Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 43 - Evidence - May 9, 2018
OTTAWA, Wednesday, May 9, 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 2:46 p.m. to continue the study of this bill.
Senator Art Eggleton (Chair) in the chair.
The Chair: Welcome to this meeting of the Standing Senate Committee on Social Affairs, Science and Technology.
I am Art Eggleton, a senator from Toronto and chair of the committee. I will ask my committee members to introduce themselves, starting on my left.
Senator Petitclerc: Chantal Petitclerc, Quebec.
Senator Housakos: Senator Leo Housakos, Quebec.
Senator Lankin: Frances Lankin, Ontario.
Senator Omidvar: Ratna Omidvar, Ontario.
Senator Munson: Jim Munson, Ontario.
Senator Bernard: Wanda Thomas Bernard, Nova Scotia.
Senator Maltais: Ghislain Maltais, Quebec.
Senator Poirier: Senator Rose-May Poirier, New Brunswick. Welcome.
Senator Seidman: Judith Seidman from Montreal, Quebec, and deputy chair of the committee.
The Chair: Today we continue to study Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts.
We have two panels today. For the first panel, we welcome the Chair and Vice-Chair of the Task Force on Cannabis Legalization and Regulation. In the second panel, which we’ll start at 4:45, we will have the Minister of Health from New Brunswick and officials from that province as well.
I thank members for coming earlier than we had originally scheduled. We reworked the schedule so that we could deal with a vote at 5:30 in the Senate Chamber and be finished by that point in time. That’s the good news. The bad news is that there may be more than one vote, and a vote could come at any time. We’ll have to keep an eye out for what is going to happen. I’m sorry for any disruption. This is really a very important meeting for us, and I hope we can get through it all.
With that, I’m happy to welcome a long-time friend and former colleague, the Honourable Anne McLellan, who chaired the task force; and Dr. Mark Ware, who was the vice-chair of the task force. You have 10 minutes for opening comments, five minutes each, in other words, or however you want to work it.
Hon. Anne McLellan, P.C., Chair, Task Force on Cannabis Legalization and Regulation: Art, you used to cut me off when you chaired economic committees.
The Chair: I’m not going to cut you off.
Ms. McLellan: We will go as quickly as we can.
Thank you very much. I am happy to be here today to offer some insights from the work of the task force, which was given the mandate, as you know, by the government in June 2016 to consult and provide independent advice on the design of a new legislative and regulatory framework.
Shaped by extensive consultations, the task force report, delivered to ministers and made public on December 13, 2016, provided 85 recommendations. The advice contained in our report is the culmination of more than five months of work.
We travelled across the country and heard from Canadians, including parents, youth and patients. We spent time with experts and organizations who shared their diverse perspectives. Indigenous experts, leaders, their representative organizations and elders were invited to participate in a variety of task force engagement activities, including an Indigenous peoples round table. These opportunities provided the task force with valuable perspectives on the interests and concerns of First Nations, Inuit and Metis communities. We met with officials from provincial, territorial, municipal and Indigenous governments who emphasized the need for close collaboration amongst all levels of government.
We travelled to Colorado and Washington and spoke to officials in the Government of Uruguay to learn from their experiences enacting systems for legal access to cannabis. We also received close to 30,000 responses from experts, organizations and Canadians who took the time to respond to our online questionnaire, including major Canadian associations such as the CMA, the CNA, the Canadian Pharmacists’ Association, the Canadian Trucking Association, the Canadian Association of Petroleum Producers and many others.
Through your committee hearings, you have undoubtedly heard a diverse variety of perspectives, just as we did. In developing our recommendations, we sought to strike a balance between implementing appropriate restrictions in order to minimize the harms associated with cannabis use and providing adult access to a regulated supply of cannabis while reducing the scope and scale of the illicit market. Our recommendations are grounded in caution that leads to an approach that is more restrictive at the outset of legalization and subject to adjustment over time if evidence supports it.
This balanced approach has guided where we have landed on some of the areas that have generated debate. I can speak to three of these areas that I understand have been of particular interest to this committee and other committees studying Bill C-45. My co-chair, Dr. Mark Ware, will speak to other issues.
We heard disparate views regarding the minimum age limit for the purchase of cannabis. The task force gave serious consideration to the various recommendations, ranging from 18 to 25 years. We recognized the increased risks associated with the use of cannabis at an early age, yet we also recognized these risks also exist for other substances and activities that are legally permitted at the age of 18. In Canadian society, 18 is generally accepted as the age of young adulthood. We believe that with appropriate information, young adults can make informed decisions affecting their lives.
Further, the evidence shows that adults from 18 to 24 are the segment of the population most likely to consume cannabis. Setting the age for legal access too high will lead to a range of negative consequences, such as leading young adults to continue to purchase cannabis on the illicit market. That market has no quality control or other assurances.
In proposing a federal minimum age of 18 and enabling provinces and territories to set it higher, should they choose, we aim to balance the need to protect minors with the objective of reducing the illicit market.
A second issue that garnered significant interest was home cultivation. We heard concerns about the health and safety risks of home cultivation, enforcement challenges and fears about diversion to the illicit market. However, these concerns generally pertain to larger scale grow operations, particularly in relation to so-called designated growers in the medicinal program. That is why we recommended that the government immediately take up a review of that category.
Arguments in favour of allowing home cultivation are premised on the belief that it can be done safely and responsibly, with appropriate limits and safeguards. As in other areas, technology is transforming home cultivation.
Ultimately, the task force concluded that allowing limited home cultivation, along with a prohibition on dangerous manufacturing processes, reasonable security measures and oversight by local authorities, appropriately accounted for health and safety concerns while providing a reasonable framework for enabling small-scale cultivation of cannabis for personal use by law-abiding adults, much like we currently see with home brewing of alcohol.
A third issue that we examined closely was whether there should be a limit on the amount of cannabis an individual could have in their possession, or on their person, at any given time. Many law enforcement officials argued in favour of personal possession limits. Although quantity alone is not indicative of trafficking, it can be an indicator when examined in conjunction with other factors, for example, carrying large amounts of cash, that could help in determining whether to lay trafficking charges.
The task force also heard from a number of respondents who argued that there is no possession limit on alcohol and tobacco and that a personal possession limit would be impractical to enforce. Based on careful consideration of these views and the experiences of other jurisdictions that have legalized, the task force recommended that the amount of non-medical cannabis that individuals can carry on their person in a public place should be limited to 30 grams. It is our view that this is a reasonable precaution that may also provide some clarity to law enforcement efforts.
I would add that, based on the conversations we had with law enforcement officials, experts and other stakeholders, the idea of a possession limit for individuals in their homes would be arbitrary, hard to enforce and, dare I say, paternalistic.
To conclude, I would reiterate one of the observations we made in our final report. No matter how long we wait and how much we prepare, it will not change the fact that the regulation of cannabis is a complex, groundbreaking policy initiative. There is no doubt that we will continue to learn as this initiative unfolds and that flexibility and an open mind will be required in the months and years following implementation.
As we have heard everywhere we went, there will be surprises, regardless of how thoughtful we believe we have been. Our challenge will be to respond with wisdom and with proportionality to those surprises.
The Chair: Thank you.
Dr. Mark Ware, Vice-Chair, Task Force on Cannabis Legalization and Regulation: Thank you very much. I’m here today to offer my comments on the legalization of cannabis, based on my professional experience as a physician treating chronic pain, as a clinical researcher exploring the therapeutic potential of cannabinoids, and as Vice-Chair of the Task Force on Cannabis Legalization and Regulation.
I am very proud to be appearing before you today. Thank you for holding these hearings and for giving me a chance to share my thoughts on this pivotal moment in Canadian history.
It’s conventional at any public presentation for academics to disclose any financial relationships that could be perceived as conflicts of interest, and in the spirit of full disclosure, I declare that my institution receives funding from licensed producers of cannabis for clinical studies and I currently consult for companies developing cannabinoid therapeutics. I’ve spent close to 20 years studying the health effects of cannabis, particularly in pain management, with grants from federal and provincial agencies as well as pharmaceutical companies.
While I fully acknowledge that there is more work to be done, I’m convinced of the potential therapeutic value of cannabis and its constituents. This is not an ideological position but one I base on my understanding of cannabis the plant and its components, our endogenous cannabinoid system and recognizing an unmet need for novel approaches to many disabling conditions, including chronic pain.
Throughout my career, I have recognized and respected the diversity of opinions on cannabis from both medical and non-medical perspectives, and I’ve come to think of the dichotomy of medical and non-medical use as an artificial distinction. Cannabis use is undertaken for a range of reasons, from purely therapeutic to purely pleasurable. A medical cannabis user might appreciate the sense of well-being that cannabis can cause, while a non-medical user may actually be self-medicating for a number of reasons, such as anxiety or insomnia.
I fully appreciate that cannabis misuse is also a significant concern, for many of the reasons that the Senate has heard, including the potential effects of cannabis on a wide range of physiological systems, including the brain, heart and lungs. Many of these effects are age and dose dependent, but importantly they are also influenced by other social determinants of health, which we cannot ignore.
In many areas, there is uncertainty as to the size of the effect, its clinical significance and the direction of causality. The endogenous cannabinoid system is an important regulator of neurological development and activity. This may be illustrated by the fact that cannabis may either relieve anxiety or cause it, may reduce nausea or worsen it. There are many examples of such apparently opposite effects, but they make sense when you understand the underlying cannabinoid neurophysiology. There is enormous variability in the plant, in our ways of consuming it and in our individual responses to its components.
These observations have regulatory implications. As a researcher, I’m fully aware of ongoing attempts to consider cannabis and cannabinoids as pharmaceutical drugs, as natural health products, even as a potential veterinary therapy. During my tenure on the task force, I became aware of comparisons of cannabis regulations to those of alcohol and tobacco, including the comparative health and economic impacts of these substances in our society.
As I’m sure the senators have come to appreciate, cannabis does not fit easily into any existing regulatory framework. This is why the task force recommended the cannabis act be put forward as a stand-alone piece of legislation. It is designed to consider the whole range of cannabis, including the industrial uses of hemp, which should not be forgotten as having economic potential as food, fibre and an important source of bioactive cannabinoids.
I suggest to the Senate that with legalization and regulation of cannabis, we are engaged in a paradigm shift in the way we consider drugs, from drugs of abuse to drugs as pharmaceuticals. Our attempts to borrow from other regulatory frameworks inevitably expose fundamental differences in the way such regulations aim to minimize risk and maximize benefit.
It’s important to note that what has led us to this paradigm shift has been unfolding in Canada over many years, beginning in 1998, when the government provided for the creation of an industrial hemp industry in Canada, and continued with the introduction of a national regulatory framework on cannabis for medical purposes in 2001.
It’s important to emphasize that the scientific research community has been preparing for this shift. The question of legalization has fostered communities of natural, clinical and social scientists who are actively developing the research and education agenda needed to support and inform this changing policy. Universities are establishing cannabis research centres of excellence. Medical societies are hosting cannabis keynotes and workshops. Networks of practitioners, researchers, policy makers and industry are forming and engaging. There is a recognition that with legalization comes an opportunity for dialogue, for innovative policy-making and for targeted research, from plant to policy, to expand our understanding of cannabis and its effects. Canada has an unprecedented opportunity to be a global leader in this regard.
This work does not come without challenges. Access to funding, materials and analytic capacity are obvious limitations, but the stigma associated with cannabis cannot be ignored. Just the smell of cannabis generates powerful and emotional responses deeply rooted in our social conditioning. Legalization is an opportunity to better inform our understanding of health impacts. It is an opportunity to improve our ways of measuring cannabis use and to calibrate such use against potential risk.
In our task force report, we called for flexibility in policy to respond to emerging data and lessons learned. The legalization and regulation of cannabis is not a single point in time but an organic process that must learn and grow.
I began this testimonial with a declaration of relationships and a clinical perspective. I believe we must all acknowledge and respect the therapeutic potential of cannabis and cannabinoids and preserve a medical perspective on the drug. This will stimulate research and education efforts to benefit patients and health care professionals and will facilitate meaningful and informed decision-making between them. Legalization allows trials of cannabis to come out of the courtroom and into the clinic.
We must each recognize and respect our own perspectives and core beliefs, acknowledge our potential biases and work to overcome them. We have to think beyond politics. The cannabis act is important, timely and necessary.
In closing, I offer this statement as a way of framing the paradigm shift in which we are engaged: Think of cannabis not as a dangerous drug with potential benefits but as a useful plant with potential risks.
The Chair: Thank you very much to both of you for giving us that information about your work and your report, and thank you very much for all that you’ve done.
Colleagues, we will use the usual five minutes, which includes both questions and answers. The shorter the preambles and questions, the more you will get in during those five minutes. We will start the questioning with the deputy chairs.
Senator Seidman: Thank you both very much for being with us today, for your presentation and the work you did on your study for the government.
I’ll start with you, Minister McLellan. We’ve heard evidence from medical professionals, in particular from experts in jurisdictions where recreational cannabis is already legal, that the THC content in cannabis products available for sale on the legal market continues to rise at an alarming rate. For example, Dr. Beau Kilmer told our committee earlier this week that in Washington state the average THC level for dried cannabis is now over 20 per cent, and some vapour products are as high as 75 per cent. I was concerned to read on page 24 of the task force report that currently, “There is insufficient evidence to identify a safe THC potency limit.” Dr. Kilmer suggested to our committee that Canada could impose a potency cap on products until more is known about the health effects of high-potency THC products, similar to the approach taken by Uruguay. What are the dangers of proceeding with legalization without any set limit on THC for dried cannabis?
Ms. McLellan: Thank you very much, senator. In fact, we did directly consider the whole question of whether we should put a cap on potency in light of what is happening. Certainly, the plants being grown today are not your grandparent’s plants. We looked at a range of factors.
There is a market for high-potency cannabis, certainly with medicinal patients. With a higher potency, they use less of the product, so there is a market for higher potency. If that market is not filled by the legal market, I can assure you that it will be filled by the illegal market, thereby undermining one of the main objectives of this public policy change.
Senator Seidman: I want to ask you about a recommendation you made. In your advice to ministers, you say the task force recommends that the federal government develop strategies to encourage consumption of less potent cannabis, including a price and tax scheme based on potency to discourage the purchase of high-potency products.
Ms. McLellan: Yes, we did, because we especially don’t want young people starting to use higher-potency products. What we suggested, and it was based on a conversation we had with Dr. Kilmer, was that in this country we could do something that the U.S. hadn’t done, which is set your differential tax limits on the basis of potency. Therefore your younger consumer, who generally has fewer financial resources, will buy the lower potency product with the lower price point and the lower tax point, and the higher-potency product will be used by those for medicinal purposes or by those who choose to use it recreationally but have greater financial means.
Senator Seidman: Do you think the fact that the government hasn’t taken up your recommendation results in a missed opportunity for harm reduction?
Ms. McLellan: I wouldn’t say it’s a missed opportunity. I would say that in relation to taxation for higher potency, that was a novel approach. Nobody else who has legalized has tried it. We suggested to the government that might be one of the harm reduction strategies and one of the incentives for young people not to go to a higher-potency product. But I would be the first to say it’s complex to get it right in terms of the actual structure of that tax.
Senator Seidman: Did the government give you a reason for not accepting that recommendation?
Ms. McLellan: No, certainly not as far as I know, no. I think probably simplification of the tax code was why Minister Morneau went with a more traditional excise tax.
Senator Petitclerc: Thank you very much for being here.
My first question is about the plain packaging, which is one of the recommendations in the report. We have seen what should be plain packaging for cannabis. It is called plain packaging, but it is different from what we have for tobacco. Is that what you had in mind when you recommended plain packaging, or should it be closer to what we are doing for tobacco?
Ms. McLellan: Mark, why don’t you take that first?
Dr. Ware: There are people far more expert than I, and probably Ms. McLellan, in terms of developing and designing plain packaging. What we think we have seen, and in my consultations subsequently with people who are experts in marketing, is that this appears to be a reasonable approach to informing people of the potential risks, of avoiding the use of potentially promotional gimmicks such as colours and so on, and ensuring that people are aware that these products contain THC.
Also,the quantity of THC — and this gets pack to the earlier question — is something people need to learn, namely, how much 5 milligrams of THC represents in terms of a dose or frequency. That will only be possible when we have a framework where we understand the range of products that are available and they can be clearly and adequately labelled.
Senator Petitclerc: I am curious and concerned about the 18 to 25 age group. A lot of the health experts and professionals have emphasized the developing brain until age 25. The bill calls for 18 as the legal age for consuming. However, there seems to be a specific vulnerability for this age group. Is this something that was discussed? Should it be addressed either in regulations or in an awareness campaign? Should we specifically target and protect that age group? How should it be done?
Ms. McLellan: We spent a great deal of time on age. That was one of the biggest issues with which we dealt. We had thoughtful submissions from a wide range of people, as you can imagine, including the CMA, the Canadian Nurses Association and others. They are all available on the public record.
However, at the end of the day, we had to balance some realities, if you like. What are those realities? One, the biggest age cohort of users in the country is ages 18 to 25. If you jack that age up to 21 or 25, you are completely undermining the purpose of legalization and regulation in the first place, or one of the purposes, which is to try to keep that big age cohort of individuals out of the criminal justice system, out of the legal system generally.
We know they are going to use. We can’t be naive. They are users now with a criminal prohibition. They will continue to use. Therefore, let’s accept that reality. Let’s have a safe supply that they can purchase that isn’t cut with things like fentanyl. We have at least one case of that in Ontario, I believe.
Let us understand that, as I said in my opening remarks, in the society in which we live, 18 is the demarcation of young adulthood. We knew that provinces would wish to be symmetrical with their drinking age. In my province, it is 18. In Quebec, it is 18. In other provinces, it is 19. However, 18 is generally the societal marker for young adulthood. It is the age at which we trust people to vote, the age at which we trust people without their parental consent to join the military and die for their country. We actually believe that with the right public information, that young adult at 18 could make the decision as to whether he or she should consume some amount of cannabis in whatever form.
Senator Munson: I’ve always known you as minister, Anne, so I will keep it with that.
I have a two-fold question. There is a divide in the Senate and there will be amendments. There are different points of view on this sort of thing.
Ms. McLellan: Fair enough.
Senator Munson: We had the Aboriginal Committee recommend up to a one-year delay. We had some senators who felt that provinces should be responsible for the number of plants in each province. Those are two issues that I want to address.
In the Aboriginal Committee, they said that there were no consultations with First Nations. Yet I heard you say in your opening statement that your group consulted 30 Indigenous groups. When that kind of conversation was going on with these 30 Indigenous groups, which sounds like a good measure of the Indigenous peoples, what did you hear? I am wondering why now, after what the Aboriginal Committee heard, they are looking for a one-year delay.
And on the issue of four plants, I don’t quite understand why that would be there, but just leave it to the provinces. This is Canada.
Ms. McLellan: Let me say a bit about the Aboriginal consultations that we undertook. Mark might like to comment on the four plants.
In terms of our Indigenous consultations, we knew from the beginning that they would be an important voice to be heard. That’s why we had a round table specifically on Indigenous issues and viewpoints. We invited a wide range of representatives from national organizations, from local communities, from the Aboriginal health care professions and so on. In fact, at all our round tables we held across the country, we made very sure as a task force that Indigenous individuals were invited. Now, not everyone who was invited from the Indigenous community came to our round tables or our Indigenous round table, but they were absolutely invited because we understood that was an important voice.
We have heard, as I know the Aboriginal Committee has heard, a diversity of viewpoints. We heard some very articulate chiefs and submissions from provinces, Aboriginal groups in Saskatchewan. Just as one example, they carefully thought out and presented to us a template for what Indigenous involvement in legalized cannabis could look like going forward. There is a group of people who have thought this through, presented us and the government with a template for Aboriginal involvement in this area. Was that every chief? Was that every community? Absolutely not.
We also heard from elders. Of course, some of the elders from whom we heard expressed the concern around the drug issues that especially their young people face in their communities, the social and economic harm that exists now. This is the thing that we need to focus on. The elders talked to us passionately about the fact that these problems exist in their community now.
The issue is: Does it make it worse or do we have a chance with legalization, based on what you heard from Mark, around research and new interventions, to actually make it better for these communities with the right supports? The Government of Canada and most provinces have committed to use some substantial part of their tax revenues for mental health programming, addictions programming, the federal government’s programs for support in First Nations and other Indigenous communities.
We didn’t hear from every Indigenous person in this country, and that is not dissimilar from any other group, but we as a task force, from the beginning, were very aware of the economic opportunities. We heard from articulate young chiefs who see this as an opportunity for sustainable economic activity in their community, if done right. We also heard from elders who were concerned about what this might mean for their young people. I think we heard the diversity of opinion you heard, which was why we clearly recommended to the Government of Canada that consultations and collaboration need to be ongoing.
But to Mark’s point, this is a process. It’s not a point in time. Those consultations and that level of collaboration can take place before, during and after legalization.
Dr. Ware: There are various levels of readiness for this process in different levels of the country. Some communities are just now beginning to engage, while some began thinking about this a long time ago. However, that does not mean we should delay the implementation of a legalization act, because it will not prevent problems from happening now. This is already going on in communities across the country, including Indigenous communities. Delaying the process simply prohibits us from engaging and dealing with the issues in a more open and transparent manner.
Senator Poirier: Thank you both for being here and for your presentations.
My first question is for you, minister. You made a comment a few minutes ago about ensuring we have the right public information out there on the cannabis legislation. The task force recommended the minister provide Canadians with that information to ensure they understood the regulatory system. However, we heard last week, from the Canadian Bar Association and also from other witnesses, that right now what many Canadians are hearing is that cannabis will be completely legal soon. This is not the case, since the bill still maintains a strong criminal regime in many aspects of possession, distribution and cultivation. When your report was done in 2016, the government clearly didn’t take the time to properly inform Canadians. To ensure that Canadians are well informed of all the consequences, whether it’s health, law or otherwise, should the government, in your opinion, delay the legislation to ensure we have the proper information out there for the people?
Ms. McLellan: No. You have just heard from my colleague that, for other reasons, he doesn’t think it should be delayed.
We noticed as we began our round table discussions across the country that the commitment of the Government of Canada, and the mandate we were given, was to engage people on legalization, regulation and restriction of access. Unfortunately, there was a group of people — and to some extent the media, but not entirely — who focused on legalization, and they forgot about the rest of the mandate. Our report is actually all about regulation and, quite honestly, restricting access, especially to young people who today have very easy access to product and nobody knows the quality of that product. I agree that, for whatever reason, people chose to focus on only one word of the mandate. Our report is embedded in the other two words: restriction and regulation.
Public education will be key. That is why we make that recommendation. Over and over again in the report, we talk about the importance of public education. That public education has begun. There is a working committee of federal and provincial officials who are coordinating public education messaging. If we go to social media, you see more and more of the public education targeted at young people. We learned from the State of Washington not to bother with a piece of paper for a young person. Don’t go on television, because that is not where they live. It is all social media. Washington had to tear up, after spending millions of dollars, their youth-focused education campaign because they did it wrong. What did they do next? They went and talked to young people to figure out how you actually reach young people. In today’s world, it is through social media. That is why if you go on social media, you will see a lot of that education.
Is it enough? Will it ever be enough? No, because public education is an ongoing process and the government, and all governments in a civil society, need to do more.
Senator Poirier: To follow up on where you are — and Dr. Ware can jump in — we know that, despite the millions of dollars the government announced in the budget, Health Canada has only spent $295,000 on its official cannabis public education campaign. The campaign that was targeted especially to youth only began in March 2018. Last year, they said Canada should boost spending on intensive public education to ensure research on the impact of marijuana and not wait until 2018. What are the consequences of the legalization of cannabis without youth fully understanding the risk? From what we are seeing here, not a lot of the money has come forward, and what has come forward only started in March 2018.
Dr. Ware: First, I don’t agree that youth are not understanding what is happening with cannabis. I think they are extremely engaged. They are tracking this, as Ms. McLellan said, through social media. This is a topic that is in the press almost every single day. It is in the news every single day. It is dominating Twitter and social media platforms. The youth are engaged. They are well aware of what the risks have been. I think they were told for decades, and in fact when some of us were youths, about the harms of cannabis and the dangers, and it continued to be widely used illicitly. I think the youth are aware. I think we underestimate their intelligence and awareness of the issues. If they are taught and tuning into the messages, including the dialogues in these chambers and what is being discussed in the public media, there is an opportunity for public education in every single intervention that we do. Everything single word we put out there will be heard by young people.
Teaching them that cannabis use is an adult activity, that the longer they delay using cannabis the safer it is for their brains, teaching them about the potency — these are simple messages. The lower risk cannabis use guidelines, published by CAMH and endorsed by multiple medical associations, all speak to the reality of cannabis use by young people and encourage and teach ways to reduce those. Those documents are out there. They have been disseminated and have been endorsed by the Canadian Medical Association. There is information out there. It is up to all of us, including parents, teachers and professionals, to distribute this information at every opportunity we have.
Senator Lankin: Thank you both for being here today.
I would like to start, Ms. McLellan, by thanking you for the three issues that you went through. They are three of the issues that we hear a lot about. I attended your earlier briefing made available for senators several months ago and heard about that. I was impressed that these issues were explored in depth by the committee and that, for the most part, the government actually heeded — and as a minister I would have done that, too, because on an issue like this, it gives you much more ability to say that there are others involved in looking at this over a longer period of time.
I want to ask you about one issue that you didn’t talk about, and that is 12- to 18-year-olds. The Criminal Lawyers’ Association was here and the Canadian Bar Association. They both raised issues, the equity issue from youth and how they are treated under the Youth Criminal Justice Act and the treatment of adults. They proposed that if a person under the age of 18 ends up going through the ticketing process, there can be all sorts of conditions put upon them, and if they violate any of those conditions,they can be brought back before the justice system and can end up facing sanctions that are much stiffer than if an adult was in the same situation. I am probably not explaining that well, but as a former justice minister you will know what the issue is there. Can you help me with your interpretation of whether we have either a constitutional equity charter issue or just a disproportionate effect on young people? Does it vary from other bills? That is what I would like to explore.
Ms. McLellan: Honestly, the reality is that there will not be a disproportionate effect on 12- to 18-year-olds. Going back to the task force report, what we make plain in the report is that we do not believe that the criminal law is the appropriate vehicle to deal with young people who are found with small amounts for personal use. That’s why you see in the legislation the 5 gram issue. That spoke to the fact that we don’t want anyone under 18 using. That is clear. The report is clear. However, we do know that some in that age cohort will use. We don’t think it is appropriate they are caught up in the criminal justice system. We left it open to the provinces and the territories to fill the gap. That was quite deliberate. It wasn’t an accident. They have all done so, to the best of my knowledge.
Senator Lankin: You don’t see that there is an inequity issue?
Ms. McLellan: No, I don’t think so. Practically, in most cases, the policeman, the beat cop, will take whatever the kid has and say, “Go home, this is a warning.” They might give the kid a ticket and there is a fine. Yes, that involves a certain issue, but that is much better than having that person tied up in the criminal justice system. It would be the Youth Criminal Justice Act.
Senator Lankin: I think we’ve heard a lot about not wanting to criminalize young people, and I agree with that. I was more interested in this technical, legal —
Ms. McLellan: I honestly do not see that issue arising practically.
Senator Lankin: I want to move on to another issue. This is about the technical writing of the law and the interaction between the federal government and the provincial governments. You just indicated that on this, it was purposefully written in a cooperative federalism approach to allow for the provinces to do that.
On the issue of home grow, it’s quite different. The provinces of Quebec and Manitoba have taken a different position and have said, “No plants,” and the federal government has said, “We won’t take you to court, but if an individual citizen takes you to court, which you know will happen, we will defend the federal record,” i.e., this is a law of general application and it’s a law of federal paramountcy.
I don’t understand the reason for that. I don’t know why a patchwork approach to the number of plants is so harmful. I don’t know why we can’t leave that up to the provinces, who will also have to deal with the issue of multi-unit buildings and other sorts of things. Do you have a reason why it would be wrong for us to pursue clarifying that the provinces do have the ability, like in the treatment of 12- to 18-year-olds, to set a limit lower than four plants, including zero plants, if they wish?
Ms. McLellan: I’m not going to get into a constitutional discussion here. That will be up to, I guess, the Attorneys General of Quebec and Canada.
What I will say is that after hearing all the evidence, we believed that cannabis is going to be legal. The plant is going to be legal. We allow people, for example, to make their own wine. They’re allowed to grow tobacco. Right? And if you are actually legalizing, does it make sense to have an absolute prohibition on the growing of what is now a plant that leads to a legal substance?
We took on board the experiences of states that have legalized, and all but the State of Washington have home grow or home cultivation with a certain number of plants. In fact, some of those states, except Oregon, have a higher number of home-grow plants than we have. We thought, on the principle of caution and public health and safety, it is better out of the box to keep this restrained to four plants. We actually don’t think many people will grow their own plants. Very few people make their own wine.
Senator Lankin: Come to my part of the province. Honestly, I’m serious. It’s regular.
Ms. McLellan: That’s because there is not readily available quality assured retail, right? There used to be lots of stills right after the prohibition of alcohol. We went back and looked.
Senator Lankin: Come to my part of the province. There still are.
Ms. McLellan: As the stores and the market regularized, very few people make their own wine or make their own booze anymore.
Senator Maltais: Ms. McLellan, as my colleague mentioned, the people of Quebec are caught in a Catch-22. This week, Quebec’s National Assembly is passing Bill 157, which will make it illegal to grow the four plants that will be permitted under the federal act. Starting July 1, are we going to see the Sûreté du Québec carrying four plants out of a house and the RCMP carrying them back in? What’s going to happen to citizens?
Ms. McLellan: Look, I am not the Minister of Justice. I used to be, but I’m not anymore. And I’m not part of the Government of Canada. We were an independent body. We heard evidence around whether people should be allowed to grow a certain number of this now-legal plant in their homes. We took it all on board and we decided, yes, caution spoke to the fact that four plants was reasonable. Let’s not be too paternalistic around this now-legal plant.
But if Quebec chooses zero home grow and the federal government has allowed four plants, I think the federal Minister of Justice has said that she will not challenge that in court, but some member of civil society might, and then the matter will be joined and it will be resolved ultimately, probably, by the Supreme Court of Canada. That is all I can say, because I am not a member of the Government of Canada.
Senator Maltais: Dr. Ware, what substances does cannabis contain?
Dr. Ware: Cannabis contains a number of substances, including a variety of chemicals, cannabinoids, THC, CBD, other acids in various other forms, and terpenes, the ingredients that give cannabis its distinctive smell.
Senator Maltais: Can cannabis contain lead or mercury?
Dr. Ware: Maybe?
Senator Maltais: What about arsenic?
Dr. Ware: If the cannabis is grown illegally, other elements could be detected, like pesticides.
Senator Maltais: Tests have been done on medical cannabis. What’s in that?
Dr. Ware: What kind of quantities are you talking about, senator? The European limits are for very small quantities.
Senator Maltais: The only laboratory authorized by the Quebec government is called PhytoChemia. It employs university chemists and researchers.
Dr. Ware: I don’t know that laboratory.
Senator Maltais: You don’t know it. Neither do I.
Dr. Ware: Are the statistics available somewhere?
Senator Maltais: Yes, all you have to do is read the newspaper. There was an article in La Presse today.
Dr. Ware: La Presse is one thing, but what about in scientific journals?
Senator Maltais: No, it was in an article published in La Presse today under the headline “Dans les coulisses d’un labo de pot.”
Dr. Ware: There are a lot of things in La Presse, but I read scientific articles. Thank you.
Senator Maltais: I thought you knew about this laboratory.
Dr. Ware: A lot of people used to think cannabis contained mercury and other substances.
Senator Maltais: These are your competitors. These people are doctors, chemists and university researchers. They have the same degrees as you do.
Dr. Ware: I understand.
Senator Maltais: They don’t get funding from cannabis companies. It’s a private laboratory. The Quebec government has hired it to analyze medical cannabis. That’s basically what you’re doing now. If you’re analyzing cannabis produced for non-medical consumption, you’re committing a crime. The law hasn’t been passed yet. If you’re analyzing non-medical cannabis, you’re breaking the law. They said they found 96 pesticides in cannabis. Is that true?
Dr. Ware: I don’t know. I don’t know anything about that study.
Senator Maltais: Have you analyzed cannabis?
Dr. Ware: No, not personally.
Senator Maltais: Oh! Thank you.
Dr. Ware: To be honest, I’m not quite sure what the question is.
Senator Maltais: You’ve never analyzed cannabis.
Ms. McLellan: Senator, could I clarify? I’m sorry, but if you were suggesting that Dr. Ware was doing something illegal currently, it is quite appropriate to analyze product and has been for a long time at laboratories for research and medicinal purposes, to know whether there are pesticides or other chemicals. Keep in mind, you have to distinguish between the recreational market, which will not be legal until whatever legislation is passed and proclaimed, and medicinal use and research where, in fact, labs across this country are certifying product as pesticide-free or chemical-free or only with these authorized chemicals.
Senator Bernard: Thank you both for being here today. I will try to ask two questions, quickly.
First, I want to pick up on a question that Senator Lankin was asking about age and the age limit. To be honest, it really scares me when I hear that police officers will have discretion and that some young people will be given a warning and sent home. I think most people here know that for some young people that will not be the case. For racialized young people and for Indigenous young people, they will not likely be sent home with a warning. So what recommendations would you have for how we address that? Because I don’t think the current plan would work so well.
Ms. McLellan: Certainly in our task force report, the point we made was that we did not want the under 18 user, if not trafficking for profit — in which case, that person probably would be brought into the youth criminal justice system — but was found with a small amount for personal use, that we didn’t want them tied up in the criminal justice system, in fact, for maybe some of the reasons you’ve identified. But we don’t want them using. The age is 18, and if you use under that age, that is against the new federal regime.
It was clear from the outset that the federal government wanted the provinces to use what we could call administrative sanctions to deal with the under 18 user who happened to be found by law enforcement; and those provincial laws deal with a warning, ticketing, those kinds of things, and not a criminal charge, not a trial, not a record.
Look, we have talked a lot and we heard a lot about racialized enforcement of the existing prohibitions, which is, again, one of the reasons that legalization, hopefully, will start to make a more equitable situation in terms of law enforcement. I didn’t say that very elegantly; I apologize.
All that to say that you have to have some system of sanction for the under 18. We’re not legalizing use for that category of people, so there has to be some opportunity for sanction. It may be a warning or it may be a ticket, but it won’t be much more than that.
Senator Bernard: My interest would be in how we guarantee that will be administered fairly and equitably.
Ms. McLellan: I think it’s with public education and training. I’m not naive. I think we are all aware of situations where, at least on the face of it, there appears to be an unfairness or inequity in the application of the law. I think we deal with this through better training of our law enforcement officials; we deal with this through more public education; and we also deal with it through helping families and those who have under 18-year-olds to get the basic message that you shouldn’t be using and your kids shouldn’t be using; this is not a good thing, and it is against the law.
There’s no magic answer here, senator. I wish there were, that we could have an equitable, colour-blind, ethnic-blind, whatever criminal justice system, but we don’t. But we are working every day to get there.
Senator Bernard: Good. I’ve heard from many African Canadians that they have not been consulted or that their voices are not there, not present. We know that the war on drugs in Canada, similar to the U.S., has led to over-incarceration, especially for single-possession use. Four cities in California have created equity programs to help people personally impacted in those communities to get an early stake in the legal cannabis business in those cities. What would you say to something like that happening in Canada?
Ms. McLellan: We did not deal with that directly. As you know, our task force report did speak to that issue in relation to Indigenous Canadians, and we did make recommendations around ongoing consultation with the government and economic opportunities for Indigenous Canadians. I think that your suggestion is one that should be taken under consideration by the Government of Canada, because there are communities — and African Canadians, I think, are one of those communities, if you look at not only experiential evidence but criminal stats, that have been affected in disproportionate ways by the existing prohibitions. So what I would say to that is that it is something I would encourage the government to look at very seriously.
Senator Mégie: My question is for Dr. Ware.
One of the arguments in favour of home cultivation is that people who use cannabis for medical purposes will get permission to grow it at home. In the course of your research, has there ever been a survey of patients who are already growing cannabis, and is the number of home growers high enough to support this argument?
Are people who are sick capable of tending plants at home, or would they prefer to buy it at an affordable price, once it’s legalized?
Dr. Ware: Besides the option of buying cannabis from a licenced producer, there are two ways that cannabis can be grown, namely by the patient or by a designated person. I don’t know the exact figures for each of those groups, but there are 10,000 or more people who have the right to grow cannabis or to designate someone to grow it for them.
As Ms. McLellan said, the biggest problem is with designated individuals, because a person can designate someone for one person, and another person, and so on. So the designated individual can end up with a fairly big grow operation, leading to a risk of diversion.
Personally, I don’t know many patients who grow their own cannabis plants, but there are some patients who find growing their own medicinal cannabis therapeutic. That is an important factor for cancer patients on chemotherapy. But I don’t know the exact number of people. I think the problem is mainly with individuals who are designated to grow cannabis for patients.
Senator Mégie: The representative of the Canadian Medical Association, or CMA, told this committee that instead of having two separate regulation systems, one medical and one recreational, there should be only one regime. What are your thoughts on that suggestion?
Dr. Ware: We’ve gone back and forth with the CMA about that. That doesn’t surprise me. Right now, out of the 90,000 physicians in the CMA, there are 11,000 who prescribe the possession or use of cannabis for therapeutic purposes for at least one patient.
At least 10 per cent of physicians have accepted the role of prescribing cannabis for their patients. I think the CMA needs to recognize that there are plenty of physicians who are prepared to do this and that it needs to develop a training component for physicians and avoid labelling all cases as “recreational.” Doing so fails to recognize patients’ right to have a discussion with their doctor, to choose their dose, and to discuss the results of the treatment. In my opinion, this is an opportunity for physicians to discuss available treatment options with their patients.
That’s why I think the medical program should be maintained, at least for five years. The management committee recommended keeping the medical program for five years and then making a decision about whether it’s still really needed.
Senator Omidvar: I have three questions. If I can get them all in, good; if not, on the second round, please.
My first two questions are for the minister. The first one is about restricting access. The legislation before us provides for harsh penalties, criminalization of up to 14 years, for providing young people with cannabis. We heard in witness testimony about social sharing, of sharing between a young adult and a minor. What did you hear in your consultations about social sharing? Do you think this penalty is appropriate for social sharing, and how do you distinguish it from the criminal elements of sharing?
Ms. McLellan: First of all, social sharing is legal. It will be legal under this legislation. That’s the reality that we have in relation to alcohol and other things. It’s a legal substance. Somebody buys a bottle of wine and brings it to my house, or I give somebody a bottle of wine. I buy 30 grams of cannabis. Somebody comes over for dinner on Friday night. I share. That’s social sharing. In fact, that is not subject to the criminal law.
But what you cannot do is sell for profit, right? If I go to the retailer and buy 30 grams and then sell it to Mark to make a profit, that’s trafficking, right? Now, am I going to be charged? Maybe. But am I going to be sentenced by any court to 14 years? No. Unless I am probably part of a criminal organization who, on a regular basis, is earning my living from trafficking in that product. And, yes, for traffickers who are, in my opinion — I’m not even going to describe to you how I view traffickers, whether they’re trafficking drugs or human beings or anything else. They are in one business, and that is to abuse the vulnerable and others for a profit motive. And, yes, they could be subject to up to 14 years under this legislation. That would be the maximum. That would be someone who was part of a criminal organization that had been trafficking and exploiting not only the purchaser but mules and other things for a very long period of time.
Most Crown prosecutors will not ask for 14 years. But social sharing is legal. That is legal. It is trafficking that could carry up to 14 years.
Senator Omidvar: Thank you. I find that interesting. It’s not what we had heard as an interpretation, but that’s useful.
Ms. McLellan: We heard a lot about social sharing, right, Mark? It’s like social sharing of wine or whatever. As long as you’re not doing it for a profit motive, reselling it, it’s part of civil society as long as you’re social sharing a legal substance, which my 30 grams will be after this legislation is proclaimed in force.
Senator Omidvar: Let me stay with restricting access to young people. The legislation before us proposes that young people who carry more than 5 grams will be criminalized.
Ms. McLellan: Not criminalized. Not under 18, no. The criminal law will not apply to people under the age of 18 if they have 5 grams, in and around 5 grams.
Senator Omidvar: I’m saying over 5 grams. What do you think about this 5 gram limit? Is it too low, too high, or just right?
Ms. McLellan: Mark probably has views on this, as a physician. We talked to a lot of experts about the gram limits. Now, we did not talk specifically about the 5 grams. We talked about 30 grams and whether that was enough and what that meant and so on. Five grams, depending on how it is used, would be more than sufficient. But I don’t even want to talk about the under 18 person using, because that is against the law. We know some young people under 18 will use. We don’t want them criminalized and potentially having long-term effects on their lives. The government chose this 5 grams. It is sufficient for any young person under the age of 18 to be using.
Mark, do you want to add to that?
The Chair: Sorry. I’ll put you down for the second round.
Senator Housakos: I’ve had a lot of concern regarding this legislation and, after what I’ve heard from the testimony so far this afternoon, I have even more concern, quite frankly.
In regard to your point, Ms. McLellan, that traffickers are people that we don’t encourage and we certainly have no time for, we share that view. But if we go back to prohibition, when prohibition ended, the people who were the happiest were the bootleggers. They’re the ones that had the big bonanza that came out of it. It went from being illegal to legal. Most of these traffickers right now have prepared themselves very well for the inevitable passing of this bill and are quite prepared to go from illegal to legal. That’s a whole other story.
The concern I have, addressed partly by my colleague Senator Petitclerc and Senator Bernard, is the minimum age use of 18. It’s a huge concern, regardless if it’s legal or not legal. Despite the testimony today by Dr. Ware, if you listen to the Canadian Medical Association, if you listen to the association of nurses across this country, if you listen to the association of pediatricians across this country, if you listen to the administrators of post-secondary and secondary education in my province — and I’ve met most of them, they’ve written to me, I’ve read their studies and reports on it — not a single one of these people who deal with teenage kids and people between the age of 18 and 21, CEGEPs in Quebec, think this is a good idea.
I find it incredible that at bare minimum we don’t recognize that every person in the medical field — and let’s stop mixing medical use of marijuana with recreational use of marijuana, because a number of questions in testimony today were addressed to medicinal use of marijuana, which has been legal in this country for a very long time. Recreational use on the part of teenagers up to the age of 24 is undoubtedly recognized by every medical expert in this country to have a harmful effect on their mental development. So I find it very difficult to accept as a parliamentarian that I will encourage that age group to use marijuana, knowing full well this is completely at their detriment.
With all due respect, if a police officer stops my 17-year-old at a park with a joint, I don’t find it acceptable for that police officer to say, “Put it in your drawer and you can smoke it when you turn 18.” It’s harmful for him at 17, harmful for him at 18 and harmful for him at 20. I think we as the government and legislators should do the reasonable thing at bare minimum. I understand all the other objectives of this piece of legislation, if we can go back and forth, but I can’t understand for the life of me why we think 18 is an appropriate age to start, and to compare it to tobacco or alcohol or somebody signing up to fight for the country in the military, no. This is a psychotropic narcotic.
Ms. McLellan: So are alcohol and tobacco.
Senator Housakos: No, they’re not psychotropic medications. They’re not. Doctors who have come before this Parliament to address various committees have said this. Of course, minor exceptions are the case.
The Chair: Can we hear the answer, please?
Dr. Ware: I’m not sure I heard a question. It was a powerful statement.
Senator Housakos: The question is regarding the age group of 18.
Dr. Ware: Why it should be allowed at 18? A couple of things. Setting an age of 18 does not encourage people over 18 to use cannabis. That is not the purpose, certainly in no language. It sets at age at which an informed individual can make a decision to do something, which is entirely in their right to do so.
We’re also concerned about the statements that you made about the detrimental effects. Yes, there are young people who will be affected by the early use of cannabis, especially those who are 12 to 15 years old. It is quite clear that the risks to the brain are much higher the younger you are. Those risks start to drop as you get older, and there’s a certain point at which the risks start to become less and less significant. Whether you choose 18, 19, 21 or 25, you’re already on the downslope of that risk curve. The maximum risk is at that very sensitive age of 12 to 16, and that is well protected within this legislation.
Senator Housakos: Why not lift it to 24?
Dr. Ware: As Ms. McLellan has pointed out, there’s a competing priority, which is avoiding the criminal prosecution of people who use cannabis at that age.
Ms. McLellan: Which is the largest use cohort, and we know they will use anyway. They will be subject to the criminal law and their lives dealt with in a series of unfortunate ways. They will continue to purchase product that is cut with gosh knows what. They will feed the black market.
If we lived in a perfect world, I guess we would all strive for that, but that’s not the reality. You have to balance, as legislators, competing public policy objectives and come to a conclusion as to where the balance is best struck to achieve the public policy objectives that you decide are paramount. And that’s what we did in this report.
But to Mark’s point, nobody is encouraging use. Look, if you ask me personally, I would prefer nobody ever used, right? I would probably prefer that nobody drank or smoked tobacco. But that is not the world in which we live. Therefore, how do we fairly deal with this particular substance in light of the social, economic and criminal realities that we face as a country?
Senator Patterson: I’d like to pursue the Aboriginal consultations that Senator Munson mentioned. You said they were an important voice to be heard. There were articulate First Nation groups talking about Aboriginal involvement and revenues.
We heard the First Nations Tax Commission say at our Aboriginal Peoples Committee that First Nations are governments like provinces and territories. They will deal with the impacts of mental health and educational and recreational needs. They are being courted to establish production facilities on reserves and, as you said, they need involvement and revenues. Yet, they are left out of the excise tax regime. Provinces and territories in Canada have divided that up.
Given your concern and your comments, what do you think about the scheme recommended by the Aboriginal Peoples Committee that 20 per cent of production licences be allocated to First Nation governments and that First Nations be given a share of the excise tax revenue?
Ms. McLellan: As a task force, we did not make specific recommendations. We heard that this was both a potential economic opportunity for Indigenous communities and also a potential risk in terms of addiction and other kinds of issues for young people. That’s why we said to the Government of Canada — and, quite honestly, other governments — that what you need to do is consult more broadly with Aboriginal Canadians and through tax authorities like the Aboriginal tax commission and figure out what actually makes sense, taking into account the diversity of Aboriginal voices that we heard. Nobody should think that the Aboriginal community speaks with one voice. They don’t. They are as diverse as any other community in this great country. That’s why, when we heard that diversity of voices, we recommend — and it’s clear in our report — that the Government of Canada and provincial governments, quite honestly, need to do further consultation with Aboriginal communities to determine what involvement they will have. Whether the Aboriginal tax commission will be involved, those things, quite honestly senator, were above our pay grade as members of the task force. However, what we did identify was that these were key issues of opportunity and of possibly risk for Aboriginal communities and governments at all levels needed to take that on board.
Senator Patterson: But the First Nations Tax Commission said that the horse will be out of the barn if the legislation is passed without these issues being addressed. Manny Jules said, “You will have the same issue as we have with tobacco on reserves, illegal operations and foregone tax revenues.”Would you not agree that if we are to respectfully engage with Indigenous governments, we should take the time before proclaiming this legislation that the Aboriginal committee recommended to do those proper consultations rather than present them with a fait accompli when we are doing consultations?
Ms. McLellan: No, I wouldn’t because I don’t think you are presenting them with a fait accompli. I would say that legalization and regulation move forward on whatever appropriate time frame is determined, but that those discussions continue, just as they will continue with the Department of Indigenous Affairs and the economic programs they have in place to work with Indigenous communities in terms of joint venture opportunities and other opportunities.
To my colleague Mark Ware’s point, this is not a point in time. This is a process. This is something we will be working on together for years. I agree with you in this: The work must be done. It must continue. But it will not and does not need to be done finally before proclamation.
Senator Patterson: You have engaged with Inuit Tapiriit Kanatami, according to your consultations.
Ms. McLellan: They were invited to submit.
Senator Patterson: The president told our committee that consultation with the ITK, which is basically a national lobbying organization, is not consultation with Inuit. Did you get any other input from Inuit as required under their land claim agreements in the regions?
Ms. McLellan: I do not remember specifically. Do you, Mark? I remember the submissions from some of the Inuit organizations. If you look at the appendices — I won’t take time to do so now — you will see everyone from whom we heard, except for individuals from all over the country. We did have a small number of individuals from Nunavut, for example, who did submit, but a very small number of individuals.
Senator Patterson: Thank you.
The Chair: Before I go to round two, I will insert the chair’s opportunity to ask questions here. I will time myself at five minutes, of course.
Last week, we heard from three law associations, the Canadian Bar Association, the Canadian Criminal Lawyers’ Association and the Barreau du Québec. The testimony from them indicated some concern about too much criminalization still in this whole process as it comes out in Bill C-45. A couple of my colleagues have mentioned social sharing, for example.
There is also this question of being close in age. That is, an 18-year-old gives to a 17-year-old and the 18-year-old could be subject to criminalization. That person is still a young person. We don’t want to criminalize our young people, is what we were hearing from them. Young people aren’t just the ones under the age but over the age, in their 20s as well. We also heard that a young person, say a 15-year-old, with 15 grams instead of 5 grams could be subject to prosecution under the Youth Criminal Justice Act.
We also heard from them that, while this 14-year sentence may not be handed out in many cases, if somebody is charged under it, even if they are only given a much smaller sentence, this could affect them in another way if they happened to be a landed immigrant or a refugee. If they happened not to have citizenship status, they could be removed from the country, which is an additional penalty — a horrendous penalty to be deported from the country — not for getting 14 years but just being charged under the same criminal act provision. Those are one set of issues.
We talked about trafficking as well. I think we all agree that we want to get the big criminal organizations. We want to throw the book at them. But there are some smaller players in all of this who, for one reason or another, poverty or whatever, get involved in these things or corralled into these things and perhaps don’t deserve to have a major criminal record. If you start to make comparisons to alcohol and tobacco about these kinds of things, the penalties aren’t nearly as severe. What do you think about that situation?
Ms. McLellan: Keep in mind, first, we did not recommend in our task force report what the various sentences’ maximums might be.
Having said that, I think what the government wanted to do was send a message to illegal criminal organizations that if you are trafficking in cannabis, especially to young people, and taking advantage of the youngest, the poorest, the vulnerable of whatever kind, there is potential for you not only to be charged but also to have a criminal record and get significant time.
Regarding that significant time, senator, as I said earlier, can I guarantee that it will only be attached to those who are members of well-known criminal organizations that every cop knows in this country and knows exactly what they are doing and the misery they are bringing to people in their communities? No. I can’t guarantee you that. But that’s true of our justice system now.
I realize, as I said to Senator Bernard, that it is not a perfect system. What you have identified are issues for our system right now. You have to count on prosecutorial common sense and discretion and on law enforcement, as we do now in relation to these matters. This is why you see the number of charges for possession for personal use of small amounts going down, down, down, because the police have said to themselves, “You know what? This isn’t worth our time. We have bigger issues to deal with.”
The Chair: Shouldn’t we just put more into fines or community service or education, restorative justice kinds of things, for young people who get caught? We want to get the big fish but maybe not the little ones.
Ms. McLellan: I agree. I understand that, probably, it is asking a lot for some people in this country — and I get that — that you have to have faith that your system of criminal justice works for most people in the way it should.
To your point around diversion out of the criminal justice system, in fact, that’s exactly what the Youth Criminal Justice Act does. I enacted that legislation. You and I were part of the government that brought in the new Youth Criminal Justice Act, where we put an emphasis on diversion out of the criminal courts for young people who were found to have minor violations of whatever law it might be. Indeed, that’s what we would hope for the under-18 who was caught selling to a 16-year-old, that in fact that person is not dealt with in the court system, in most cases, but is dealt with under the Youth Criminal Justice Act and is dealt with a way that makes more sense for him, her, their family, and so on.
Am I asking you to believe that the system generally — not always — acts in a common sense, reasonable, proportionate way? Yes, I am.
The Chair: Thank you. My time is up. I will go on to round 2, but, first of all, I’ll tell you that you can see the flashing lights. That tells us that there’s going to be a vote at 5:09 on Bill C-49, the transportation bill. Remember, we also have a vote at 5:30 on Bill S-219. We’re at the end, so we can’t get into this second round.
It is time to change panels because we have the Minister of Health from the province of New Brunswick here. We don’t have a lot of time. We can probably do a half an hour, and then we can come back.
Thank you very much to the Honourable Anne McLellan and Dr. Mark Ware. Thank you for all of your work.
I’m very pleased to now welcome a delegation from the Province of New Brunswick, led by the Honourable Benoît Bourque, who is the Minister of Health; Dr. Jennifer Russell, Chief Medical Officer of Health; Neill McKay, Senior Policy Advisor on Health; and Patricia Steeves, Chief Operating Officer, Finance. Everything is covered. Welcome.
I must say, for your benefit and for the benefit of my colleagues, first of all, that we appreciate that you have come a little early because we have a vote at 5:30, but, as we found out just a few minutes ago, we have another vote that has come up at 5:09. So we will have to adjourn about five minutes to 5:00. Is that good enough, everybody, 14 minutes to get across the street?
Hon. Senators: Agreed.
The Chair: Tight, but we’ll get there.
If, in that period of time, we can complete our dialogue with our guests, then fine, but, if we can’t, we can come back after the votes. That would mean coming back about 10 to 6:00, until about 6:15.
First of all, I want to know whether that’s possible.
Hon. Benoît Bourque, MLA, Minister of Health, Government of New Brunswick: Yes.
The Chair: Yes, it is? Okay. What about the rest of you? Do you think you could come back? On the other hand, if we get all of the questioning in by five to, then we’re done for the day. We’re done until tomorrow morning.
How about if we try three minutes instead of the usual five? You’ll have to talk a little faster. Quick questions, quick answers, and we might get done by five to. With that, I’m going to keep quiet and start by asking the minister to say a few introductory comments, please.
Mr. Bourque: Thank you very much, Mr. Chair, and thank you to all of you. We really appreciate being able to come before this fine committee and to give our opinions and our experiences regarding this important topic.
As you know, I’m Benoît Bourque. I am the Minister of Health for New Brunswick. I do have Dr. Jennifer Russell, Mr. Neill McKay and Ms. Patricia Steeves with me.
I just have a prepared statement that I will share with you.
The Government of New Brunswick is committed to ensuring a seamless approach to legalizing the adult use of cannabis, an approach that will prioritize public health and safety concerns while also allowing our province to maximize the economic opportunities presented by this emerging economic sector.
In the summer of 2017, I had the pleasure of serving as chair of the New Brunswick Select Committee on Cannabis. In September of that same year, our committee released a report, which is entitled Consulting New Brunswickers: The Legalization of Recreational Cannabis in New Brunswick.
These consultations produced several areas of consensus: ensuring an appropriate model is implemented, as there is only one opportunity to do so; keeping cannabis out of the hands of youth; shutting out organized crime; investing in targeted education and awareness programs; addressing health concerns; and ensuring public safety.
Thanks to the briefs and comments received during the public consultations, we were able to put together a true reflection of the thoughts and feelings of New Brunswickers on this important issue.
As a result, the New Brunswick legislative assembly has introduced and passed a comprehensive package of bills to prepare for the legalization of adult-use cannabis in New Brunswick. This includes the Cannabis Control Act, which governs the purchase, use and cultivation of cannabis in the province; the Cannabis Management Corporation Act, which governs the new Crown corporation that will be responsible for the retail sale of adult-use cannabis in New Brunswick; and the Cannabis Education and Awareness Fund Act, which will ensure revenue from the sale of cannabis is used responsibly to prevent addictions and promote the responsible use of cannabis.
Mr. Chair, New Brunswick is prepared to meet the original target date of July 2018. As I mentioned earlier, we have the legislative framework in place to ensure public health and safety is respected and provide for the purchase of cannabis at Crown-owned stores.
Generating revenue from the sale of cannabis has never been our primary objective. However, postponing the effective date, which is currently scheduled for July 2018, will have negative financial repercussions for the province of New Brunswick.
With the bill’s effective date fast approaching, there are two things that would help the province. We need to establish an implementation date, so we can continue our planning work, hire the necessary staff for our retail stores, and give our employees the required training.
We have also expressed the need for the federal legislative framework to provide for a transitional period so that product can be legally transported from suppliers to the retail environment so that we are ready for sales to the public.
The Government of New Brunswick also has concerns with respect to the commercial production of cannabis outdoors, including increased potential for diversion of cannabis to the illicit market; increased potential disruption to adjoining communities, including odours emitted by cannabis during the flowering phase of plant growth; potential increased exposure to airborne pathogens, such as fecal matter, pesticides and herbicides used in large-scale outdoor agricultural activities; and diversion of significant expanses of agriculture land to cannabis, away from agri-food production.
The Government of New Brunswick believes that limiting cannabis production to indoor facilities, meaning greenhouses and buildings, will optimize both the regulatory efficiency of Bill C-45 and the potential economic benefits of legalization. We think that indoor cultivation will allow all regions of Canada, including New Brunswick, to benefit from investments in cannabis production facilities. That way, the benefits will not be limited to regions with a climate that makes outdoor production viable.
I want to thank you for your time. We would be happy to answer any questions that you may have.
The Chair: Thank you very much.
We will do three minutes this time, but I can put people down for a second round if need be. We will start with the deputy chairs.
Senator Petitclerc: Thank you so much for being here.
I find the model of the fund is interesting. The revenue from the sales is going to a fund. Can you expand on that and quantify the percentage? How structured it is at this point, and what you will do with that fund?
Mr. Bourque: Yes. We will have a fund that is dedicated for awareness and education. It will come from a portion of the sales. I will also pass the microphone to my colleagues who have a better detailed understanding of how that fund will work and in terms of how the money will be collected.
The Cannabis Education and Awareness Fund will help the province deliver on its responsible use and corporate social responsibility policies through financial support for research and program development in numerous areas, including programs for schools, consumer information and harm prevention measures. The fund will be used to support education and awareness programs on the responsible use of cannabis, including the development and implementation of policies and programs regarding harm reduction; research projects; cannabis and its use; responsible use of cannabis; and prevention of cannabis abuse.
The Cannabis Education and Awareness Fund will flow from the licensed producers who have committed 2 per cent of the value of their gross sales to support the objectives of the fund. Basically, 2 per cent of their gross sales is what will be collected by government within this fund. In addition, for this current fiscal year, 2018-19, the government has committed to providing $250,000 as an initial investment to ensure programs can begin prior to July 2018. We will only be able to collect once this becomes legal, so before that, we have committed $250,000 within this fund so we can do what I outlined previously.
Those funds will be available through a broad range of applicants, including researchers, nongovernmental organizations, departments and agencies. Once legislation is in place, the Minister of Finance will appoint an advisory committee to recommend projects to be funded each year. In total, there will be seven committee members. I can give the list if you want. The advisory committee will help establish eligibility guidelines and criteria to make the recommendation regarding allocation of funds to applicants.
This gives us an opportunity, at its inception, to ground the culture of this new regulated industry with a focus on corporate social responsibility. We feel that it is important. Fortunately, we have had a good collaboration with the licensed producers that will be within our province, because those are the first ones we have been dealing with. There will be licensed producers from other provinces eventually, but we are confident we should be able to strike that same deal.
The Chair: Sorry, I need to move on.
Senator Seidman: Thank you very much for agreeing to be with us today. I really appreciate it.
Minister, I would like to ask you a question about your province’s approach to home growing. While some provinces will allow home growing as per Bill C-45, New Brunswick has proposed additional restrictions, requiring that plants be grown in a separate locked space if they are indoors and in a separate locked enclosure at least 1.52 metres high if they are outdoors. Why did New Brunswick feel it had to take these additional precautions when it comes to the homegrown provisions in Bill C-45?
Mr. Bourque: Thank you for the question.
As you know, there are some provinces that want to be even more restrictive and not have any home growth. We feel that we are at ease, for now, with the federal proposed legislation and having up to four plants. We can live with that. However, we added a few extra restrictions.
I guess the idea here is to show that this is a restricted, controlled product. We can make an analogy when it comes to firearms, for example, where they should also be stocked and locked in a specific area. We can make that same parallel. We don’t want it to be accessible to children, for example, to minors. I think this is a way for us to show that this will help to do that.
It allows the owner, or the one living in that space, yes, to grow; but at the same time we are sending a clear message that you can’t do it willy-nilly. You have to do it in a very controlled atmosphere, to show that this is not any kind of product.
Senator Seidman: You did mention that other provinces, like Quebec and Manitoba, for example, have chosen an even more restrictive approach and that is not to have home grow at all.
Mr. Bourque: Right.
Senator Seidman: And I presume that you think that provinces should have the right to make these decisions based on what’s right for their communities.
Mr. Bourque: It’s difficult for me to comment on what the other provinces feel they should do. I certainly feel that, at least in New Brunswick, we are at ease with the way Bill C-45 explains that part of the bill in terms of home growing. But we do agree that we have that opportunity and possibility to restrict it even more, which I feel is right for us to have.
Senator Seidman: So each province should have the right to make decisions for themselves?
Mr. Bourque: Like I said, I think provinces should have flexibility in terms of how you apply, yes.
Senator Poirier: Welcome, minister.
Several of the witnesses we’ve heard from have expressed concerns about home growing. The RCMP is worried about having enough officers. Municipalities wonder if they’ll have enough financial resources. Health experts fear this policy is inconsistent with the bill’s public health objectives. Real estate agents are concerned about safety and cleanliness in homes. What’s more, we know that some provinces have decided to ban home growing altogether.
What data did your government use when it decided to allow not only indoor growing, but outdoor growing as well? I think that New Brunswick is the only province so far that plans to allow outdoor growing.
Mr. Bourque: I don’t know what the other provinces have or haven’t done in this area. What you say is perfectly possible, senator. Speaking for ourselves, we, as a government, feel at ease applying the home growing measures proposed in Bill C-45.
That being said, we have added some fairly strict regulations. As I said in my earlier answer, we are implementing much stricter regulations that go beyond what the bill proposes, to make it clear that this is a controlled product that needs to be handled very carefully. We think that, with these measures, we are sending a clear message that we can in fact control this product.
Another important thing, which I believe is part of our regulations, is that any cultivation needs to be approved by the homeowner. In the case of an apartment building or any kind of rental housing, the owner’s approval is required. Without that approval, it’s illegal to grow the plants.
Senator Poirier: Your government was the quickest in Canada to table a bill to regulate cannabis. However, since your bill was tabled, several committees have heard from many witnesses who have been full of concerns. We’re wondering if you might have been a little too quick off the mark. Were you as quick to allocate money to a possible educational campaign, in schools, for parents and youth?
Mr. Bourque: I would say yes. We quickly created a fund with an initial budget of $250,000.
Senator Poirier: Wasn’t that only just announced?
Mr. Bourque: We’re showing leadership. That $250,000 is a commitment that was made as part of the current budget, which started April 1.
I think we’re handling this issue responsibly.
Senator Munson: Thank you for being here. From another perspective, it’s nice to hear a government say that they’re at ease — you used that terminology — and are comfortable with this particular timetable despite the concerns we’ve heard about.
Minister, I’d like to ask Dr. Russell, from a medical officer’s point of view, your perceptions of how New Brunswick can deal with this and what statistical work you have done in the past to gauge the population’s, or some members of the population’s, use of marijuana.
Dr. Jennifer Russell, Chief Medical Officer, Health, Government of New Brunswick: The fact that public health has been at the table for all the discussions leading up to the legalization and actual writing of the legislation has been a key component of a lot of the aspects of what we’ve been able to accomplish.
All the things that contributed to that included speaking to our partners in Colorado in terms of their lessons learned, working with CCSA, working with our partners across the country and having many discussions with the FPT Task Force on Cannabis Legalization and Regulation. All of these things contributed to a lot of evidence-based information around what we should be putting, first and foremost, as the important aspects of this from a public health perspective, protecting vulnerable populations such as youth and harm reduction.
So those are the types of things that we’ve been able to do to contribute to the type of legislation that we have right now.
Senator Munson: The whole issue that we’re dealing with is we have to move on this in the Senate in the next couple of weeks, by June 7, and yet there are people who have felt that this should be delayed. But that’s not your perspective. You’re ready, minister?
Mr. Bourque: We feel that we are ready. Actually, we would prefer that we would start on July 1. We are ready. I was talking to staff, and it takes approximately 10 weeks before the start date so we can get ready, for example, to hire staff. We are already starting next month to pay rent on certain buildings. So if we delay a month or two, it might not make a big difference, but if we delay a lot longer, that is all expenses that we are incurring that will become costly for us as a government. We feel that we’ve gone about it in a responsible manner that ensures — again, I’m speaking as Minister of Health as well — that we have done it in a way that we are ensuring public safety and ensuring public health. So to answer your question bluntly, yes, we feel that we are ready and we want to proceed as soon as possible, starting on July 1.
Senator Raine: Like many people, I’m concerned about the impact on the developing brain. The research we’ve been hearing at this Senate committee is quite equivocal that the age should be somewhere between 21 and 25. I’m wondering what kind of debate your province had before you set the minimum age to 19, which is significantly lower than that. Could you say a bit about that?
Mr. Bourque: I’ll try to be brief, because we debated this at length last summer while I was chairing the special committee.
Yes, we are quite familiar with the data that I’m sure you have heard as well regarding the development of the brain, often until the age of 25, depending on each person. It is striking a balance between the health risks and the reality of the usage of the product. The reality of the usage of the product is that they start a whole lot younger than the age of 25. If you prohibit it, as we have done for I don’t know how long — are we talking decades and maybe a century or two? — obviously, the effects have not been all that conclusive.
Regarding the idea of striking a balance at 19, for us — we feel that college age is an important one. That’s why we want to make sure that, at least when they’re minors, it’s completely prohibited, and we can focus more on that. That’s why the whole thing about public education, awareness campaigns will be more efficient than setting an age to say, “This is prohibited under that age.” That’s why we want to focus more on that.
Senator Raine: Do you think it should be the same age all across Canada?
Mr. Bourque: That’s a good question. I don’t know how to answer that. I think it’s important that it is relatively close.
Senator Raine: I don’t understand why the provincial governments couldn’t get together, especially the health departments that are talking to each other.
I’m sure you’ve heard of amotivational syndrome, which is a defined syndrome in the States. If you google it, you’ll understand: “amotivational syndrome.” Everybody should google that.
On the public health side, I know you’re going to do the education and that’s great. However, we are normalizing the use of a product that is quite harmful. Certainly we’ve heard a lot of things here. From the public health point of view, I want you to tell me: Are you ready for the mental health issues that seem to come with this kind of use of this substance?
Dr. Russell: With respect to normalization, unfortunately, in the eastern part of the country, including New Brunswick, we do have some of the highest rates of usage among youth in this country. In terms of normalization, we’re already there, which is unfortunate.
We would like to take advantage of using the messaging, the $250,000 that has already been dedicated. We have educational campaigns coming out in two phases for social media to address those concerns with the general population and with those populations at risk. The way that messaging has to happen is in a way that doesn’t actually increase people’s desire to use. At the very best, we would like to see our rates not increase in those populations and we would love to see them go down. Again, with that revenue, we have that opportunity to put that money to that use.
Of course we’re very concerned. The other issue around normalization is that if more people will be using cannabis, they will be using tobacco products. We’ve made such great gains in smoking cessation and smoking rates that we would not want to see those rates increase. We want to do everything to decrease normalization and to minimize normalization. We really want to be as aggressive as we possibly can, for those reasons.
Senator Omidvar: Thank you all for being here. I notice you’re not just ready, you seem to be a bit über-ready.
I want to ask you about whether your First Nations communities are also ready and what their involvement and their feedback to you have been. We have heard from the Aboriginal Affairs Committee that implementation of this legislation should be delayed for up to one year. What is your response to that?
Mr. Bourque: When I look at my experience as chair of the committee that we had last summer, we had a First Nation community. We actually had the chief come up and say, “We are ready. We want to work with government and we want to implement this with you.” They were actually quite eager, if I can use that terminology, to get started with that. Now, this community is involved with a licensed producer in the northern part of the province, and they already have arrangements to hire people from that First Nations community to work at that licensed producer’s facility. I can say that I’ve heard differently, at least in New Brunswick, regarding their willingness to get involved. We haven’t heard from all the communities, and there are many communities in New Brunswick, but I clearly recall that example.
Senator Omidvar: What was their point of view on the social harms and mental health harms associated with cannabis, in particular for a community that is so overrepresented in the criminalization?
Mr. Bourque: They didn’t raise that issue very well. We’ve heard more, actually, about absent economic opportunities for those communities. So if there is economic opportunity, that means they have jobs and better self-esteem. Once you have that, you are more apt to being less involved in criminal activities. I would counter-argue that.
Senator Bernard: Senator Omidvar and I are on the same wavelength. I was wondering about the Indigenous as well. In briefing notes I’ve seen about your work, one Mi’kmaq First Nation is involved in economic activity. Are there others? You have Mi’kmaq and Maliseet, a number of communities.
Mr. Bourque: Yes, you are correct. There is one Mi’kmaq community that is heavily involved. I am not familiar and I cannot comment, simply because I don’t know. There weren’t any more that came in front of our committee regarding this. Neither positive nor negative, I can’t speak to that.
Senator Bernard: You’re saying they didn’t come in, but did your group go out to those communities?
Mr. Bourque: We presented in seven different locations across the province, and yes, we were close to many Indigenous communities. I also know that a number of them have expressed interest in Opportunities New Brunswick, which is our economic development branch within government. They have reached out to them because they also want to be a part of this economic opportunity, and not just that one in particular.
Senator Bernard: Is this seen as a bit of an economic boon for New Brunswick?
Mr. Bourque: I wouldn’t say a boon, but I would say opportunity, for sure.
The Chair: That exhausts my list. We’ve moved along very quickly here, so we will not need to come back at 10 to 6:00. We now have almost 20 minutes to get across to the chamber for the vote.
I want to thank you, minister, and your officials for being with us. We’ve appreciated it. We’ve appreciated getting a provincial perspective from you.
(The committee adjourned.)