourable senators. Thank you.
The Chair: Please stand, then.
Honourable senators then stood in silent tribute.
The Chair: For those who are watching us on television, Gordon Brown was a fellow parliamentarian who passed away suddenly this morning. He was the Member of Parliament for Leeds—Grenville—Thousand Islands and Rideau Lakes.
Thank you for your suggestion, Senator Seidman.
As is our custom, we will go around the table and introduce ourselves.
Senator Seidman: Judith Seidman from Montreal, Quebec, and deputy chair of the committee.
Senator Poirier: Welcome. Rose-May Poirier from New Brunswick.
Senator Pate: Kim Pate from Ontario. I am sitting in.
Senator McCallum: Mary Jane McCallum, Manitoba. I am sitting in for Senator Wanda Elaine Thomas Bernard.
Senator Galvez: Senator Galvez from Quebec. I am sitting in for Senator Petitclerc.
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Bernard: Senator Wanda Thomas Bernard from Nova Scotia. I am here.
Senator Campbell: Senator Campbell from British Columbia.
Senator Deacon: Marty Deacon, Waterloo, Ontario.
Senator Raine: Nancy Greene Raine from B.C.
Senator Omidvar: Senator Omidvar from Ontario.
Senator Sinclair: Senator Murray Sinclair from Manitoba.
Senator Munson: Senator Munson from Ontario.
The Chair: Bill C-45 is the subject of our meeting today, as it has been on a number of occasions and will be for a while. It is an Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts.
Today, we have three panels. On the first two, we will be welcoming our colleagues from other standing committees that have been examining parts of Bill C-45. The third panel will be a lot of lawyers: the Criminal Lawyers’ Association, the Canadian Bar Association and the Barreau du Québec.
I want to welcome our colleagues, the Honourable Serge Joyal, who is chair of the Legal and Constitutional Affairs Committee, and deputy chairs Senator Pierre-Hugues Boisvenu and Senator Renée Dupuis, who are in front of us.
All three of you together have 10 minutes to make your presentation.
Hon. Serge Joyal, P.C., Chair, Standing Senate Committee on Legal and Constitutional Affairs: Thank you, Mr. Chair. I will jump in immediately since we have little time for each of us.
I want to remind honourable senators that the reason we are here this afternoon is because originally I was one of the chairs of committees that expressed deep concern about the aspects of the bill that pertained to the Legal and Constitutional Affairs Committee — that is, the aspects of the bill that have an impact on the Constitution, which is the responsibility of the province and the federal government in relation to the implementation of the objective of the bill. The second is, of course, the sections of the bill that pertain to the Criminal Code. More specifically, we addressed sections 2, 8, 9 and 14 of the bill. That was the slice of the pie that was attributed to us.
Some other subjects will be dealt with by other colleagues that you will have the opportunity to hear this afternoon.
On the whole, we heard 39 witnesses — 39 experts — coming first from the level of the provinces who were interested. We heard from the Minister of Canadian Relations from the Quebec government on the section concerning cultivation of cannabis plants at home or in a dwelling, as the bill terms it.
We also heard from representatives from the municipalities because, as you know, municipalities will have to deal with the regulations in the public places, parks and everywhere. And, of course, we heard from police forces because they are responsible for implementing the sections of the bill that pertain to the Criminal Code. As you know, cannabis is still a dangerous product and is still submitted to a lot of regulations and sections of the code. Organized crime is still in the business. We heard that it will continue to remain in the business, even though one of the clear objectives of the bill is to address this issue.
We heard from the RCMP that 50 per cent of the market is in the hands of organized crime. We also heard that there are all kinds of ways for organized crime to organize itself in the new context of legalization. That is why there are observations in the report we circulated today that pertain to that.
We also sat for seven meetings like the one that you are having today. For seven days we held meetings and we received briefs from various groups and interested persons .
On the whole, we have eight unanimous recommendations, and I insist on unanimous. There was a real consensus. In other words, we had ample time to debate among ourselves the conclusions that we all share. It is an important factor that I want to stress today.
We have one recommendation that has the support of a majority of senators and seven recommendations that are supported by a minority.
We have three unanimous observations — again, unanimous; it is important to stress that — one with majority support and seven with minority support.
I will leave my colleagues Senator Dupuis and Senator Boisvenu to address some of those recommendations, but we will be open to answering your questions later.
I hope I have maintained the time frame in which we are invited to share our thoughts with you this afternoon.
The Chair: Only three minutes and 45 seconds.
Senator Joyal: Thank you. I am happy I met the target.
Hon. Renée Dupuis, Deputy Chair, Standing Senate Committee on Legal and Constitutional Affairs: My thanks to the members of the committee for receiving us. You had the opportunity to read the entire report. I would like to go back to a number of things that came out of the information we received during our hearings.
First, the long prohibition period since 1923 has not prevented the consumption, sale, production or distribution of cannabis. Second, people have been going to court since the 2000s. The courts agreed with those people that the prohibition prevented them from alleviating their physical and mental suffering and violated their rights under the Canadian Charter of Rights and Freedoms. This has led the federal government to allow people to use and grow cannabis at home or through a designated person for medical purposes, as long as a physician provides a medical document supporting the request. It is important to note that this is a medical document, not a prescription, since cannabis is not considered medication.
According to the government, the current situation is untenable, because, first, cannabis has been produced for decades without quality control. Second, illicit annual revenues, estimated at $6 billion at least, are concentrated in the hands of organized crime. Third, the legal market for medical cannabis is vulnerable to organized crime activities. Fourth, the scientific evidence on cannabis, especially the correlation between cannabis use and certain diseases, and also the correlation between cannabis use and the relief of certain diseases or suffering, is not established to date.
From all the testimony I have heard, I first identify the need to conduct a public information campaign for young people, parents and educators about the dangers of cannabis, especially but not exclusively for young people. Second, there is a need to fund research, which is inadequate right now. Third, it is important to closely monitor the use, but also the production, distribution, and sale of cannabis, and the impact of Bill C-45 on reducing or not reducing production and illegal sales by organized crime. Fourth, it is important to recognize the authority of the provinces and territories to legislate in order to authorize or prohibit the possession, cultivation, propagation and harvesting of cannabis in designated places. Finally, fifth, we need to ensure that the youth criminal justice act on cannabis is enforced to provide for alternative measures and, most importantly, to ensure that young people are not subject to harsher penalties than adults under Bill C-45. Thank you.
Hon. Pierre-Hugues Boisvenu, Deputy Chair, Standing Senate Committee on Legal and Constitutional Affairs: Thank you for the invitation. I would especially like to draw your attention to the recommendations that I would call “minor,” from the official opposition, the Conservatives. Those recommendations pertain to social issues, which are part of your mission. I am addressing the unanimous recommendation of the police: the prohibition of marijuana production at home for various reasons. First, it is about ensuring home safety and child safety, and avoiding the sale of the product on the grey market. The majority of committee members supported that recommendation.
I would also like to address the issue of age in terms of consumption or sale. We know that the government is advocating for the age of 18. The majority of committee members did not accept the recommendation to raise the age to 21. This recommendation was made by all Canadian and Quebec doctors, especially psychiatrists, according to whom, it is safe to use cannabis at the age of 25, and age 21 is a compromise. According to doctors, the age of 18 is a major health hazard. That’s why those doctors recommended the age of 25.
Another issue raised is the consumption age according to the THC. Right now, no level of THC rate is prescribed in the legislation. A level needs to be recommended. According to psychiatrists, the risk of developing psychiatric disorders is high between the ages of 18 and 25, depending on the level of THC. Therefore, marijuana sold to 18- and 19-year-olds must have a lower THC level than that sold to young people aged 25 and over, since the risk decreases with age.
In addition, we recommend that the deadline for the passage of the bill be extended. The Standing Senate Committee on Aboriginal Peoples recommends that adoption be postponed for one year. This recommendation was made by all police forces. We note that the police will not be ready to properly handle the use of cannabis, especially when it comes to driving. Police forces will not have the necessary equipment and training either in July or September. When we see what happened in Colorado or Washington, where the death rate from cannabis increased by about 20 per cent, we demand that the legalization be done in parallel with the police forces’ ability to ensure road safety.
Professor Brochu, from the Université de Sherbrooke, also made a recommendation regarding advertising. The bill already deals with restrictions and the promotion of cannabis products. We feel that we need to go further in terms of advertising to young people, because they are the ones who are the most vulnerable in terms of consumption. Professor Brochu is of the opinion that there must be a complete ban on the promotion of cannabis inside and outside the walls of places where the product will be sold.
We believe that your committee must think about those recommendations, which deal with the protection of youth and road safety as well as social cohesion. In fact, the Building Owners and Managers Association is of the opinion that marijuana use will lead to social problems, and that it will be difficult to manage consumption both inside and outside homes, especially on patios. These are the minor recommendations that we are proposing, and we hope that your committee will take a look at them.
The Chair: Thank you. Now questions from senators. I have a number on the list. Today we have more senators than we normally have. I think we can try the five minutes, our usual practice, and see how far it goes.
Senator Seidman: Thank you, colleagues, for your presentation.
I want to address my question to you, Senator Boisvenu. I know these are important issues, and I know your committee has deliberated, and I am speaking to all three committee members. You have had a lot of hearings. Your report will be important to us and to our final report to the Senate. First, I want to tell you how much we appreciate that and thank you all, and all the committee members, for the work you have done.
Senator Boisvenu, I would like to ask you specifically because you referred to it in your presentation. The Canadian Association of Chiefs of Police, the Canadian Police Association, the Quebec federation of municipalities, the President of the Canadian Federation of Apartment Associations and Dr. Benedikt Fischer from CAMH have all expressed serious concerns with the right to home cultivation of cannabis.
Could you tell us a bit more about what you specifically heard from those witnesses? Could you also make reference to what you heard from the Quebec Minister Jean-Marc Fournier, who I believe told your committee that Bill C-45 should be clarified to state that the provinces should have the right to prevent home growing of cannabis? There is provincial authority there. There are a couple of important issues there.
Senator Boisvenu: You are referring to many aspects. First of all, Minister Fournier appeared before the Senate to say that the federal government has the power to legalize, but that the provinces have the power to regulate. So that is why Quebec has a law to legislate consumption, sale and production. According to him, production in the home falls under the social domain. So the provinces have the power to legislate on this issue. He also said that there will be legal sales outlets for marijuana, so people will have no reason to grow it at home, which will be less of a health risk to children and citizens in general. We know that the bill will allow the production of cannabis oil. For all those reasons, Quebec has banned home production.
In addition, the police are wondering how they will manage to control the cultivation of five or six plants at home. This is a problem that the police have brought to our attention. This is also the problem with the grey market developing, where people sell this product among themselves. We can talk about quality too. So, in that sense, the police were clearly opposed to home production. The main point is that we do not have the resources to control Canada’s 10 million homes that could potentially produce marijuana.
Senator Seidman: Yes, I would. I think this was a majority recommendation. Is that right, Senator Joyal?
Senator Joyal: Yes. It was the first recommendation that got the majority support of the committee. I think the Quebec minister has been very convincing. I invite you to read his brief. I think the brief really, in my opinion, targets the essential issues.
The minister stressed that the objective of the Quebec government in banning the cultivation of four plants was that the cultivation of four plants is not in a position with the purpose of the bill. The purpose of the bill, I should say, is twofold: health and organized crime.
If you take an initiative that led you to conclude that in the first phase of the new regime you go step by step, first by legalizing it, but also organizing the access through government stores or through a distribution network that is under government supervision, you ensure that the danger and the limited access that you want to reach with the bill, which is to prevent youth from having access to it, would be better met by restricting the access first to the public distribution network.
The minister stressed that after three or four years they will review the legislation and the impact of it, and they would be open to reconsidering it. As a first step, that would be their approach in terms of public policy.
Senator Munson: Thank you for being here. Sometimes I feel it is Groundhog Day all over again, because we come into the month of May, we have a break week in May, and we are supposed to have this done by June 7. Then it is supposed to go to the House of Commons, and I would expect they will reject many of the amendments.
This is not tinkering, when I take a look at it. From our committee, Social Affairs, we will have amendments. We have already seen that the Aboriginal Peoples Committee has recommended a delay. You have five amendments here and we haven’t heard from Foreign Affairs and Defence yet.
We seem to always come to this crossroads, this political road. Senator Joyal, is it really feasible that we will be able to amend this thing, have the amendments accepted and get this done by July 1, or are we looking down a longer road because of the many, many concerns we have heard at all committees?
Senator Joyal: Let me say first that the Standing Senate Committee on Legal and Constitutional Affairs has been studying the issue of cannabis since January because we started with Bill C-46 and we have had many hearings — I have not counted them, but at least 10 or 12 hearings on Bill C-46 that essentially dealt with the impact of smoking cannabis and driving.
There are all kinds of other issues related to that, cannabis consumption at work and whatnot.
We have been the committee, in fact, of the Senate that has had the longest exposure to cannabis. We will be completing our study of Bill C-46, we hope, in time for the Senate to have a package of considerations of all the landscape of it.
There is no doubt that we were under constraints, our own committee. We had to report for May 1. I thank my two colleagues here. I tabled the bill at 11:30 last night. I spent the whole evening correcting, with the support of my two colleagues, the last draft to make sure that the product was presentable to you.
There is no doubt that we had a time constraint that doesn’t allow us today to give you the legal text that would enshrine the eight recommendations you have as being unanimous recommendations. We don’t have that text yet to be able to distribute it to you because we didn’t physically have the time to do that. It is the same with the other recommendations that have majority support and so forth. I bet that the other committees that studied this bill are in exactly the same position as us.
I think the most important thing is that we signal to the government the preoccupations that we have heard at committee and that you will hear all along your hearings. Those preoccupations are not different than what the average Canadian has as a preoccupation, be it police forces, municipalities, educators, families or people who are responsible for mental health and whatnot.
What you find in our report is essentially a cross-section of preoccupations and concerns from all over the country in all the various aspects of cannabis in Canada because this is the first time this exercise has been conducted.
To tell you if we will be able as a whole, as an institution, to address that, I have no better comment to suggest to you than to implement the Chinese philosophy of one day at a time. Let us try to understand what we are doing as legislators, the implications carried by all of this, make proposals to the chamber, appeals to the attention of the Senate and the House of Commons, and I am sure that the government is listening as much as we do. The police forces, the provincial governments, the overall system requests more time. The government cannot force that, in my opinion, in all its wisdom. The government listens, I hope. The government is sensitive to public opinion and preoccupations that are sound and rational because they are borne and expressed by people who are responsible in their milieu.
As I say, we are bound by the date of June 7. You are also bound as a committee, I think, to report on May 26. We are certainly trying to do the most we can do within the time frame that is a straitjacket that is very tight on our body. Believe me, I feel it as any one of you would feel it. That is the most that I can offer you.
Senator Poirier: My thanks to all three of you for being here. Thank you for the work your committees have done over the last few weeks to prepare the report you have just presented. I have some questions for you.
The first question I have is a follow up to the question my colleague Senator Seidman was asking. We were talking about Jean-Marc Fournier. Can you speak to the constitutional question that Mr. Fournier raised during the hearings?
Senator Joyal: I will ask Senator Dupuis, who is also a lawyer and a professor. She can certainly express the constitutional issue that is at stake there.
Senator Dupuis: I feel your committee is like ours, and is faced with the reality of hearing a lot of things. It is an extremely complex issue, and priorities will have to be established. You will have to do it, since you will have to provide us with a report based on everything you have heard.
However, I would like to draw your attention to the fact that there is a reason why the first recommendation unanimously passed by this committee is about the need to amend the bill to specify the provinces’ jurisdiction to legislate in order to authorize or prohibit cannabis with respect to possession, cultivation and propagation in specific places.
The position that was very quickly indicated by the Government of Quebec is actually supported by the Government of Manitoba. After Minister Fournier came to the committee, the Government of Manitoba, which we had invited, declined our invitation for its own reasons. However, Manitoba has indicated that it supports the comment made by Minister Fournier, who told us that there was not necessarily a conflict in either the objectives or the implementation of the two pieces of legislation, Bill 157, which Quebec is currently discussing and which is before the National Assembly, and Bill C-45.
However, the speech made by the federal Minister of Justice before the Legal and Constitutional Affairs Committee created some uncertainty, which led Minister Fournier to insist on the need to clarify the issue, namely that the provinces have the authority to legislate in terms of the authorization or prohibition. The reason they have come to this conclusion is that they do not want to leave it to the courts to discuss, for years, or maybe even decades, whether a piece of provincial legislation, either from Manitoba or Quebec, must give way to Bill C-45.
So the issue for them is that uncertainty has been introduced by the federal Minister of Justice’s speech, and they are asking for clarification on that. According to them, in any case, the legislation will be reviewed in three years, and it is easier to be very careful at first, even if the ban is revised afterwards, than to do the opposite and give authorization from the outset, and to realize, afterwards, that there is a big problem, that people are used to a system and that we want to take it away from them.
The other factor that has led us to this recommendation, which I think is our priority, is the fact that the situation is very different from one province to another, even if, currently, there is an overall national prohibition on consuming and producing cannabis. In other words, it is important for us to leave it up to each province to establish its own system based on its own socio-economic and legal situation.
Senator Poirier: Your report recommends unanimously also that the bill should be amended to impose a limit on the quantity of dried cannabis or its equivalent that an individual is allowed to possess for personal use in the home.
Can you tell us which witnesses who testified before the committee supported this recommendation? Do you believe there are any constitutional loopholes in the proposed legislation? Have you heard any comments on what that limit should be?
Senator Boisvenu: Most police forces will not be able to enforce a law that does not mention predetermined quantities. If you enter a home where the quantity of cannabis plants exceeds the reasonable limit, you may be faced with someone who is dealing. A limit will therefore need to be established.
We had set a limit during the negotiations with our colleagues in the Independent Senators Group, but we did not reach a consensus. There is already a limit of 5 grams for minors; there should be a limit for adults too. We could go to 30 grams, 50 grams, but I think that will be part of the upcoming discussions. It was agreed that a limit was needed, and all police forces have called for it. Now we must determine what it will be.
Senator Poirier: Thank you.
If time allows, may I go on a second round?
The Chair: We can certainly put you down for a second round.
I will inject a question here, because it relates to a response Senator Dupuis gave to Senator Poirier. You mentioned the first recommendation and mentioned it in the context of Quebec and Manitoba, which I believe is relevant to the four plants issue. They don’t wish to proceed with the four plants issue.
This has wording that I want to clarify. Is this entirely about the four plants issue, or does the wording in the recommendation go broader than that?
Senator Joyal: What we were concerned about is that the day after the bill is adopted, there is not immediately a citizen that goes to court and challenges the bill because there’s uncertainty between the overlap of the provincial legislation and the federal legislation. As my colleague Senator Dupuis mentioned, unfortunately there is at present a question mark about the stand the federal Department of Justice would take to support the capacity of a province to ban the four plants. The minister said, “If there is a challenge, we will defend the federal legislation.” Fine, but then it means that you will have to go to court to spend out the whole process of first, second and third levels before there is finally a decision that a province has a capacity to ban the four plants.
The Chair: When you talk about cultivating, harvesting, et cetera, you are not talking about the licensed facilities that come under the federal jurisdiction. You are talking about the home cultivation; is that correct?
Senator Joyal: Absolutely. That’s right.
Senator Dupuis: So we are only talking about the clauses in Bill C-45 that deal with the possibility of owning or cultivating the four plants.
The Chair: Okay, thank you.
Senator Joyal: To add to that, we have been very surgical in our way of approaching this to be sure that we save the largest part possible of the federal legislation in the way we phrase it.
The Chair: Okay, I’ve got you. By the way, five minutes is the total. The shorter the question, the shorter the answer, and the more you get in.
Senator Manning: Thank you, colleagues, for your presentation and your work at your committee.
We’ve heard conflicting testimony here, as I’m sure you have heard with your committees also, in regards to many aspects of this bill. Eventually, we are going to find our way, whenever that is, to follow up on Senator Munson’s comment, to get into clause by clause.
We have a list of witnesses. Are there any witnesses that appeared before your committee that you think our committee should hear from before we get to the point of clause by clause, because that is basically the end game here? Did you hear from anybody there who maybe didn’t have enough time at your committee whom we should hear from?
Senator Joyal: In the appendix of our report you have the list of witnesses we heard. There is a capacity there for your steering committee to read first our report that gives a summary of all the witnesses we heard. It’s a summary of 10 pages, so it’s not unreadable. With the references that are attached to the testimony that we heard — the references are on the bottom — you can easily make up your mind as to which witnesses addressed an issue you think is an important priority for you.
So instead of me going through the list and dictating which witnesses, you have the list, and you have what they said in a succinct and usable form. I suggest that your steering, or any of you, go through this to identify easily which ones you should hear from. We remain available to you if you want us, on the basis of that list, to give you quick comments. We are totally available to you for that.
Senator Manning: Based on what you have heard — and we have had some testimony already today in regards to a delay. We had the Aboriginal Committee announcing yesterday. In your judgment — you are all of legal background and understand the process of what will happen once this becomes law — is it in the best interests of the country to delay this legislation?
Senator Joyal: I have my own personal opinion —
Senator Manning: I would like to hear it.
Senator Joyal: — or the opinion of the committee. I would like to point out the comments included in the report. There are observations that, I should say, speak for themselves. I have my own opinions, and I will stand up in the Senate on third reading and state them. My responsibility as chair is to ensure we work together and come to consensus. I will let my colleagues address the issue.
Senator Dupuis: The implementation of this legislation is very controversial, as is almost every aspect of the bill. We have heard testimony of all kinds. In response to questions, some municipalities said that they were not ready, that they would like to have more time, but that is not what they are interested in. They are interested in developing a clear framework to ensure that provincial and federal legislation is clear.
The Canadian Police Association has told us that the public in British Columbia is confused, because it is no longer clear how to enforce the law. They are supposed to enforce a ban, but legalization has been announced. So they have to move forward from the time of the announcement. The goals actually conflict.
Senator Boisvenu: In the report, there are three minor observations, one of which is about the workplace. From these observations, perhaps, there is an avenue to invite witnesses to explore this topic, which has been brought to our attention, but which has not been studied in detail. I am thinking of issues related to workplace safety, transparency in companies, and anything related to investments. I do not know whether you will deal with it, but right now a problem has been raised and we have not explored it with our witnesses. The problem exists in the workplace, but it may also be a very important social issue.
Senator Joyal: If I may answer Senator Manning. If you read the summary of the testimony that we have heard, this issue has been raised by witnesses, by police forces especially, and I refer you to their testimony and to the points that they have raised about why they think they need more time. It’s not just because it would be better to have six months more; they have reasons why they think they need more time to make sure they have the capacity to address the new situation.
Senator Galvez: I would like to thank the witnesses for their intensive, hard work. As we mentioned a number of times in our discussions, this is a very emotional issue for the public.
I want to know more about recommendation 7. It is the first time I see some concerns about the possibility of exporting cannabis. I want to know more of the background that led to this recommendation. The other question I have is what is the confusion about the definition of “dwelling house,” and why do we need to clarify that?
Senator Boisvenu: You’re referring to the fines?
Senator Galvez: Yes, and to cannabis exports.
Senator Boisvenu: According to the current tobacco legislation, even if we include substances such as chocolate or perfume, the maximum fine is $300,000. We wanted to align the marijuana legislation with the tobacco legislation. We would be imposing more lenient sentences for exporting marijuana than for exporting tobacco. It is simply a question of harmonization.
Senator Galvez: And the “dwelling house.”
Senator Joyal: You raised a very good question. My colleague Senator Carignan raised it as well.
The way the term “dwelling house” is defined in the bill implies not only apartments, but also possibly the land attached to them. If you live in a condo, you have your apartment, but you can also have a community garden, that is, an area shared by all owners where they can grow vegetables. There are all kinds of ways of attaching land to a housing unit.
We suggest that this concept be defined to prevent situations where people would have land that is not exactly attached to the apartment, but is located elsewhere and belongs to the condominium. All issues related to co-ownership are very important. This point was raised by both Senator Carignan and the building owner representatives we heard from.
Senator Omidvar: Thank you very much for all your work. My question is to Senator Dupuis around recommendation 7 about the bill coming into force one year after Royal Assent.
I note this was rejected by the majority. Could you provide us with some context for that decision and what witnesses spoke to this? How can you help us think into your experience of this discussion?
The Chair: Let me point out to those following this, because we talked about another recommendation 7, that this is the second grouping of recommendations, and it comes on page 11. It’s number 7 on page 11.
Senator Dupuis: So, if I understand the question correctly, it is about recommendation 7, on page 12 of the French version and page 11 of the English one.
The Chair: It’s talking about the coming into force after Royal Assent.
Senator Dupuis: I think that the title of this section illustrates why a majority of senators rejected this provision. They believe that, according to witness testimony, even if some need more time — municipalities have told us, in an answer to a question, that it could be beneficial to have more time — it is not a critical aspect to them. They primarily want the legislation to be clear. They will then be able to live with it, and pass municipal bylaws afterwards. According to the majority, the arguments have led us to the conclusion that the organizations were able to adjust to the bill as it is written, and to its planned implementation.
Senator Boisvenu: I will give you a very practical timeline for the police forces.
It is now May 2. The federal government was supposed to decide, in April, on the type of equipment that would be used to test saliva samples before resorting to blood samples. The government has yet to make this decision. Municipalities need a minimum of two months to order the equipment. This brings us to July. Furthermore, it takes two to three months to fully train the police officers who will use this equipment. The school in Nicolet can take in a maximum of 50 officers. Yet we need to train more than 2,500 of them.
The current bill therefore poses a major problem. If marijuana is legalized on July 1, it is foreseeable that, for a period of three to six months, Canadian police officers will not have the tools to properly check if people are using marijuana while driving. It is a common-sense road safety issue.
Senator Omidvar: My question is again to Senator Dupuis about studying the elements in the bill that talk about possession of 5 grams and over for young people. Could you share with us what the context of the discussion was? I actually don’t see anything in the recommendations relating to the criminalization of young people who possess more than 5 grams.
Senator Dupuis: The discussion we had was on the technical aspect of our mandate, as the Legal Affairs Committee, concerning penalties, contraventions and sanctions. Our study has led us to produce recommendation 6, adopted unanimously, that endorses the recommendation of the bar, which states that nothing in this bill should be interpreted in such a way as to limit recourse to the criminal justice system for young people, specifically any warnings, cautions or referrals. Our study also led us to produce recommendation 8, adopted unanimously, which states that sanctions provided for young people must not be harsher than those provided for adults.
Senator Raine: My question is quite simple. I would like to hear what you heard from witnesses as to a reason why it would be good to have the age limit of prohibition be 18.
Senator Joyal: It is the principle of precaution, and Senator Dupuis has mentioned it. The science is not absolutely conclusive on the impact of cannabis on one individual. It depends on the DNA of the person, the weight, the propensity you might have to psychotic tendencies or family background and whatnot.
The science has not been conclusive for very specific reasons, because cannabis was illegal and the scientific community was not free to conduct its studies. So there is an uncertainty, as Senator Dupuis mentioned, about the impact of science at many levels, and the approach taken by the psychiatric association is more or less — and this is not an argument they have used, but I put it on the table — the theological approach. If you think you are going to sin, you better not try. It is more or less the same with the doctors. If you think it might be dangerous, you’d better avoid consuming it or using it.
That’s the approach that they adopt. It is the precautionary approach that since a youth could be affected under the age of 21 because his brain development is not completed, it’s better to refrain than to consume cannabis if you don’t want to have some kind of impact on your overall mental health and capacity.
I refer you to the testimony that we had from Dr. Igartua, and we refer to it in the minutes of the report.
Senator Raine: Thank you. I understand all that, and I agree with that precautionary principle, but I’m interested in hearing whether you heard anybody saying it is good or we should do it at age 18? I don’t know where the age 18 came from because it’s there, and we are sort of now having to amend it.
Senator Joyal: It came from the consensus that generally in society when you are 18 you have the right to vote, you have the right to marry without the consent of your parents, you have the right to sign a contract under your name, you can have a driving permit. A lot of “permission” is given by society in various domains whereby we presume that an individual at 18 is totally mature. At 17, for 364 days, you are immature, and then the next day you are totally mature and your judgment is as perfect as that of any adult of 30, 40 or 50 years of age.
We have not really investigated that, to answer that aspect of your question. I presume that the fact that the government has offered for the provinces to determine the age to have legal access to cannabis in the provinces is probably to leave the provinces to make their own judgments about the level of maturity a person has to make that decision.
Senator Bernard: Thank you all for your work. I noticed in the report that you mentioned the whole issue of pre-existing criminal records for simple possession, and I didn’t see anything in your observations or your recommendations. I wonder what your thoughts were around that.
Senator Joyal: Senator, we have not really investigated that aspect at length or in depth, I should say. There is no doubt that once you have declared cannabis a legal product — and I don’t speak on behalf of the government, I didn’t speak to the Minister of Justice and I have no mandate for that, either — if you have had a criminal record, it comes under common sense that the objective is to protect the youth.
If you want to protect the youth who have the bad luck of having a criminal record, with all that encompasses today — you cannot cross the border, you cannot even fly over the United States in an airplane because you are on the no-fly list as you have a criminal record for something you did when you were young, under 18, and you didn’t know too much about the implications of the foolish decisions you might have made — the idea of addressing that issue seems to be common sense.
The government didn’t come forward with a clear commitment on that. You might have heard the Minister of Public Safety in relation to that. There have been questions in the House of Commons. But that is something we will have to address soon because the objective of the bill is essentially to prevent, especially for youth and for those who find themselves in that situation of having consumed in a context of laissez-faire. I’m not talking about someone who is a dealer and has made a living out of illegal activities. I’m talking about someone who has done it not to try to hurt anybody outside his own person.
The government will certainly have to address that, and I’m sure there will be a lot of pressure in the public opinion to come forward with a bill more or less like Bill C-66 to allow the expungement of criminal records in a way that will offer those who find themselves in that situation to clear their record and be able to have responsibilities in our society. And when you are a youth from any community and you have a criminal record over and above that, it’s very difficult to get a job.
The overall criminal system is to try and give the opportunity to someone to rehabilitate. Senator Dupuis has spent part of her life in that world, as well as Senator Pate. So it’s part of the overall humanistic approach we have of helping someone to start anew in life.
The Chair: We have time for one more question.
Senator Patterson: I have two quick questions. First of all, the Union québécoise des municipalités testified before your committee. I think they represent some 7,000 elected members and 1,000 local municipalities, and they recommended delay in the implementation of the bill. I understand that was adopted by only a minority of your committee. Could you explain in more detail why they felt it was important for them to delay the coming into force?
Senator Joyal: Again, Senator Dupuis has partly answered that question. There is still uncertainty in terms of what approach the various municipalities will take to ban, for instance, the use of cannabis in public places, in parks, where the police forces will be trained. In other words, will they have the level of professionalism to be able to maintain public order once cannabis is legal? Especially with that group of municipalities, they are the small ones, fewer than 2,000 people. So they’re really small communities with very little means to be able to address that new situation.
Sometimes they share services at the regional level. They are very different from one another. Some have only 500 citizens as their residents, so there is such a level of discrepancy among them that they are not all at the same level to address this new issue. They tried to make an average and asked for more time to be sure they will know how to cope with that.
But there is also the point raised by Senator Dupuis, which is important, and it is the certainty of regulations and the certainty of legislation. Everybody is still waiting. Maybe this will happen, maybe that won’t happen. As Senator Boisvenu mentioned, the equipment to test the drug in saliva is still in development and has not yet been certified. When will that be? Will enough equipment be available at the same time for everybody? How do you plan the training for the officers to be able to control that? You change the overall system. It is a radical change. We have to recognize this.
Seeing their reality, with the little means they have, I would think it explains that. If you read their brief, they are pretty self-explanatory on that.
The Chair: Regrettably, we have run out of time. I apologize to two senators who are not members of the committee. We got all of the members of our committee to ask their questions, but two that are not we were unable to get in because of the time constraints.
Certainly, if we end up getting attendance like this at future committee meetings, we’re going to have to get a bigger meeting room.
Thank you very much to our three colleagues for their presentation on behalf of their committee. With that, we will get the Aboriginal Committee to come in at the end of the table.
This is the second panel on our agenda today, dealing with Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts. Panel No. 2 deals with a report from the Standing Senate Committee on Aboriginal Peoples. I am pleased to welcome three colleagues: Senator Dyck, the chair of the committee; Senator Tannas, the deputy chair; and the third member of the steering committee, Senator Christmas. Welcome to all three of you. All three of you can speak, but you have to do it within a total of 10 minutes, please, and then we will go to the committee for questions beyond that. We have one hour for this panel.
Hon. Lillian Eva Dyck, Chair, Standing Senate Committee on Aboriginal Peoples: On May 1, 2018, the Standing Senate Committee on Aboriginal Peoples tabled a report outlining the committee’s findings and recommendations from its study on the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to the Indigenous peoples of Canada. The committee’s study took place between February and April 2018.
In response to witness testimony, the committee’s report includes 10 recommendations, divided into two parts. The first two recommendations are recommended amendments to Bill C-45.
The second set of recommendations are policy recommendations to the Government of Canada and relevant government departments. These recommendations were made by the witnesses but are either addressed in other pieces of legislation, not within the scope of Bill C-45, or non-legislative matters within the authority of the federal government. In the case of the excise tax recommendation, the Senate itself is prevented from making an amendment that would result in the appropriation of funds or a new taxation measure. This is an important fact to note and underlies part of our recommendation to delay the coming into force of the bill.
Hon. Dan Christmas, Member, Standing Senate Committee on Aboriginal Peoples: Who we heard from and what they said:The committee recognizes the complexity of studying the implications of the proposed legalization of cannabis on Indigenous communities. However, given the time constraints, the committee is fortunate to have heard from a wide range of witnesses. The committee’s report is informed by testimony heard over five meetings in Ottawa and one meeting in Winnipeg, as well as briefs received from organizations and individuals.
The committee heard from a diverse group of 23 witnesses, including Indigenous organizations, First Nations, Inuit elders, police forces, Indigenous cannabis industry groups and the Manitoba Advocate for Children and Youth, representing the Canadian Council of Child and Youth Advocates.
The committee’s report is organized around the following themes raised during its hearings: consultation, public education, mental health and addiction services, justice and policing, jurisdiction, and economic development.
Consultation: Indigenous communities and organizations told the committee that they were not consulted on the proposed legalization of cannabis. Where consultations had taken place, the committee heard that these sessions were inadequate, providing little opportunity for meaningful Indigenous participation.
Public education: The committee heard that Indigenous communities lack culturally specific public education materials on the subject of cannabis and its health effects.
Mental health and addictions: Witnesses, including Inuit elders, Indigenous communities and front-line service providers raised concerns about the lack of access to, and funding for, culturally specific mental health and addiction services.
Justice and policing: The committee heard about the need, due to the proposed legalization of cannabis, for proactive policing focused on prevention, but the resources and labour force are insufficient to help to move beyond crisis-response mode.
Jurisdiction: The committee heard that First Nations are in agreement that they should have the mechanisms available to them, as an essential element of self-government, to permit or to prohibit access to cannabis on their territories.
Economic development: The committee heard that some communities are interested in economic development opportunities as a result of the proposed legalization of cannabis. First Nations and Indigenous businesses and organizations proposed ways to allow for First Nations to collect and to distribute excise tax revenue charged to on-reserve cannabis manufacturers.
Hon. Scott Tannas, Deputy Chair, Standing Senate Committee on Aboriginal Peoples: Colleagues, I will address the committee’s recommendations.
The committee recommends two amendments to Bill C-45. First, the committee recommends an amendment to delay the coming into force of the bill for up to one year, to allow time for Indigenous communities and the federal government to negotiate and agree on the following deliverables: first, the implementation of a cannabis excise tax revenue-sharing regime; second, increased funding for mental health and addiction services; third, the development and funding of culturally sensitive public education materials on cannabis; fourth, the establishment of additional residential addiction treatment centres; and fifth, the recognition and affirmation of the inherent right of Indigenous communities to self-government, including the right to regulate cannabis.
Second, the committee also recommends an amendment prescribing preferential production licences of at least 20 per cent of the total licences issued by Health Canada for producers on lands under the jurisdiction or ownership of Indigenous governments.
The report also provides eight policy recommendations to the Government of Canada related to the implementation of the proposed legalization of cannabis, as well as the necessary health and societal supports required: one, developing and providing stable funding for culturally specific education materials about cannabis; two, enabling Indigenous communities to restrict cannabis on their lands; three, respecting the right of Indigenous communities to establish their own cannabis and taxation regimes; four, increasing funding on an urgent basis for mental health and addiction programs, residential treatment centres, health services, traditional healing centres, and police services that serve Indigenous people and communities in anticipation of increased demand due to the proposed legalization of cannabis; five, increasing the number of residential addiction treatment centres in anticipation of increased demand due to the proposed legalization of cannabis, and the establishment of a residential addiction treatment centre for Indigenous peoples in Nunavut, the Northwest Territories and the Yukon; six, committing cannabis excise tax revenues toward investments in front-line mental health and addiction service delivery, treatment facilities in the vicinity of communities, public health programs and recreational infrastructure in the communities; seven, working with First Nations and First Nation institutions to allow them to collect excise tax on cannabis production; and eight, reserving 20 per cent of all cannabis licences for production activities on lands under the jurisdiction or ownership of Indigenous governments.
Senator Dyck: The committee heard that the proposed legalization of cannabis may have a disproportionate impact on Indigenous peoples. Indigenous peoples must be meaningfully consulted on legislation that affects them, including the proposed legalization of cannabis. The committee ultimately believes that the Indigenous peoples have the inherent right of self-determination, including the appropriate law-making authority to make meaningful decisions that affect the lives of their people and communities, such as regulating cannabis.
The committee supports Indigenous communities that want to participate fully in the cannabis market, especially given the economic opportunities missed by these communities in the past. Interested Indigenous communities should have the appropriate tools to seize economic opportunities as they arise.
Due to the legislative structure and drafting of Bill C-45, we found there was no appropriate mechanism to amend certain clauses of this bill in order to address our concerns. Moreover, on the issue of the specific recommendation on the excise tax, we were advised that this would be beyond the scope of the Senate because it deals with taxation and appropriation measures.
We are hopeful that this report and its recommendations will provide clear guidance to the Standing Senate Committee on Social Affairs, Science and Technology to guide your deliberations on Bill C-45.
The Chair: Thank you very much. That was an excellent presentation by the trio, and it came in under 10 minutes.
I will start off by asking a question before I go to the committee members.
In your first recommendation, you say to delay the coming into force of Bill C-45 for up to one year. I understand that, but a lot of us have experienced the fact that if you give people a year, they take a year, and if you give them two years, they take two years, et cetera. Why couldn’t a lot of these things be going on now, or how many of them are going on now? You have points a, b, c, d and e here, plus the second recommendation.
Why aren’t these discussions going on now, or are they? And could they not be done in a shorter period of time — done commensurate with the time it would take to bring it into force in any event, because they are saying it will take eight to 12 weeks following Royal Assent?
Senator Dyck: Thank you for the question. We put “up to one year,” hoping that it would, of course, happen in less than a year.
There are ongoing discussions with the Assembly of First Nations. In fact, they are having a meeting across the river, and Bill C-45 is on their agenda today. There is a working group talking about the cannabis legislation, but from what we were told, the consultations and the working group they have established will not have finished until the end of June. They will not have a report until sometime in the summer, and they will be reporting back to the chiefs assembly probably sometime in July, I suspect.
Consultations are ongoing, so it is possible, with the additional pressure, that the government may then be more serious. We have given them, I think, very clear instructions on what needs to be done with regard to addiction services as well as with the financial opportunities. That, in itself, is giving them a heads-up. We have already told them what needs to be done in other pieces of legislation.
Senator Tannas: It’s building on an example we’ve all learned through Bill S-3, where there were promises to consult and nobody believed the government. They had passed through an enormous period of time when they didn’t consult, and if we just passed the bill, they’d do all the consulting.
We decided to see them show us they had done that, and then we would move it along. That was the discussion.
In addition, we are mindful it is an election promise. If the government can get it done sooner, it will be to their credibility and goodwill. If they can declare victory and have gotten their laundry list done sooner, Canadians can judge that.
The Chair: Questions will be five minutes for questions and answers.
Senator Seidman: I would like to say thank you to our colleagues for being with us today and for the work you and the members of your committee did. You have provided us with a concise report and with clear guidance. I thank you very much for that.
I would like to ask about a particular recommendation under amendments. It is a deliverable that you are putting out there, and it is item b, “Culturally specific and linguistically appropriate education materials and programs.”
Indigenous health organizations told your committee that a tailored, culturally sensitive and linguistically appropriate approach to education is necessary to meet the needs of Indigenous peoples. Your report says that the Minister of Health told you that culturally and linguistically appropriate public education materials are in the process of being prepared. We have heard repeatedly at this committee that the key to public education is getting it out there in time to actually make an impact before cannabis is legal. That was advice we heard from Colorado, specifically, but we also heard from witness after witness the importance of getting the education out there.
I would like to know whether you received a timeline from the minister, since they keep saying they are working on it, as to when appropriate educational materials will be ready. Are you concerned that Indigenous youth will receive less education before legalization, despite being particularly vulnerable to the harms?
Senator Dyck: I will start. Thank you for that question. We did not receive a timeline from the minister on when those things would be accomplished. We understand the discussions are under way, but we don’t actually know when that will be concluded. We didn’t receive that kind of information.
With regard to youth, that was brought up by several witnesses, because, as everyone knows now, the Aboriginal population is a very young population; more than 50 per cent of the population is under the age of 25. There is a worry about the adverse effects of recreational use on that part of the population.
Senator Christmas: I didn’t hear a timeline from Minister Petitpas Taylor either, but I appreciate and support your comments that there is a desperate need for effective public education materials.
In Canada we have over 50 Indigenous linguistic groups. It will take time to be able to develop materials in those linguistic categories, and it will take time to distribute those materials. That was one of the reasons we put forward that we needed at least up to one year so that these materials can be developed, accepted and brought out to the communities.
Senator Seidman: And time for education. It’s not just producing the materials, right? It’s getting the materials out there on the ground and having time for the education, I would presume.
The Chair: I want to inject one question that arises out of this.
We are trying to make this a health matter instead of a criminalization matter. Right now, there are a lot of people in Indigenous communities who are being criminalized. What will be the impact if the law is passed but not proclaimed, which means the media will say that it’s now legal, but it’s not? Will it still be implemented? Will people be criminalized in that in-between period? Because the old law is still in effect. What about that hiatus there?
Senator Dyck: We are hoping that the hiatus isn’t too long.
The Chair: Up to a year.
Senator Dyck: Yes. But the danger is that because there are so many youth in the Aboriginal population, the health effects, we heard, will likely be much more severe, in particular with those communities where there is intergenerational trauma. The health effects are going to be severe.
It is a balance between perhaps reducing the criminalization, but, on the other hand, you are increasing the health risks.
We also heard that the bill itself in fact may actually increase the criminalization of the Aboriginal population because the penalty is such that there is a mandatory minimum, and that will dilute the Gladue effect under section 718.2(e) of the Criminal Code.
So it’s a mixed bag. There are good things and there are bad things. In the balance, what we heard mostly is that people are really concerned that they will see increased usage. That increased usage will have health effects and create changes in brain development. It’s going to affect their ability to complete school. If they don’t complete school, they’re not going to be able to get a job. It becomes a very vicious cycle.
On balance, I think waiting for, say, six months would seem to be a wise thing to do to get things right for that community, which is so incredibly vulnerable.
Senator Munson: Thank you for being here. Two questions. What is the interest in First Nations communities in growing cannabis? You hear about a whole bunch of other ones outside of Brampton and Smiths Falls, Ontario, and so on and so forth. I would like to know that, because I don’t know of any specific names.
Also, under the United Nations Declaration on the Rights of Indigenous Peoples, you are calling for respect of the right of Indigenous communities to establish their own cannabis and taxation laws.
We live in a free market, so if the First Nations community put a tax in that was basically an excise tax, which is known as a sin tax, beyond the other taxes that are there and therefore the cannabis is cheaper — it might be lower. It could be higher. It could be prohibitive to put it too high. I don’t know which way it would go.
Do you have any comments on that, in a free market that we live in, and we seem to have a difficult time selling beer across the border?
Senator Tannas: As the chair said, we were very keen to put some kind of an amendment forward that would include Indigenous people and Indigenous governments in the excise tax regime. That was the proposal that came from the First Nations Tax Commission, a federally funded organization that has been around and is very credible. We are not allowed in the Senate to do that kind of thing; otherwise, we would have done it.
That is one of the reasons why we think the coming into force delay should be there. It will allow the federal government to do what they ought to have done before. As that commissioner pointed out, we are headed down, with this bill, the exact same road we went down with cigarettes, where we had grey markets that populated themselves on Indigenous communities near the border, and eventually it took us many, many years to get that all sorted out, and with some significant tension.
We are not learning from that. In my mind it was probably the biggest evidence of the lack of consultation, that there was not consultation. Somebody should have picked this up way sooner.
With respect to economic development, this is why we have the amendment in there. We heard from a number of Indigenous community leaders and from business leaders that they are keen to be part of this. Let’s face it. This is one of the largest business bonanzas that has come from nowhere. We are going to go from zero in the legitimate market to somewhere around $7 billion a year in legitimate enterprise. That doesn’t happen very often.
First Nations communities and Aboriginal communities are not ramped up in the same way that other parts of the market are. Our recommendation to provide them with a cut of the licences and allow that development to occur, we think, makes a lot of sense.
Senator Dyck: If I could add to that, I think it also speaks to the issue of the right to self-government. Self-governing nations should be allowed their own taxation regimes. At this point in time, the excise tax agreements have only been made with the provinces and territories, not with First Nations. If you want First Nations to get ahead then you also have to provide them with equal opportunity for the economic opportunities that arise.
Senator Christmas: If I may, one of the witnesses very clearly outlined that the purpose of developing Indigenous laws, even on taxation or even sharing in the present excise tax sharing agreement, was so some of those revenues could be invested back into First Nations to deal with public education and the lack of mental health services and treatment centres — even just providing infrastructure that can support some cannabis producers in their territories.
It wasn’t doing taxation just for the sake of doing taxation. The whole purpose behind it was for Indigenous communities to be able to take those new revenues and invest them back into communities to deal with some of the adverse effects that will arise as a result of Bill C-45.
Senator Manning: Thank you, colleagues, for your presentation.
I want to go to the introduction of your report and the lack of access to and funding for culturally specific mental health and addictions services. Senator Christmas just talked about treatment centres.
In Newfoundland and Labrador many of those communities are remote in the northern part of Labrador, and access to services has been a big issue for years and years. This coming into force, I believe, will compound that.
I’m just wondering, in regard to the number and type of presentations you received, what avenue do we need to take here to ensure that this is addressed not only in the delay — I mean, I understand the purposes of the delay or the request for the delay, I should say. I understand that. But what suggestions have been made to you as a committee, and does the committee have any suggestions of how we can make sure, without a doubt, that we have something here in place before this becomes law? Legal, I should say.
Senator Dyck: We heard from quite a few witnesses who certainly told us that it was very important to have culturally appropriate treatment centres and educational materials. I believe some said that the land base, which are part of the cultural traditions, were more effective in treating addictions.
I’m not sure if I am answering your question, but because everything is all related, if we had the tax revenues coming back, as Senator Christmas said, that could support the number or the services available that are actually appropriate for that community. Those communities should be the ones that are deciding how it’s done. It’s not up to us to tell them what can be done because we don’t know. What might work in northern Saskatchewan is not necessarily going to work in downtown Saskatoon.
Senator Manning: Excuse my ignorance, but say the government of Newfoundland and Labrador decides today that we are not going to have any home growing or they decide they are going to have homegrown, does the community in Labrador have the right to decide that they are not going to have homegrown in their community if it’s a provincial matter?
Senator Dyck: Right now, they don’t. Because this is a law of general application, so it applies to everybody. That’s kind of our dilemma because at first we thought First Nations could opt into it, but they have no choice. If this law is passed, it’s the law.
Senator Manning: They can’t opt out?
Senator Dyck: No, they can’t opt out.
Senator Manning: Even if the community decides —
Senator Dyck: This is where those discussions have to happen. If we believe in self-government, then if a community wants to pass a bylaw that restricts it in some way, that has to be hammered out with the federal government before this becomes law. Otherwise, their hands are tied before it becomes law, before they get any kind of mechanism to tailor it to their own needs.
Senator Manning: Senator Tannas, do you want to add anything?
Senator Tannas: No, I thought that was a good description.
Senator Christmas: We thought, for instance, that some communities have the ability to prohibit alcohol in some of their communities. They’re dry communities, and they have that bylaw-making power under the Indian Act. Some witnesses have come forward and said, “We would like to do the same thing. We would like to be able to have a say on whether or not cannabis should be in our communities.”
They brought forward this concept of opting out of the cannabis act, but unfortunately, as Senator Dyck just mentioned, since Bill C-45 is a law of general application, Indigenous communities do not have that mechanism to opt out.
Senator Manning: That’s not a recommendation that is here, though. The request for delay is here to address; I guess that’s the way you are dealing with that request to delay so you can deal with issues such as that?
Senator Dyck: Those kinds of issues should be done during the consultation.
Senator Tannas: As it stands right now, we were told by a Justice lawyer that we couldn’t launch a provision in there that would allow them to opt in and opt out. It is a law of general application and it would be ruled out right off the bat.
This is an issue that needs to be addressed prior to it coming into force.
Senator Manning: Thank you.
Senator Galvez: Thank you very much, dear colleagues, for your work and for the report.
When we read the report, there are a couple of things that are evident, including the vulnerability of the First Nations and Indigenous people and the problems that are already ongoing with drug addiction. You also mentioned suicide rates. And therefore you conclude that there is a strong, critical need for increasing the capacity for treatment.
Based on that, I was surprised there were not specific amendments to Bill C-45 on the no promotion, THC limits, age or like the other committees have put forward in order to use the precautionary principle and try to protect youth as much as possible. Can you comment on what was discussed or why it was not discussed?
Senator Dyck: That’s a good question. Thank you, Senator Galvez. In fact, none of the witnesses even brought that up at all, and I think that’s because they were looking at the bill in terms of its overall effects on communities rather than looking at the detailed specifics of the bill. My sense is that the more detailed specifics of the bill are something that the Legal Committee would be doing, so I think that’s the reason why our witnesses didn’t bring up those specific concerns.
Senator Tannas: It’s a concern for all Canadian youth, and we were focused more on things that were unique to the Indigenous community, knowing that this committee and other committees would be focused on things that had to do with all Canadians.
Senator Poirier: Thanks to all three of you, and all the members of the committee for the great work that you have done on this.
My question has to do with the challenges in the northern communities that you speak of in your report, particularly with the lack of addition treatments program in the North. Do the Northern residents feel that they are ready for this legalization?
Senator Dyck: No, they don’t.
Senator Poirier: Do they feel supported by the federal government to put the necessary tools in place? Do they have confidence that will happen?
Senator Dyck: I don’t know if we can answer that.
Senator Tannas: My own answer is no, but that’s not because we asked them that specific question in such a plain way.
Senator Poirier: Okay. Would additional time provide more opportunity to consult about what tools and support are required? Is that one of reasons why we are asking for more time?
Senator Dyck: Yes, definitely. We heard that there are no treatment centres in the North and you have to fly out to get treatment. And in other regions of the country, treatment centres are not in your own home community.
There are not enough treatment centres and facilities to deal with what we have now, let alone any increase that might occur after this bill comes into effect.
Senator Poirier: It’s very clear in your report how crucial this up-to-one-year delay is, which you are recommending for the communities due to all the concerns and the lack of consultation you feel that has happened there. And I think that has been very clear by the way you have stated it.
What consequences do you feel could happen if for some reason this recommendation is not accepted by government?
Senator Dyck: I think the witnesses were really concerned that, as other senators have noted, the rates of drug addiction in some communities and suicide are very high, the rates of graduation are very high, and there is concern that it will get worse. Those communities can’t afford that, particularly with the large proportion of young people. They are at a time right now where things could go really well just because they have so many young people. I think this would really slow the recovery of the population.
Senator Christmas: Senator Poirier, the current situation in many communities is already in crisis without Bill C-45. So you have communities that are traumatized, that have the generational effects of residential school and colonization. We already have serious mental health issues and serious addiction issues, and some communities are even dealing with suicide epidemics. Currently, some communities are in crisis. Add Bill C-45 to this mix, and my fear is the social impacts will only be dramatically increased.
We really have no social safety net that’s big enough to deal with these issues. For instance, Senator Patterson was one of our witnesses, and he testified that Inuit communities in the North are not ready and they are pleading with Parliament that, before this bill is passed, they have an opportunity to be ready. That is not only in terms of public education materials but also, as Senator Dyck mentioned, there are no residential treatment centres to deal with the current problem. How are they going to deal with the issues arising from Bill C-45 in the future?
That’s one of the reasons we have strongly felt that we have to deal with this whole mental health service and addition treatment centre issue prior to Bill C-45’s coming into force.
Senator Poirier: Thank you. We hope that this plea is well heard.
Senator Dyck: In December 2017, the Assembly of First Nations passed a resolution at their chiefs assembly to delay the implementation of this bill by a year. They have already heard the concerns from across the country.
Senator Poirier: Thank you, chair.
The Chair: Thank you, senator. I counted. You got five questions in. That’s the greatest economy of your time I’ve ever seen. That’s great.
Senator Omidvar: I will try and be as efficient as Senator Poirier.
I want to focus on the disproportionate impact of criminalization on Indigenous youth. Did you consult with Indigenous youth organizations? What was their advice to you? What did they say in witness testimony?
Senator Dyck: I don’t believe we had any witnesses, but we did receive a brief from the youth council from Nunavut. There was concern about youth, but we didn’t actually have a youth witness. I believe we tried, but as you know, within the time frame we had, we had a lot of witnesses who weren’t able to come.
Senator Omidvar: Thank you. Following on that, Senator Christmas, I have a question for you, again around witness testimony and whether you heard any testimony about social sharing between just adults and just minors — passing a toke from a 19-year-old to an 18-year-old and the severe harsh personalities for the 19-year-old. Given the disproportionate impact already on native youth — I have just seen a study where, in Regina, Indigenous people are nine times more likely than a White person to get arrested for cannabis. This should be a concern for your community, the 14 years of imprisonment, within the context of legalization, for fairly benign sharing.
Have you heard anything about that? Was there any witness testimony or concerns expressed?
Senator Christmas: I share your concern about the high incarceration rates among Indigenous youth. That’s well known. Unfortunately, no, we didn’t have any testimony about the impact of the severe penalties for sharing cannabis with underage minors. We didn’t have any testimony about the severe penalties for possession over 5 grams.
Senator Patterson: Thank you for the excellent presentation. I’m a member of the committee, so maybe I’m biased, but I thought you presented very well.
Senator Dyck, you spoke several times about the Assembly of First Nations, which represents over 600 First Nations across the country, and said they are meeting today to talk about Bill C-45. I understand that they talked this morning about the rights framework that the Prime Minister has announced and made a top priority. It talks about reconciliation, respect and recognition, and there is the federal government’s commitment to the UN declaration, which calls for free, prior and informed consent. I know our committee felt that consultation was one of the first deficiencies, and it was one of the first observations we made.
This morning, the Prime Minister, when talking about the rights framework, said, “We can do this quickly, or we can do this right.” Would you comment whether that sentiment reflects the testimony we heard from Aboriginal peoples in our study of Bill C-45?
Senator Dyck: I believe we had quite a few witnesses who indicated they were not consulted. There were seven of them, I think. We had witnesses who were talking about delaying the bill — three organizations, including the Assembly of First Nations — and there were several First Nations talking about a lack of readiness.
It doesn’t fit with the concept of consultation being free, prior and informed consent. The current government has talked a lot about that. They have an opportunity here. They have started the consultations, but they have an opportunity to put those comments into action and take a real onslaught and then, over the next three or six months, actually get free, prior and informed consent.
It sounds like they have started it. They are talking at the special chiefs assembly yesterday and today. They have a plan. As I mentioned before, there is a cannabis working group with AFN, but they really need to maybe change the way in which they have done these engagement or consultation sessions so that the First Nation peoples are actually real partners and there is actually a discussion and collaboration.
Senator Patterson: And your observation was that it seemed most of the consultation with First Nations or Aboriginal people had been done after the bill was drafted and introduced and not before.
Senator Dyck: The document tabled by one the chiefs said the final consultation was started in January this year. That’s only four months ago. The government provided a list of other engagement meetings, events and forums they have had, but the actual working group with AFN didn’t start until January.
Senator Patterson: We looked at the consultation with the Inuit as well. Do you have any comments about how that was done by the federal government?
Senator Dyck: Off the top of my head, I have forgotten how that went with the Inuit. I hope someone else remembers.
Senator Christmas: We certainly had testimony from Inuit. I remember very clearly that, one evening, we had two Inuit elders testify before the committee. It was a very powerful, emotional plea, saying that their communities were not ready, they were not consulted, and they feared the impact of Bill C-45 on their young people.
If you look at individuals who live in a community who may not be part of any government or organization, they certainly had not been involved in these discussions. We had the leader of ITK come before us, and he admitted that he did meet with government representatives, but he didn’t consider that as consultation.
The Chair: Thank you very much.
Senator Dyck: May I add to that?
The Chair: Quickly.
Senator Dyck: I remember we did get a brief from Nunavut Tunngavik Incorporated where they were calling for delay because they didn’t feel they had been consulted. It is an actual formal resolution.
Senator Bernard: Thank you all for being here and for your work.
I have a couple of questions. I’ll try to get them all in.
I will start with Senator Dyck. You mentioned in your opening remarks that the legislation will dilute the effects of Gladue reports. Can you say more about that, please?
Senator Dyck: Yes. It was said to us by the Indigenous Bar Association that the sentencing provisions were such that the judge was required to give a minimum sentence for some of the offences. Under the Gladue section of the Criminal Code, subsection 718.2(e), the judge is a supposed to consider all offenders, and if possible not sentence them to prison time, especially if the offender is an Aboriginal person. This takes away from the discretion of the judge. The Gladue principle will, in a sense, be watered down and actually not available.
Senator Bernard: Thank you.
My second question has to do with intersectionality. I’m wondering if any of the witnesses spoke about the how Indigenous women may be differentially impacted. I’m tying this back to evidence we have heard in other places about the increase of Indigenous women in jail and also the increase of children coming into child welfare systems.
Senator Dyck: Unfortunately, we did not hear that kind of evidence. I think we asked some of the Indigenous groups that could have answered that question, but they weren’t able to appear.
Senator Bernard: This comes to your second amendment, your recommendation that the minister reserve at least 20 per cent of all cannabis production licences. I presented something similar around the African-Canadian community. I was also looking at the fact that anyone with a prior record would not be able to enter the industry. Did you hear any evidence about that? Was that taken into account in the development of this amendment?
Senator Tannas: We were more focused on the economic development than who it is.
Senator Bernard: Who can participate in that economic development?
Senator Tannas: Our recommendation is not to restrict it to Indigenous businesses on Indigenous lands because there may be many of the already-established businesses that have plans in the future for additional production facilities that could enter into joint ventures and provide employment online.
We were more interested in that. Because this train is moving so fast, the focus was to make sure there is a chance for Aboriginal communities that are looking for economic development opportunities to catch up and participate.
Senator Bernard: Thank you.
Senator Raine: I too sit on the Aboriginal Peoples Committee and I’ve heard the testimony. I want to take this opportunity to dig deeper into a few things we might not have discussed enough. I want to clarify the idea that because Bill C-45 is a law of general application and the Indian Act rules the life of Indigenous people, they do not, therefore, have the ability to prohibit the sale of cannabis on their own lands. I know that municipalities have the right to do that, and yet if Aboriginal communities and Indigenous communities do not have that right, something is wrong there.
Do you know if it would be possible to amend the Indian Act concurrently with Bill C-45 to make sure that that application is available? Senator Christmas might have the most experience in this.
Senator Dyck: I had thought of the suggestion of amending the Indian Act, but I thought people are so tired of the Indian Act that it would seem strange to amend it to include cannabis. That’s one of the reasons why, as Senator Christmas pointed out, because cannabis is not specifically mentioned, and alcohol is specifically in the Indian Act, there is a difference in what they can and can’t do with respect to their bylaws. It seems kind of backwards to go back to the Indian Act and amend it.
Senator Raine: I can understand that reluctance; however, I know that often, when you pass a law, it has application on other laws, so it can be quite easily transferred. If our intent is to give them the opportunity as a community to be a cannabis-free community, then I’m wondering —
Senator Dyck: It would fit really well into this whole concept of the implementation of the inherent right to self-government, which goes beyond the Indian Act. It is up to the government to sit down and hammer out how they can do it and get beyond the Indian Act.
Senator Christmas: One of our policy recommendations, number 2, speaks directly to that. We recommended that the Government of Canada establish mechanisms for Indigenous communities to restrict the manufacturing, distribution, sale or possession of cannabis on lands under the jurisdiction and ownership of Indigenous governments.
We certainly feel, as the Aboriginal Peoples Committee, that Indigenous people do have the right to enact our own legislation on cannabis. The most recent statements by the Prime Minister about considering section 35 as a full box rather than an empty box implies that the Indigenous communities do have the ability to pass their own legislation.
Again, I go back to the whole idea that bringing a delay to this legislation may enable the First Nations to occupy that field and develop their own legislation on cannabis.
Senator Mégie: Thank you, dear colleagues, for your report. You said earlier that there are not enough drug treatment centres. Where do young people go nowadays when they are faced with substance abuse problems? Who is currently looking after them?
Senator Christmas: There are approximately 50 treatment centres across Canada for Indigenous people, and, unfortunately, in many places, the residential treatment centres or detox centres are not in close proximity to a lot of communities. You are perfectly correct, senator, that in a lot of cases, unfortunately, people who need treatment for addictions have to go quite some distance to get that help.
If that’s the current situation, that there are not enough addiction treatment centres in Indigenous communities, what will happen with Bill C-45 when we may inadvertently create more addictions and have more people requiring treatment?
Senator Mégie: Has witness testimony revealed data to indicate which substances young people are using? Is it only marijuana, or is it is also other hard drugs?
Senator Dyck: We didn’t actually get any hard data from any of the witnesses. I’m not even sure that kind of data is available. Statistics Canada might be a source where that would be available, but oftentimes, when they are collecting data, Aboriginal identity is sometimes not always collected and reliable.
Senator Mégie: My suggestion may seem simplistic, but could legalization be a springboard to establish more drug treatment centres? It could be an opportunity. What do you think?
Senator Dyck: It could be an opportunity in the sense that we are anticipating it, but the delay would be necessary so that they get established before there is any increased pressure on them. As Senator Christmas noted, we already know there are not enough treatment centres.
Senator Tannas: It’s also fair to say there are not enough, and legalization will create additional demand, for which we heard there is no funding. These communities are already struggling to keep themselves together, and so that’s the issue, the delay of the coming into force speaks specifically to funding programs that will get these going.
The Chair: Two of our guest colleagues are here. I would like to work in a quick question from each of them.
Senator Lankin: First of all, Senator Christmas, you and I have had an opportunity to chat about a couple of these. I apologize; this will be repetitive for you, but I wanted to place this information forward.
It is fabulous work you have done. It is important for us to hear these voices. I don’t agree with every recommendation, but it is not because I don’t think the issues are important. I think multiple perspectives have to be brought together, including these perspectives.
My first question is around consultation, and it is a direct plea to your committee to take up the challenge of working to develop a framework for consultation. We have to get past this — no matter what happens, we are not doing it correctly — and figure out, with Indigenous communities, what would work, how it would work and get a framework in place that we all commit to.
Second, with respect to the delay, I think we are hearing one set of arguments, but there is a whole other set of arguments about what happens with the illicit market if we stop this short and put it off for a year, and what happens to businesses that are ready to start and put investments in. There are a lot of things to consider.
I think the issue of “rights-based” is important. As the Legal Committee has proposed an amendment that would clarify the right of provinces to regulate — in that case, regarding home growth — it would make it not a law of general application. It would respect federal and provincial jurisdiction on certain issues. Parallel but asymmetrical, there could potentially be an amendment. If you look at Recommendation No. 2 and put that into the form of an amendment in this bill, not in the Indian Act, which allows a rights-based opportunity to those communities to confirm what is in the box, as you said already, then those communities could take the delay and the time they need before moving into this. And those who are ready could proceed on an economic development basis or whatever. Could anyone who wants to do so comment on that?
The Chair: Senator Deacon, could you get your question on the floor and then we could get the responses to all the questions?
Senator Deacon: We will leave it with Senator Lankin. I was going to touch on that, but there may be some duplication.
The Chair: The responses, please, to the question of Senator Lankin.
Senator Dyck: With regard to our committee coming up with a framework for consultation, I somehow don’t think that is appropriate because it shouldn’t be someone from outside telling the First Nations what to do. As one chief said to us with regard to First Nations governance, nothing about us without us. That is, no discussion unless they are part of it. For us to then come up with a framework could be seen as another form of colonialism. It has to come from them. It shouldn’t come from us.
Senator Lankin: That is not what I suggested.
Senator Tannas: With respect to the idea of somehow placing Indigenous governments in the shoes of the province or finding some way to true it up is exactly what we are talking about. If we could have put specific amendments in around that we would have, but were told we couldn’t. With respect to revenue sharing, we are not allowed as senators to get mixed up in who gets what for taxes.
Second, with respect to this other idea of opt in or opt out, we did not get any advice on whether we could do something within the Indian Act. We got advice from Justice that we could not do anything on opt in or opt out. That is the rule of general application.
The idea of the Indian Act may be something that could be a stopgap measure or some other measure done in the intervening period, because that was one of the most powerful requests from communities. Namely, we would like the chance to say no and opt out.
The Chair: Okay. We are past our time. I have to adjourn this panel.
Thank you, colleagues, Senator Dyck, Senator Tannas and Senator Christmas, for coming, presenting your report and for answering our questions.
We will proceed now with our third panel of the afternoon in dealing with Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts.
We have three associations of lawyers. Let me introduce them all. We have, from the Criminal Lawyers’ Association, Annamaria Enenajor, Criminal Lawyer; and Michael Spratt, Criminal Lawyer. From the Canadian Bar Association, we have Paul J. Calarco, Member, Criminal Justice Section; and Gaylene Schellenberg, Lawyer, Legislation and Law Reform.
Fom the Barreau du Québec, we welcome, by video conference, Pascal Lévesque, Chair of the Committee on Criminal Law.
Mr. Lévesque is with us via video.
I will ask each of the three groups to make their opening remarks — seven minutes for each group. Both the Criminal Lawyers’ Association and Canadian Bar Association have two people each to share that seven-minute time.
Michael Spratt, Criminal Lawyer, Criminal Lawyers’ Association: I would like to open by saying thank you. It is both an honour and a privilege to appear before this committee to talk about this very important issue.
Ms. Enenajor and I are here on behalf of the Criminal Lawyers’ Association. We are a not-for-profit organization of 1,000 criminal defence lawyers. The objectives of our association are to educate, promote and represent both ourselves and the people we represent on issues relating to criminal and constitutional law. Our association has routinely appeared before committees such as this one and has intervened in appeals in both the Court of Appeal and the Supreme Court of Canada.
The CLA supports legislation that is fair, modest and, above all else, constitutional. I will be honest with you: Bill C-45 is a difficult bill for me personally and for us as an organization. It is difficult because we know, as criminal lawyers, that the war on drugs has been a complete and abject failure. The social and financial costs of drug criminalization outweigh any illusory benefit. There is no better example of that than the prohibition against cannabis.
Every year, scores of young men and women are incarcerated, stigmatized and killed over relatively small amounts of marijuana. Marijuana criminalization imposes unreasonable penalties on a relatively low-risk vice. In the real world, a drug record, a record for simply possessing marijuana, means limited employment opportunities, limited travel opportunities and other devastating collateral consequences. These costs are more often borne by the marginalized, the impoverished and the racialized.
In simple terms, it is the criminalization of marijuana, not marijuana itself, that creates these harms.
In that sense, we welcome the legalization of cannabis, but that is not really what this bill does. It doesn’t legalize cannabis in enough situations, and it doesn’t go far enough. Most important, it is littered with unconstitutional sections and provisions that will be struck down by the courts soon after they’re enacted. Under this bill, youth are punished and criminalized more than adults are. A 17-year-old who possesses six grams of marijuana is a criminal, will be arrested and prosecuted. His 18-year-old friend standing beside him, who possesses more marijuana — as much as 30 grams — isn’t committing an offence. This appears nowhere else in the Criminal Code and should be a red flag to this committee. It is criminalization on the basis of age and will be found to be unconstitutional.
There are many other problems in this bill. I will talk about ticketing next before I turn over the last few minutes to Ms. Enenajor.
The ticketing provision also discriminates against the young. They are not allowed to partake in that and will be forced down the criminal path. There will be no discretion for police officers or prosecutors to afford youth the benefit of receiving a ticket.
But that is not even the worse problem with that ticketing provision. The ticketing provision is good in that it can divert adults away from the criminal law process, and it is good that it seals the court records so that some of those criminal collateral consequences don’t follow adults down this ticketing path. But we know that youth are excluded, and the poor will continue to be marginalized and discriminated against through this ticketing regime because you can only take advantage of getting a record sealed if you are rich enough to pay the fine within 30 days. There is not a clearer case of discrimination or an unconstitutional provision. It is the lowest hanging fruit.
I will hand it over to Ms. Enenajor, who will talk about some other problems with the bill.
Annamaria Enenajor, Criminal Lawyer, Criminal Lawyers’ Association: Good afternoon, senators. I will be addressing two issues that the Criminal Lawyers’ Association have flagged as problematic in Bill C-45. One of them deals with the collateral immigration consequences of some of the offences as they are written in the bill. The second is a glaring blind spot in the drafting of the bill, namely, that the bill does not take into consideration and does not mitigate in any way the horrendous negative stigma that is attached to the criminalization of cannabis in Canada and the consequences that has for some Canadians.
The penalties for the offences in Bill C-45 are quite stark. In contrast to current legislation for marijuana, for example, Bill C-45 increases the maximum penalties for distribution of three kilograms or less of marijuana from five years to 14 years. As a consequence of this increase of the maximum penalty associated with this offence, more Canadian residents will be facing unwarranted threats to their lawful status as a result of conviction of these offences.
Section 36 of the Immigration and Refugee Protection Act considers individuals criminally inadmissible in Canada on two bases: first, if they are sentenced to a custodial sentence of six months or more, and second, if they are convicted of an offence that carries a maximum of over 10 years. Bill C-45 raises the maximum for a number of offences relating to marijuana possession and distribution over that 10-year mark, making more Canadians who are participating or who have committed offences around a relatively low-risk vice subject to deportation from the country and, potentially, detention in the interim.
In practice, if an 18-year-old Canadian permanent resident is convicted of passing a joint to his 17-year-old friend, he will receive a deportation order, even if he only receives a suspended sentence and no jail time, which reflects the actual moral gravity of the offence under the criminal system.
The impact of these collateral consequences can be quite stark and will obviously be disproportionately felt by many people who are in vulnerable positions in society. People who are newcomers to Canada, immigrants and permanent residents often face issues and problems with mental health, as was discussed by the Schizophrenia Society of Ontario in a paper that was presented in 2010.
The proposed legislation does nothing to address the stigma of the history of criminal convictions that are visited upon Canadian people. We know that, disproportionately, these convictions and the policing of cannabis have been felt by Indigenous Canadians and other vulnerable groups such as Black Canadians.
The result of not addressing the impact this has on these individuals’ lives is that they will continue to be stigmatized and criminalized and will continue to be subject to the invasive nature of state surveillance until this issue is addressed. In our submission, this is a disproportionate consequence the bill does not foresee.
The Chair: Thank you very much. We will now go to the CBA.
Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association: Good afternoon, and thank you for the invitation to present the Canadian Bar Association National Criminal Justice Section’s views on Bill C-45 today.
The CBA is a national association of over 36,000 lawyers, law students, notaries and academics. Our mandate includes seeking improvement in the law and the administration of justice. Our National Criminal Justice Section represents a balance of Crown and defence lawyers from all parts of the country.
With me today is Paul Calarco, a defence lawyer from Toronto and an executive member of our section. Mr. Calarco will summarize the highlights of our submission and respond to your questions. Thank you.
Paul J. Calarco, Member, Criminal Justice Section, Canadian Bar Association: Honourable senators, since 1978, the Canadian Bar Association has advocated a different approach than has historically been taken in this country to the possession and use of marijuana.
Experience has demonstrated that absolute prohibition has not worked but has resulted in the distribution of this drug on the black market, has spurred the growth of criminal elements and has led to many people having damaging criminal records. At the same time, those who needed this drug for legitimate medical purposes were, until recently, denied access, forcing them to purchase it illegally.
A better system was and is required. The Canadian Bar Association, in 2013, urged the government to adopt a harm reduction model for drug use, seeing it as a social and medical issue, not primarily a criminal law matter.
This is not to say that the CBA is blind to the harms associated with drug use, but, put simply, widespread criminalization has not worked.
Bill C-45 would take a regulated industry approach to one part of drug use and distribution. It is a major and multi-faceted initiative, but with any major and complex change, it is more important that it be done right rather than just done quickly.
The bill is a positive step toward treating cannabis use and possession in a non-criminal way, but the CBA section continues to have serious concerns with the legislation, and I will address a few of these.
First, Bill C-45 would too often result in people moving from lawful activity to serious criminality with severe penalties when there is little factual difference between their situations. We urge careful consideration to the everyday examples that our section and others have provided as to how proposals would affect ordinary Canadians.
The message that many Canadians have now is that cannabis will be completely legal soon. This is not so. The bill maintains a strong criminal regime for many aspects of possession, distribution and cultivation. Clarity is essential.
Second, the sentences in Bill C-45 should be reconsidered. The proposed penalties are far beyond what is being imposed in our courts today. Even when there are large marijuana grow operations found, sentences of 14 years have not been considered by our courts, but this bill will preserve a maximum of 14 years and massive fines, or five years less a day for simple possession. Even if offences are prosecuted summarily, jail terms and fines are still very high.
Conditional sentence orders are not available where the Crown proceeds by indictment, and discharges will not be available at all since the maximum penalty is 14 years. We suggest that legislatively determined sentence ranges reflect the actual sentences currently imposed and allow for alternative dispositions such as conditional sentences and discharges. That means that the maximum penalties must be reduced.
In addition, we urge that until the current legislation is replaced, prosecutions be conducted consistent with the spirit of the new legislation and non-custodial terms be sought whenever reasonably possible. The CBA has long opposed mandatory minimum sentences, and we suggest that these not be used in the interim period.
Third, the ticketable offences regime set out in sections 51 to 60 is quite limited, referring to a maximum of 50 grams or five to six plants in regard to cultivation, one to two plants over the legal limit. Consideration should be given to a wider range of ticketable offences.
We also caution that the discretion permitted and granted to certain authorities be carefully monitored because discretion may be a means to further marginalize vulnerable or racialized groups. The legislation should be amended to require, rather than permit, ticketable offences to be used unless they are inappropriate in the circumstances.
Fourth, these proposals are not reflective of social conditions in many parts of the country where people may not have access to legal supplies of cannabis but are not allowed to have longer-term supplies. For example, criminal provisions set limits of 30 grams for adults and 5 grams for youth, and four plants per residence no matter how many people may be living there.
The transport provisions are restrictive, as are the prohibitions on non-budding or flowering plants. This means that people who may be living in a more communal way or reside in remote areas or simply wish to transport a larger supply for a number of willing adults would be subject to severe penalties.
For youths, there is no legal way for youths to obtain cannabis. It is unquestionably desirable to educate and discourage young people from using drugs, but it is clear from past experience that there will be use.
The bill as it is will create, not eliminate, a black market. While it is recognized that youths may distribute amongst themselves up to 5 grams of cannabis without criminal penalty, it does not allow for a legitimate source of marijuana to be obtained.
At present, the regulations, which are an essential part of the new substance control regime, have not been published. In moving toward a regulated industry model, it is essential that industry know what is permitted and what is not. A breach of the regulations can result in imprisonment and very heavy fines, but businesses cannot prepare for whatever the regulations may be in order to model their affairs and remain on the right side of the law. This must be addressed.
At the appropriate time, I will be pleased to answer the questions of the senators.
Pascal Lévesque, Chair of the Committee on Criminal Law, Barreau du Québec: Honourable senators, my name is Pascal Lévesque, and I am the Chair of the Committee on Criminal Law of the Barreau du Québec. The Barreau du Québec appears before you today with great interest in discussing Bill C-45, the cannabis act.
As a professional order, the mission of the Barreau du Québec is to protect the public. Legalizing cannabis and building a framework around it encompass a variety of interrelated societal issues, including health, public safety and the law, all of which the barreau takes into account when carrying out its mission. In doing so, we would like to thank you for inviting the barreau to share its position on legalizing cannabis in Canada and building a framework around it.
Generally speaking, but without taking a position on the legalization of cannabis, the barreau welcomes Bill C-45, which provides a comprehensive plan and clear measures for the production, distribution and sale of this substance. However, we wish to re-examine some major issues that deserve to be emphasized from the standpoint of public protection.
First of all, we want to reiterate the importance of measures, specifically legal measures, that would contribute to public awareness, prevention and education, especially for young people. In order to give the public the ability to make clear choices around recreational cannabis use, research funding must be allocated to a wide variety of areas, including health, sociology, and, of course, the law.
Even though cannabis will soon become a legal consumer product to a certain extent, it still has certain recognized negative effects. If the decision to legalize this product can be justified by balancing its drawbacks, only time and use will tell us if the decisions we made should be improved, preserved or reversed.
As to the need for further research for educational purposes, we must remember that the youngest people consume more cannabis. Statistics Canada reports that the highest cannabis consumption is in the 18 to 24 age group, followed closely by the 14 to 17 age group. As a result, awareness and prevention efforts should be directed at young people in particular.
The cannabis act will criminalize possession more strictly for minors than for those having reached the age of majority. While persons aged 18 or older may possess up to 30 grams of cannabis, minors are limited to a maximum of 5 grams. The bar association wishes to stress that minors should not be criminalized for behaviour that is allowed in adults. We must remember that this population is especially vulnerable and must be adequately protected. In this regard, let us not forget that the youth criminal justice system is separate from the adult system. It is based on the principle of diminished moral blameworthiness and must focus in particular on the social reintegration and rehabilitation of youth. We must not subject them to the serious consequences of a criminal conviction.
Given the importance of not criminalizing youth for mere possession of cannabis below the legal limit, we recommend that you decriminalize the possession of less than 30 grams of cannabis by youth. It would then be up to the provinces to impose sanctions, such as a fine, for the possession of cannabis by minors. Certain provinces, including Quebec, in its Bill 157, are proposing to do this for the possession of any amount up to 5 grams.
It should also be noted that the contraventions regime in the cannabis act would not apply to minors. Under this regime, a summons without criminal charges may be issued to persons aged 18 or older who commit certain offences.
This means that the usual criminal procedure is followed for an especially vulnerable population. In our opinion, awareness, education and prevention are the best ways to eradicate youth consumption of cannabis. Further, the criminal justice system must not be used to make up for an inadequate prevention and education system.
As to the ticketing standards set out in the cannabis act, the Quebec bar considers that strict ticketing standards are absolutely necessary in order to achieve the objectives of information, prevention and, in certain cases, especially as regards youth, deterrence, and that these must be at the forefront of the overall approach to cannabis in Quebec.
Let us recall that Bill C-45 stipulates that plain packaging shall be used, especially as regards colours and lettering. In its brief on Bill C-45, the Barreau du Québec calls on the federal government to establish a stricter national standard including dissuasive information and images, as is currently the case for tobacco.
Finally, the cannabis act recognizes the power of the provinces and territories to authorize and oversee the distribution and sale of cannabis, subject to the minimum federal conditions provided in a list. We find, however, that this list is not exhaustive on matters falling under exclusive federal jurisdiction under criminal law. This can create some confusion as to the provisions that the provinces have to respect when they enact legislation pertaining to the retail sale and distribution of cannabis. In the interest of clarity, the legislator should clarify the cannabis act accordingly.
Those are the main issues that the Barreau du Québec wanted to raise, Mr. Chair and members of the committee, in your consultations on Bill C-45. More detailed explanations of the various issues we have just mentioned are provided in the brief we submitted, which is also posted on the Barreau du Québec website. We hope our presentation will provide food for thought.
I will be pleased to answer your questions now.
The Chair: Thank you. Now we will go to questions. Again, it is five minutes per senator for questions and answers, starting with deputy chair.
Senator Seidman: Thank you all very much for your presentations. I must admit that I was particularly struck because all of you pointed out that it’s really unprecedented in law to criminalize conduct for a young person that’s legal for an adult, and it’s particularly disconcerting to hear that a law that is supposed to help youth with the criminal system and decriminalize is in fact going to create a worse situation. And that is hardly what we should be doing.
I’d like to ask you, what is misconceived in this legislation? I know you all spoke to it and you listed some amendments, suggestions and recommendations, but I’d like to be a little crisper or sharper if I could. What is misconstrued, and what measures should be in place to protect youth in this legislation?
Mr. Spratt: To be succinct and brief, what is misconstrued in this legislation is the continued criminalization of marijuana. It should be treated no differently than tobacco and alcohol. We have not seen a reduction in smoking rates for tobacco amongst our youth because we’ve criminalized it. The Criminal Code — and you have heard this before from other criminal defence lawyers — is a blunt tool to deal with social problems.
I am not naive enough to think that this committee will remove the criminalization of marijuana from Bill C-45, but at the least we can stop there from being discrepancies between youth and adult. And when you look at youth, it’s very important to look at specific context. For youth, it’s illegal for them to possess 5 grams or more. That’s a lot for a youth.
Youths often carry around their marijuana in their backpack. They often pool their money to buy marijuana and may have greater amounts than they would normally carry. Youth are in a special circumstance and a special place for how they conduct themselves. And we recognize in the Youth Criminal Justice Act that they are less mature, less forward thinking and less amendable to whatever scrap of deterrence can be found in criminal law. If 100 years of strict criminalization has not stopped them, certainly this won’t.
And not only are there Charter problems with the inequality between youth and adults, but we will also have a continuation of the stigma, the criminalization that we see in the current law. The worst thing that can happen to a youth in possession of marijuana is that they are introduced to the criminal law and fall down into the rabbit hole of continuing offences.
Mr. Calarco: There are two parts to the answer that I would like to give: first, misconceptions; and second, the measures to protect youth.
One of the big misconceptions is people thinking, come Royal Assent or proclamation, that it’s a totally legal situation with respect to marijuana. It has to be made very clear that this is not the case. There are going to be limited non-criminal exceptions to the possession of cannabis. That is all that is happening here.
So first of all, that message has to get out. The second thing is if we’re looking at protecting youth, you have to look at much better communication, much more education. This is something that involves not only the national government but the provinces, the municipalities, boards of education and social organizations. People have to understand there are dangers associated with drug use, and I know this committee has heard from many highly qualified people about those dangers.
The message has to come across at so many levels and change attitudes. And that’s not going to happen overnight, but it has to start.
Mr. Lévesque: Essentially, if adults are allowed to possess up to 30 grams and youth up to 5 grams, the ideal would be to limit possession to 30 grams for youth, but to allow the provinces to establish offences for possession of up to 30 grams. This would still be harmful, since there would be sanctions, but it would not be a crime.
The bar association appreciates that the government is very far along in its consideration of the bill, and that certain provinces have already tailored their approach according to it. It might be difficult for you to make changes now. At a minimum, it could be reiterated in Bill C-45 that the principles, objectives and measures of the Youth Criminal Justice Act should take precedence. The bar association has already proposed an amendment to this effect to another Senate committee, specifically, clause 5.1, which reads as follows:
It is understood that nothing in this Act shall be interpreted in such a way as to limit the provisions of the Youth Criminal Justice Act, including the use of a warning, caution, referral or extrajudicial sanction.
Front-line service providers, community police and Crown prosecutors could get around the issue of criminalization by applying the principles of the Youth Criminal Justice Act.
Under clause 5, the criminal justice system applies to this act, but that is not crystal clear. If it is not clear to us lawyers, it will not be clear to the police who deal with youth.
The Chair: I want to inject a question right here. If we wanted to keep the criminalization of the big players in this, the people who are selling, producing and importing this stuff — the real criminal element we talked about is part of the big industry that’s out there — how would we do that, while at the same time taking it out of the criminalization of young people, or even people who just casually pass weed back and forth or whatever these other minor offences are? We can have fines for some, and maybe we could have some sort of system of restorative justice for the younger people, particularly, but how do we limit it to the big players? As it would have been back in the 1920s and 1930s, when they were bringing alcohol out of prohibition. What would we do to stop the bootleggers — the big industry? Your comments would be appreciated.
Mr. Calarco: A variety of things can be done. I don’t profess to have all the answers, of course. If you have a regime whereby a micro-cultivation, for lack of a better term, is permitted so that people can produce realistic amounts for their own use, for the use of others and to distribute that, you could have a cottage industry, for lack of a better term, in distribution. That could be an accepted thing.
The people who are involved in these massive boatload operations would not be permitted by the act. The act would set certain levels of tolerance so that people are not criminalized in these lower areas.
The big issue, though, is it making sure there is no profit, because where there is profit to be made, you will have illegal activity. That’s why it’s a more complex area such as taxation, government setting rates and so on. If you have perhaps a micro-distribution or micro-processing cottage industry, that may open up or remove profit from a large section.
I can’t say that it’s going to work, but it is worth consideration, senator.
Mr. Spratt: The other thing you can do is remove simple possession of cannabis from the Criminal Code so that you are allowed to possess cannabis. In terms of trafficking, you can build in exceptions for small amounts or close-in-age exceptions to eliminate the really distasteful examples that come from this bill about an 18-year-old passing a joint to his 17-year-old friend.
The one thing we know from our case law is that the definition of “trafficking” is very broad. To ameliorate some of those effects, you can build in exceptions, but I think the starting point is to treat cannabis like we treat tobacco and alcohol. Possession should be removed from the Criminal Code, and then provinces can deal with it in other mechanisms that don’t carry as much stigma as Criminal Code offences do.
Mr. Lévesque: We would like to raise another point. It is a question of the paradigm. When a youth under the age of 18 commits an offence under the act, the front-line service provider must recognize that these are not the same individuals. These are not the people intended by the act, because they are not big players. Some discretion is needed for people on the ground. Organized crime, the big players, can use young people to run their operations. It is possible that a young person does not understand the first, second or third time, and does it repeatedly. In those cases, the act can have its full effect. The act must clearly indicate that in the case of a young person we want to protect, the first reflex must be to deal with the person differently.
The Chair: Thank you.
Senator Omidvar: I have two questions, so I’ll try and be tight with them. My first question is to Ms. Enenajor. Thank you in your brief for clarifying the collateral damage to immigrants as a result of criminalization.
Would you agree with me that Bill C-45 and its impact on permanent residency is unintended but that it’s a serious impact? Also, could you clarify for us the impact on family reunification of permanent residents, or even citizens who are seeking to sponsor a family member who falls into this bucket?
Ms. Enenajor: I would have to say that it is an unintended consequence. There is no indication in the drafting of the bill that it was an intended consequence to have this detrimental or quite serious impact on permanent residents.
However, that’s not to say it’s not serious, and it’s not to say it’s not disappointing to have that as a consequence. It is quite serious. It impacts the lives of hundreds of thousands of people, potentially, and it is a consequence that shows or reveals that there is really a blind spot in the drafting of this law in accepting and understanding the ways in which it can have not just legal consequences in terms of encounters with the criminal justice system, when one conceives of ways of dealing with cannabis and the prohibition of cannabis, but also in other aspects of people’s lives like in the immigration consequences and the long-term consequences of having a criminal record, which impacts access to housing, employment and travel. All of those are social impacts that are visited on individuals as a result of the criminalization of cannabis.
In terms of the other collateral consequences you raised around the potential for that to impact family unification, if an individual has been deported from Canada for being criminally inadmissible under IRPA, the Immigration and Refugee Protection Act, those individuals cannot be sponsored back to Canada, and it will effectively have a detrimental effect on the families that will be separated as a result of that deportation.
Senator Omidvar: Where did the 14 years come from? Can anyone clarify that for me? If you were drafting the legislation, where would you set this penalty?
Mr. Spratt: It certainly didn’t come from pre-existing case law, from the precedents we see in the court or from an evaluation of the availability of conditional sentences, discharges or other types of restorative sentencing. It also certainly didn’t come from an evaluation based on a harm principle.
I don’t know where it came from, but I think we can say that the interaction between that 14 years and other legislation that hasn’t been amended by the government as of yet was not considered.
Mr. Calarco: I think the 14 years came from the standard use of indictable offences, because indictable offences are usually punished by 2, 5, 10, 14 or life. These numbers have been used in the Criminal Code for a very long time, and I think the drafters must have just slotted in the number 14.
Senator Omidvar: Where would you set it, if you could?
Mr. Calarco: Well, the Canadian Bar Association has indicated that this should be treated as a social problem. The sentences should be in the range, I would suggest, of five years as a maximum, if punishable by indictment. And I believe that’s consistent with what the Le Dain commission recommended so many years ago.
Mr. Lévesque: Yes, they could be reduced. Bill C-75 has been tabled and it would reduce maximum penalties. I cannot tell you which ones yet, as we have not thought about it. You can impose a fairly tough sentence to indicate the objective seriousness of these offences, while at the same time giving practitioners, that is, Crown prosecutors in the field and defence lawyers, the option of adjusting the sentence depending on the circumstances. So that could mean a summary conviction, or a range of sentences which would otherwise not be available, as Mr. Spratt said.
The Chair: Thank you.
Senator Poirier: Thank you all for the presentations.
I have two questions. The first one is for Mr. Spratt. We heard about people being turned away from the United States, not for having been charged with marijuana-related offences but for admitting to consuming marijuana in the past. And lately we were hearing more of that and, with the possibility of Bill C-45, the consequence of people trying to get over to the United States.
We have even heard things go as far as people being at risk of having their NEXUS card taken away and being barred from the United States. What are your thoughts on that?
Mr. Spratt: Those concerns are valid and legitimate. The stigma that some view these offences with remains so high that it might not even be a conviction that bars entry.
To illustrate the absurdity of the situation we are dealing with, I can tell the committee I have had clients who have had convictions, small fines, suspended sentences for small amounts of marijuana that are decades old and who are routinely turned away from the border. And I have clients who have been convicted of manslaughter and other violent offences who make it through the border no problem.
That is what we are dealing with. And that is an illustration of some of the harms that go along with continued criminalization. It is not because someone who has possessed marijuana is a danger to society on par with someone who has committed manslaughter, but that’s how these offences are viewed. That is the danger of criminalizing them and keeping them in the Criminal Code.
Senator Poirier: Do you think Canadians aware of that or are informed enough about that?
Mr. Spratt: I don’t think they are. A good illustration of that is the number of Canadians who believe it is already legal to have marijuana or, like the clerk at my local convenience store told me last year, having marijuana is legal one day a year as long as it is done on 420 on Parliament Hill.
It is humorous, but it shows that it is through education and social engagement that we change societal attitudes on what is harmful and not and what is dangerous and what is not. And it is not through criminalization.
Senator Poirier: My second question is for the Canadian Bar Association. The committee heard from different people who talked a lot about the education. We need more education on the risks associated with cannabis, but we don’t seem to have heard nearly enough on the education of the consequences of the law when it comes to possession of the home growth or age limit, et cetera.
In your opinion, are Canadians young and old well informed and aware enough of the consequences of Bill C-45? If they are not fully aware of the consequences of Bill C-45, what would be the impact on our juridical system?
Mr. Calarco: First of all, Canadians are not nearly informed enough about the impact of this legislation. There is massive misunderstanding, and I think the average Canadian has no idea what is in a very large bill.
People get their information from the news, and you’ll see a few seconds on television. That doesn’t tell you what is going on. Because of the lack of information people have, they will easily be able to transgress into serious criminality, and that will have a serious impact on our criminal justice system. It will add a lot more cases in the courts; it will cause a lot more delay. It will strap resources not only for the Crown, which has to prosecute these cases, but for individuals charged and for legal aid plans where legal aid will cover those.
There will also be many people whom legal aid will not cover, so they will have to face the criminal justice system alone. That will cause even more delay because the last thing any judge wants is an unrepresented accused person in court. I trust that answers you.
Mr. Lévesque: Clearly, no one is supposed to ignore the law, but that said this is a legal fiction in a sense. That does not necessarily mean that people are aware of this. I agree with the two previous speakers. The bar association has already said that there is a strong duty to educate the affected populations, especially youth. The Barreau du Québec has already begun thinking about this. Éducaloi, a non-profit organization that does legal outreach, will be developing programs specifically for youth. This is not systematic or mandatory, however. It will be added to the already full curricula of high schools and colleges. I agree with Mr. Calarco and the Canadian Bar Association that it is essential for the public to be informed of any detailed changes to the legal regime that are made. Otherwise, offences will be committed inadvertently.
Senator Bernard: My questions are for Ms. Enenajor. The first one is that I’ve noticed African Canadians are pretty well absent from the debate in terms of their own voices in the debate, but also in terms of a lack of consultation with the African-Canadian community. You’ve both mentioned in your submission, when you look at the overrepresentation of African Canadians being incarcerated, many are because of simple possession. Could you tell us why you think that is the case?
Ms. Enenajor: That’s a very complex question, but I agree with you that Bill C-45 is blind in its inability to recognize, treat and deal with the disproportionate way in which the war on cannabis and on drugs in general has targeted and negatively impacted the lives of racialized communities, particularly African-Canadian communities, African-Canadian people in Canada. It’s disappointing because the impetus for the law was to reduce unnecessary criminalization, and nowhere is that unnecessary criminalization more apparent than among the individuals who exist in this community.
We know that through the exercise of discretion in the laying of charges, arresting and prosecution, individuals who are from marginalized or racialized communities are more likely to be arrested instead of given a warning or dismissed on the street. They are more likely to be denied bail. They are more likely to receive harsher sentences. As a result, they are more likely to have criminal records that will follow them for the rest of their lives and will further marginalize them by impacting or limiting the ways in which they can become meaningful members of society.
I think the reason that this glaring error is present in Bill C-45 is because the bill, I think, kind of lost its way. I believe the first draft of this bill that was tabled by this government included a provision that made way for pardons for individuals with prior simple possession offences. That provision was removed.
In my perspective, and in the perspective of many criminal defence lawyers that are working in this area, this is an ill-conceived amendment to the bill because it doesn’t address the individuals who are actually the most impacted by the criminalization of this substance in society.
If the effect of this bill or the purpose of this bill is to remove or change or somehow rectify this historical injustice, it doesn’t make any sense for them to be excluded from the bill. Why I say this bill has lost its way along the way is because increasingly, as the bill went through, it appears to be more focused on making a cannabis industry that is profitable for the most privileged in society rather than making cannabis or cannabis convictions something that doesn’t have the effect of negatively impacting and destroying the lives of individuals that have come in conflict with the law in the past.
I think the focus of the bill has gone askew. We really must, if this is a social justice matter, go back and readdress the way in which the legalization of cannabis in this case does not address the individuals who are the most vulnerable and most impacted by the history of prohibition.
Senator Bernard: I am wondering about intersectionality. I asked this question of the Aboriginal panel that was on just before you, and that hadn’t come up. I am wondering about women from those racialized and marginalized communities and how they are differentially impacted.
Ms. Enenajor: Right. Women often come in conflict with the law in relation to drugs largely as personal consumption but also in terms of what you would colloquially call drug mules. We know that individuals who have convictions on the basis of this are individuals who are in vulnerable positions, who are often in the trafficking or distribution of cannabis for the purpose of gaining an income to sustain their families and their children.
In terms of the intersectionality of the criminalization of cannabis and the impact that that would have on women of colour in Canada, what I would say is that because of the nature of the way these women come into contact with the criminal justice system — namely, by attempting to gain income for their families — what the further criminalization does is not only punish the woman but also the rest of her family, the children who can no longer rely on her income and support. In the case of custodial sentences, they may often be taken into care.
The ramifications of criminalization have particularly devastating impacts for women of colour who are quite vulnerable, especially if they are below the poverty threshold.
Senator Raine: You have certainly given us a lot to think about today. I have to confess that I start wondering how this bill got drafted the way it is and got so far along this path. I am not a lawyer, and I don’t really understand how it works, but were the Canadian Bar Association, the Barreau du Québec and the Criminal Lawyers’ Association not involved at all in the drafting of this legislation?
Mr. Spratt: We weren’t consulted with respect to the drafting, and I don’t know personally of any criminal defence lawyers who were consulted with respect to the drafting. Certainly our recommendations, which are similar to the ones we made here, weren’t acted on in the house.
Senator Raine: So when the committee travelled across Canada to get input, they might have heard from you, but they didn’t listen?
Mr. Calarco: The Canadian Bar Association was not consulted. I believe it is noted in one of our submissions that there were a very limited number of submissions that were allowed in the time frame that the bill was looked at. We were not consulted about the actual content of the bill.
Mr. Lévesque: I can check, but I do not think so. I have been a member of the committee since 2015 and I was not the chair at that time. I have been the committee chair since 2017, and I do not think we were consulted during the committee’s hearings. I am not sure and will have to check, but I think if we had been, we would have talked about it. So I do not think we were consulted.
Senator Raine: So the task force that the government had in place that was gathering information that we have been presented with as the raison d’être for the bill hasn’t consulted many people at all. That is a real shame, I think.
I agree that societal attitudes need to be changed around this, but to criminalize possession is not the way to go. But I believe that we still need to criminalize the trafficking and the illegal production and sale of it.
Is that what Bill C-45 should be doing, and removing the possession effects from the legal penalties?
Mr. Spratt: I think so. I think that would reflect the submissions that we made in our brief.
I would like to take this opportunity to add one final point to our submission that actually intersects quite well with what Ms. Enenajor was saying about discretion and how that has adversely impacted marginalized groups.
A lot of people who support this bill say that the concerns that we have raised about youth, penalties and collateral consequences can be cured because police officers can choose not to lay charges or choose to give a ticket, or prosecutors can choose one way or choose the other way. That is the very same discretion that Ms. Enenajor talked about that disproportionately impacts vulnerable groups.
When the committee is considering this bill that maybe wasn’t properly consulted on or there haven’t been amendments thus far, I would caution this committee to discount people saying that the problems here that have been pointed out can be cured down the line with discretion, because we know that that hasn’t worked in the past. The Supreme Court said recently the exercise of discretion doesn’t cure constitutional defects such as the ones we have pointed out. I think that is very important for this committee to look at as well.
Mr. Calarco: We advocate treating this like liquor or tobacco.
Mr. Lévesque: Yes, the Barreau du Québec considers it entirely reasonable to control the sale, traffic, distribution and production of cannabis. There is no question about this because that is where the biggest players are. We are making a bet. From what I understand of Parliament’s objectives, we are betting that vulnerable people will stop taking drugs or, if they do use them, they will choose legal drugs that are controlled by the government.
The Barreau du Québec does not take a position in its brief. We are team players, so if the Parliament of Canada wants to go that route, we will do whatever we can to protect the public and follow suit.
Senator Lankin: Thank you very much for appearing and thank you for the opportunity to participate. I am not a member of this committee, but I am engaged in this bill, so I am here.
I would like to say how much I appreciate your recommendation about sentence ranges reflecting the actual reality. I’m horrified that we could think of 14 years, which is the same maximum penalty for murders and rapists. It is beyond comprehension for me. That’s not with respect to trafficking and other things, but with respect to possession.
I want to ask you specifically about the asymmetry provisions. I finally understood what everyone has been saying about this; it has taken a couple of days for me to work my mind through it. I heard a couple of comments about decriminalizing for under 30 grams and for people under the legal age of majority, whatever that is being set at in different provinces; those people could be under a provincial ticketing regime. I agree with that completely.
Could the provinces put in place a regime that has differential fines, restorative or whatever provisions for under 5 grams, and between 5 and 30 grams before it gets to criminalization? Would they have the capacity to do that? If so, what amendments to this legislation — you don’t have to write them today, but can you send us some potential amendments to the legislation that would address that issue?
The Chair: Are you asking all three?
Senator Lankin: Let me start with the Criminal Lawyers’ Association.
Mr. Spratt: In dealing with easy division-of-power topics, I was hoping you would start with the Canadian Bar Association.
There is room for the provinces to engage in that sort of legislation. This was a topic of much discussion at the Legal and Constitutional Affairs Committee because it is a tricky issue when you are looking at divisions of power and what can be done.
The provinces can’t come up with de facto criminal rules because that is in the federal government’s jurisdiction. However, if space is left open, much like we do with tobacco and alcohol, provinces can have their own rules.
Just a word of caution: I don’t think that is necessarily a cure-all because you are left with a patchwork across Canada. With alcohol, we are dealing with that, right? However, with marijuana, especially, we have to remember that even a provincial ticket for simple possession of marijuana can have collateral consequences, like crossing the border, because of how seriously it is treated. However, that approach would be much more beneficial than having it in the Criminal Code.
Mr. Calarco: There is plenty of constitutional room for a province to have a strata system. For example, the federal government said that everything under 30 grams is lawful, and it will be treated as a health issue, as a social justice issue and as a youth issue, then the province would be able to impose a health regime with variations for that. I don’t see any constitutional difficulty with that.
Mr. Lévesque: The Barreau du Québec does not have a problem with that either. For instance, if the limit of 5 grams were increased to a limit of 30 grams, we could easily imagine that a province would take a gradual approach on the first, second or the third time, or depending on the amount involved, and that would be reasonable. You are talking to legal experts about the parameters of the Constitution. We could even refer to section 7 of the Youth Criminal Justice Act to the extent that we want to avoid criminalization once a program is in place. The province could develop a program for any amount over 30 grams, but for amounts less than 30 grams, it could take a statutory approach or use gradual, administrative sanctions, as it does for road safety and alcohol.
Senator McCallum: First, thank you for your presentations. I was glad to hear what you said because I have been concerned about this law and how it applies to First Nations.
In both the Aboriginal Committee and the Legal Committee, I asked a question about First Nations and their ability regarding section 35 of the Constitution, which gives them the right to make their own bylaws. When I asked a question at the Legal Committee, a witness said that if a province has a law that goes against federal law, federal law will supersede. I said, “Okay, then you put First Nations into the mix,” because First Nations issues are unique with this bill. I said, “If they decide to go against both laws, who will prosecute those individuals, because right now they have been made to believe that their bylaws will stand?”
I was at the special assembly for chiefs yesterday. The chiefs were telling the other chiefs, “Start making your own laws.” I have heard this before at other chiefs assemblies: Start making your own laws, and we will have to take it to court. At some point, this issue will come to a head.
I believe the position First Nations’ leadership have been put in is unfair, because they have authority over their lands. Listening to all this, it doesn’t seem right.
The other concern I have is that I believe this is a discriminatory law. Can you speak to that?
The Chair: We will get all three organizations responding, but briefly, please, because we are running over time.
Mr. Spratt: Briefly, the submissions we have made with respect to marginalized and racialized groups apply with equal force to First Nations. There are some other additional considerations the committee may want to think about, however — for example, the impact this law might have on remote communities. Paying your fine within 30 days to avoid sealing your record may be more difficult if you live in a remote community. Access to legal sources of marijuana may be different if you live in a remote community, which may lead to harsher criminalization. All of those aspects can be troubling and can have an impact on First Nations.
With respect to your first question, it is a division-of-powers question that is beyond our organization’s scope to address, but it hasn’t received enough consideration.
Mr. Calarco: I will deal with the division-of-powers question, if I may. It is not at all clear that First Nations would have the authority to make such laws. Dominion paramountcy applies where, for example, a provincial and a federal law clash and cannot be reconciled. Then the federal law will take precedence. If the two laws can be reconciled, then there are areas of coexistent jurisdiction. If a First Nations law could co-exist with a federal statute, then they would probably be able to do that.
The issue of paramountcy is a fairly tricky one. The possession of cannabis is actually a law under the peace, order and good government decision since the Supreme Court of Canada’s decision in Hauser in the 1970s, not actually criminal law, which gives the federal authorities the power to prosecute.
The federal government continues to prosecute, and there can be delegations to the provinces, but generally drug offences are all prosecuted by the federal government. They would have the power to do that and would continue to have the power to do that.
You are getting into an extremely tricky area, and I am not sure First Nations would benefit from it.
Mr. Lévesque: The Barreau du Québec cannot really comment on conflict in matters of shared jurisdiction because we are not sure. It depends on a number of factors, such as the judge and the specific circumstances involved. It should also be said that judges in Canada tend to interpret the law so as to avoid conflicts. In the event of conflicts, they might give precedence to the federal government, but would they do that in this specific case? That is very unclear. We will not comment.
I agree with that. There can be very serious consequences for Aboriginal communities. That said, front-line service providers in the justice system, such as prosecutors, social workers, defence lawyers and judges, know full well — and this is in the Criminal Code — that Aboriginal offenders are not treated the same as White people for various historical reasons, essentially, and sociological ones, especially persons who live on reserves. If the law remains as it is, we can reasonably expect front-line service providers in the justice system to treat Aboriginal offenders differently, given that they are already discriminated against and overrepresented in the system.
The Chair: Thank you very much to all three organizations, all five people who have been part of this panel. We appreciate your perspectives on this very much. I think you have had quite an impact on our committee.
If the committee wants more, 10:30 tomorrow morning we have two more panels. We will also deal with social finance, Senator Omidvar, in camera, a draft report on that.
(The committee adjourned.)