Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 45 - Evidence - May 25, 2018
OTTAWA, Friday, May 25, 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 8:03 a.m. to continue the study of this bill.
Senator Art Eggleton (Chair) in the chair.
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
I am Art Eggleton, senator from Toronto and chair of the committee.
I will ask the senators with us this morning to introduce themselves.
Senator Petitclerc: Chantal Petitclerc from Quebec. Good morning.
Senator Dean: Tony Dean, Ontario.
Senator Omidvar: Ratna Omidvar, Ontario.
Senator Gold: Marc Gold, Quebec.
Senator Deacon: Marty Deacon, Ontario.
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Oh: Victor Oh, Ontario.
Senator Poirier: Rose-May Poirier from New Brunswick. Welcome.
Senator Tannas: Scott Tannas, Alberta.
Senator Seidman: Judith Seidman, Montreal, Quebec, and deputy chair of the committee.
The Chair: Today, we continue with our lengthy deliberations or hearings with respect to Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts.
There are four purposes of today’s sessions relate to the other committee reports, the reports that came from the Legal and Constitutional Affairs, Aboriginal Affairs, National Security and Defence, and Foreign Affairs and International Trade Committees. We have allotted hour for each of these reports.
We have had a report from the steering committee, and the chairs and the deputy chairs have commented on their reports. Now we have the officials. We invited ministers and, in lieu thereof, parliamentary secretaries. What we have today are very competent officials.
We need to know the recommendations and, as an example, I will take the first one with the Legal and Constitutional Affairs Committee The recommendations start on page 10. The first group of eight recommendations was passed unanimously by the committee.
I would like to hear from our officials, and this would follow in the other cases, the reasoning behind the government’s position, the position that was put through the House of Commons, or the position of the departments with respect to these amendments.
They don’t have to necessarily address the policy question in the amendment but why these particular changes were not put into the act at the Commons stage or at its committee stage. What is it the government feels is right about the bill that it doesn’t require these kinds of recommendations?
We could start with asking our officials to comment on them, and then take questions from the members of the committee. Since that sounds reasonable to everyone, first up, as I just pointed out, is the report of the Standing Senate Committee on Legal and Constitutional Affairs.
We have officials from Health Canada with us, Eric Costen and John Clare. They will be with us for all four this morning. From the Department of Justice, we have Diane Labelle, Carole Morency and Paul Saint-Denis.
Welcome to all of you. Let me pose the first question about the recommendations of this committee that were unanimously passed and, as I said, appear on page 10 of their report. Would you comment on the rationale for the government’s position vis-à-vis the particular amendments?
Eric Costen, Director General, Cannabis Legalization and Regulation Secretariat, Health Canada: Thank you, Mr. Chair and members of the committee. We are happy to be back before you. We will certainly do our best to provide some commentary on the reports we will be looking at throughout the morning.
With respect to the nine proposed amendments that were unanimously proposed out of the Standing Senate Committee on Legal and Constitutional Affairs, they will likely not surprisingly require a bit of handing off among those of us at the table. Perhaps even in one instance we may, with your indulgence, lean on one of our colleagues from Public Safety Canada.
Without necessarily eating up any of the clock with introductory comments, we can start in with the first one. I turn to my colleague Diane Labelle, who will begin at that point.
Diane Labelle, General Counsel, Health Canada Legal Services, Department of Justice Canada: Thank you for inviting us to appear before you.
With respect to the first recommendation that speaks to the provincial and territorial legislative authority over possession, cultivation, propagation and harvesting of cannabis plants in designated areas, including the power to prohibit it, I would like to provide by way of explanation what Minister of Justice Jody Wilson-Raybould stated before the Standing Senate Committee on Legal and Constitutional Affairs when she said that the purpose of the cannabis act was to put in place the national regime for the legalization of cannabis. The purposes were articulated in clause 7 of the legislation and were to be considered in terms of providing a legalized regime that was strictly regulated and provided access to individuals right across the country.
She also indicated that the provinces and territories have the latitude or ability to modify the number of plants by going from four to two plants to add cultivation restrictions.
However, it is a plan intended to apply nationally and to provide legal access to everyone of an adult age in the country. If an individual were to challenge a provincial or municipal law that prohibits the cultivation altogether, it is possible a court would then be faced with examining the municipal, provincial or territorial law against the federal legislation to examine if there is a conflict or not.
The federal purposes would be examined. If there is a conflict with the federal purposes, it is possible a court would find that the federal law prevails.
I would close by saying that the Minister of Justice explained to the LCJC that this is about establishing access nationally for adult consumers.
The Chair: Members of the committee, we could either do these one at a time or go through all eight of them and then ask questions. That might be the better way.
The second one is to amend the bill to increase the allowable period to pay a ticket following conviction.
By the way, your answer was just the kind of thing I was looking for. Thank you.
Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: That provision came as a result of testimony suggesting that individuals in rural or isolated areas would require more time to pay a ticket.
Presently, the ticketing regime allows for a period of time during which an individual can pay the ticket voluntarily. That period of time is not stated in the provision of the act. It is a provision that allows the provinces to select that period of time.
Typically, under provincial schemes right now, that period of time ranges anywhere from 15 to 30 to sometimes 60 days, depending on the type of offences that are at play.
Once the period of time for the voluntary payment of the ticket has elapsed and nothing has been done, the person who has received the ticket, or the accused, is considered to have been found guilty. After that moment, from the time that the accused is considered to be guilty, the act provides for a period of 30 days for the individual to pay the amount identified in the ticket.
In total, the amount of time an individual would have, depending on the province, could range anywhere from 45 to almost 90 days. That is one issue.
The other issue is that even in the case of individuals who live in isolated or rural areas, payment is likely to be available either by mail, by telephone or by Internet. It seems to us that the provision may not be necessary.
The Chair: The third item to amend the bill in order to relieve law enforcement agencies of all responsibility regarding the conservation, return or compensation of seized cannabis plants.
Mr. Costen: I will turn to my colleague at the second table.
Trevor Bhupsingh, Director General, Law Enforcement and Border Strategies, Public Safety Canada: The purpose of this is really about the issue of storage for law enforcement. Seized property is something of a responsibility that is important until court cases are proceeding. The issue here is for law enforcement.
There are already provisions in the CDSA that allow for early destruction. We’re talking about property that doesn’t present a threat. We’re not talking about things that are national security threats or health threats. Those would be normally disposed of in the immediate circumstances, but for those things that aren’t, there are already provisions in the CDSA that allow for early destruction. The preference for law enforcement would be for those provisions to be in Bill C-45.
Maybe I could leave it there or perhaps turn to my colleague from the RCMP.
The Chair: Is there any comment from the RCMP?
Chief Superintendent Dennis Daley, Director General, National Criminal Operations, Contract and Aboriginal Policing, Royal Canadian Mounted Police: I can simply add that neither the RCMP, nor any other policing agency within Canada that I am aware of, is set up with either facilities or resources to be able to tend to live plants. That would be the only point I would add.
The Chair: The fourth item us to ensure that the THC levels be clearly indicated on labels affixed on cannabis products and its derivatives, as recommended by the Quebec Association of Psychiatrists, and to provide for the proposed approach to the regulation of cannabis in order to protect the most vulnerable, including young persons and people with mental illness.
Mr. Costen: On this one, the spirit behind what we understand to be the recommendation is something that the government wholeheartedly takes on board.
In fact, the need for clear and precise labelling is something the task force spent quite a bit of time looking at as part of its recommendations. It is something that we learned from the U.S. states, quite specifically. Frankly, it is a practice that exists today under the federally regulated system.
THC and CBD levels are all mandatory information that is required to be on labels today. I would suggest that in paragraph 139(1)(k) of Bill C-45 you will see reg-making authority that is specific to the question of potency, which is an expression of THC and CBD.
Further, a number of months ago the department published a paper setting out intentions to regulate. Included in that were mandatory requirements that would effectively fulfil this.
The last thing I will say is that the reason for putting these THC and CBD levels in regulations is the reality that we’re talking about a novel and innovative industry space. As the regulator, we need an instrument that allows us to respond with a certain amount of agility and dexterity, should we see any practices in the industry that give us cause for concern and would allow us to make quick adjustments. Thus the requirement being proposed as a regulatory authority.
The Chair: The fifth item is to amend the bill to impose a limit on the quantity of dried cannabis or its equivalent that an individual is allowed to possess for personal use in a dwelling house.
Mr. Costen: I will take that one again and then maybe turn to colleagues for additional comments if needed. Again, as with a lot of these issues, they were first identified as something that the government asked the task force to look at. In this case, it is a question of limits.
In the task force report, in subsequent conversations with U.S. state jurisdictions and in part of the government analysis of the issues, it is clear that a possession limit in public is not only a prudent and necessary measure. It is an enforceable one.
The question of extending a limit into the home, and again this goes back to the task force report, is something that really challenges the questions of enforceability.
With respect to concerns that large quantities of cannabis held in the home would be in and of themselves indicia of trafficking, I would note the bill makes very clear that the possession of cannabis for any amount for the purposes of trafficking would remain a criminal offence.
Furthermore, a certain practicality exists when we contemplate allowing home cultivation. Recognizing that there’s a considerable amount of variability with respect to how much cannabis four plants can yield, it goes to everything from whether you are growing it indoors or outdoors, whether you are a proficient gardener or not a proficient gardener, and the type of plant you are harvesting.
It makes identifying a possession limit in the home that is rational and that a person could reasonably be thought to comply with very challenging.
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: I would only add that once the height restriction on the plants was removed in the other place that compounded the point my colleagues have made about trying to assess the yield from a plant.
The Chair: The sixth item is that the committee endorse the recommendation of the Quebec Bar which proposes to add to the cannabis act subclause 5.1 that nothing in this act shall be interpreted in such a way as to limit the provisions of the Youth Criminal Justice Act, including the use of warning, caution, referral or extrajudicial sanction.
Ms. Morency: Section 5 of the act already clearly provides that the Youth Criminal Justice Act fully applies to any provisions governing young persons. There’s no uncertainty about that at all. We have been very clear in answering questions on the Youth Criminal Justice Act, and the government as well.
The YCJA is very much designed to address rehabilitation for young persons. It is integral to how young persons committing offences under Bill C-45 would be addressed. All of the provisions of the act, including the requirement to consider alternatives to charging, warning, cautions and directing a young person to community resources, would continue to apply.
The Chair: The seventh item is to amend the bill to increase the maximum fine for an organization found guilty of illegally exporting cannabis to $300,000, the amount which is provided for in the Tobacco Act.
Mr. Saint-Denis: Subclause 11(3) provides for a fine of $100,000 if prosecuted by way of summary conviction. However, if the offence is considered serious enough, prosecution can proceed by way of indictment, in which case there’s no limit to the amount of a fine that can be imposed on an organization. We do not think that amendment is necessarily called for.
Additionally, we would like to point out that in the case of this offence it is a criminal law offence. The maximum fine of $100,000 for a summary conviction offence is identical to what the Criminal Code now provides for criminal offences generally. We think that consistency should be maintained.
The Chair: The eighth item: considering that the provinces have all announced their intention to prohibit the possession of cannabis for young people under the age of 18, the committee recommends that the bill provide that no hardship sanctions be applied to youth than are applied to adults.
We have heard that particularly in regard to the 30 grams versus the 5 grams, for example. What is your response to that?
Ms. Morency: Core to Bill C-45 is to ensure that youth do not have easy access to cannabis. The bill proposes to strictly prohibit selling, giving, distributing and sharing of cannabis from an adult to a young person, including a new offence of using a young person to commit a cannabis-related offence.
If a young person does have access to a small amount of cannabis, Bill C-45 reflects that there are two ways to deal with it. If they access and possess over 5 grams of cannabis, then that is an offence under the act. However, if the young person has in possession 5 grams or less, Bill C-45 does not propose to criminalize that.
This is a recognition that bringing the full weight of the criminal justice system to bear on a young person for the possession of a small amount of cannabis may bring greater harms than the idea of trying to prevent access entirely to the cannabis.
Bill C-45 does draw a distinction between young persons and adults in terms of possession. Adults will be able to possess up to 30 grams in public. Youth will not be entitled to possess over 5 grams. If they do possess under 5 grams, they will be dealt with under provincial laws, under their rights, for example, over property or their civil rights. They will be able to deal with young persons. They have all either announced the intention not to allow young persons to possess any amount or have actually adopted legislation to that effect.
Some have questioned why there is a different treatment for adults to be able to possess 30 grams and youth not at all. The Minister of Justice has tabled a Charter statement that speaks to this issue as well. The evidence is there to indicate that the risk of harm to young persons, including to their health, is greater through the use of cannabis.
There is evidence to support a differential treatment, and the Charter statement does speak to the minister’s view that this is consistent with the Charter.
There are other provisions generally. As I mentioned in my previous answer, the Youth Criminal Justice Act also brings another light to bear on this. A young person who is committing an offence under Bill C-45 by possessing six grams, for example, will be treated differently from an adult because they will be processed under the Youth Criminal Justice Act.
As I mentioned before, that act seeks to achieve a different objective and provide different levers to police to address the issue upfront. As mentioned, there is a requirement to consider alternatives to charging for minor offences, warning charges and diversions. It is a treatment that is different from that of the adult for a small amount as well, but it is to the advantage of the young person.
The Chair: That deals with the eight recommendations that the committee adopted unanimously. One was accepted on majority and another was rejected on majority. On the next two pages you can see other motions that were either rejected or observations that were adopted by the committee. I will not ask you to go through those.
Colleagues, if you want to question on any one of those or any other aspect of this report, please go ahead and do that. We have your comments with respect to the eight that did pass unanimously through the committee.
Let me now go to my colleagues. We will try for the usual five minutes, which includes questions and answers. The more succinct the question and the answer, the more you will get in.
Senator Petitclerc: I thank all of you for being here, and especially for your answers. They were very clear and they are very helpful to us.
I’d like to hear your opinion about the constitutional issues with regard to home growth. This was discussed at length at the Standing Committee on Legal and Constitutional Affairs, and at our committee as well. This brings us back to recommendation No. 1. My question is very simple. Would it not be preferable, and in everyone’s interest, that of the provinces and of the federal government, to clarify this issue before the bill comes into effect?
Ms. Labelle: Thank you for the question. The government policy, as expressed by the Minister of Justice, is clear. This is a national issue. We want to give adult consumers access to a legal source of cannabis. For some of them, that source will be their own home grown plants. In the interest of the national regime, the minister stated that the federal law, if ever it were to be challenged, would be the applicable rule.
Senator Petitclerc: Thank you. In the course of committee meetings, we have heard a great deal — and the report also discusses this — about the impact of the 14-year prison sentence imposed on an adult person who would provide cannabis to a young person of less than 18. In that context, some people gave the example of a big brother who would obtain cannabis that he would then pass on to his young brother. Some feel that the 14-year sentence may be a bit too harsh. What do you think?
Mr. Saint-Denis: Thank you very much, Madam Senator. Your question is interesting. A young adult of 18 or 19 who distributes cannabis to a youngster of 16 or 17 is usually considered to have committed a minor offence.
You are correct: in the worst case, the penalty could be a 14-year prison term. However, in your example, this would be a minor offence. There is a good chance that it would be processed as a summary offence and that a relatively lenient fine or prison term would be imposed.
The provision gives the prosecutor and police the opportunity to differentiate between a minor offence and a more serious one and of imposing an appropriate sentence.
The Chair: Let me just add a little follow-up. The question of discretion by the police has also been discussed a lot. There is concern that some minority groups, Indigenous people, racialized minors and people who are poor are more likely to get the harsher treatment, more likely to be brought into the criminal justice system than those from middle class or upper income families who might more readily, according to the statistics, not get that kind of a criminal charge.
What would you say to that?
Mr. Saint-Denis: I would actually say two things. The first is that discretion already exists now with respect to cannabis and any other drugs. Police discretion is part and parcel of police responsibility. They are expected to act reasonably, in accordance with the law and in accordance with all of the guidelines imposed upon them by their own levels of agencies and so on and so forth.
More important, with the cannabis act we will be legalizing the possession of cannabis for up to 30 grams. That will benefit everyone, whether or not they’re part of a minority group. That will take away a large segment of what is now a fairly large population group subjected to criminal charges. More than 20,000 individuals a year, many of whom may be from minority groups, will no longer likely be subject to any police action because they will be entitled to possess up to 30 grams.
Senator Seidman: Witnesses told our committee that in jurisdictions where cannabis is legal, the potency of available dried cannabis products is steadily increasing.
Can you confirm that Health Canada is not contemplating any limit on THC potency for dried cannabis products intended for inhalation?
I suppose, Mr. Costen, you might respond.
Mr. Costen: Obviously the question of THC potency is of great importance to everyone engaged in this conversation.
I am not a plant expert, and I am actually not sure how many plant experts appeared before you. There’s a kind of natural limit to how much of a plant can physically be THC. That natural limit is somewhere around 30 per cent.
The point I think you’re making, and certainly the point you heard from witnesses in the U.S. jurisdictions, is that when you consider extracted products, the products mated with THC that has been extracted from the natural plant, it exists in a concentrated form. It can then be used to create products that have THC levels far in excess of 30 per cent. You’ve likely heard stories of 80, 90 or near 100 per cent THC-concentrated products.
In the U.S. jurisdiction, and frankly even in our proposals and in our thinking, the conversation has been about total limits and thresholds and the total quantity of THC that can be in a package, for instance. I think the more important part is how much THC in its concentrated form could exist in a portion size. I have no doubt you heard witnesses who told stories in the early days in the U.S. regimes that hadn’t thought through some of these regulatory questions.
For instance, with a chocolate bar that had no limits vis-à-vis portion sizes, you actually had vast amounts of THC in a chocolate bar. You might have eight or ten portion sizes.
Senator Seidman: Excuse me, I don’t want to interrupt you but I only have five minutes. I don’t mean to be rude, but I’d like to know if you could confirm that Health Canada is or is not contemplating any limit on THC potency for dried cannabis products intended for inhalation.
Mr. Costen: The only limit for dried cannabis being contemplated right now is with respect to any dried product in a pre-rolled form. It would have a limit of 0.5 grams per pre-rolled form.
Senator Seidman: Let’s move on. Professor David Hammond, from the University of Waterloo told our committee earlier this week that packaging for cannabis was not plain packaging but better described as plain packaging-ish.
Why is the Minister of Health and her department continuing to refer to the proposal publicly as plain packaging? Shouldn’t we take the lessons learned from tobacco and apply them to cannabis if we are to be successful in the so-called strategy of public health objectives to protect youth, that is, keeping marijuana out of the hands of kids?
Mr. Costen: I am very familiar with Dr. Hammond’s work. We have in our proposal for packaging and labelling taken many of the best practices out of the tobacco world and the program they have in place for their packaging rules.
I think there’s a competing interest here, which is to create a viable industry where consumers have both brand information and product information that will effectively encourage them to participate in the legal marketplace.
As you likely know, in the illegal marketplace right now, branding, advertising, colourful packaging and copycat products are rampant. What we’ve done is tried to apply the best public health lessons to what we believe is plain packaging, Dr. Hammond’s “ish” comment is an interesting one.
At the same time we recognize that certainly in the early years it will be very important to provide at least some additional information to consumers as they migrate into the new legal marketplace.
The context of the public health approach at the same time as establishing a viable, competitive, regulated marketplace requires a certain balancing of some of these issues.
The Chair: I might add the officials from public health will be here all morning and they’re here again on Monday. As much as we can zero in on the questions relevant to this committee report from Legal and Constitutional Affairs the better, because we’re actually very tight on time for this panel.
Senator Gold: A minority of the Legal Affairs Committee recommended that the government limit THC potency to 16 per cent for adults over the age of 21 and to 8 per cent for those aged 18 to 21.
This committee has heard from Hilary Black, the founder of the BC Compassion Club Society, who said on this subject it would likely be that users would simply consume more cannabis if there were potency limits to get their desired effects and a risk of users diverting to the illicit market to obtain higher potency products.
I would be interested in your comments. Since this legislation aims to diminish the illicit market, protect public health by deterring use and irresponsible and excessive use, would you agree that this amendment would completely defeat the purpose of Bill C-45 quite apart from it being somewhat unenforceable?
Mr. Costen: Yes. On the question of THC potency and limits, yes. Ms. Black knows this very well. The reality is that the marketplace today offers a wide variety of products. Consumers are increasingly interested in products with high levels of THC. Those products are currently entirely unregulated. There’s very little information provided to the consumer, whether it’s about the health risks of consuming those products or frankly what’s in the products themselves.
The policy calculus behind the government’s proposal is: in order for this initiative to be successful, you need to create a regulated industry, or a regulated space that minimizes the harms I’ve just described exist today, and yet provide consumers with a legal alternative to the choices they have today.
By curtailing or by limiting the product range, whether it’s by the potency or via any other measure, you would likely simply retain a marketplace so consumers could access the product. They would continue to do so and experience the harms that they experience today.
Senator Gold: Again, from the Legal Affairs Committee upon which I sit, as you know, a minority of the committee expressed a concern about the time frame proposed for the regulation and legalization of cannabis. However, this committee has heard from a number of public health experts to the effect that every day there’s another day of harm to those who are using unregulated cannabis.
Indeed, the Social Affairs Committee a few weeks ago heard from a representative of the Canadian Public Health Association who said that we didn’t have the luxury of time and that we needed this legislation now to help minimize the harms and protect the well-being of Canadians.
What are your thoughts on the recommendation to delay the implementation of this bill? Would a delay have potential social and public health consequences, in your opinion?
Mr. Costen: I think in many ways some of the comments I expressed in my earlier response stand for this question as well.
The reality is that cannabis use is ubiquitous in this country. Arguably, if you want to use cannabis today, you are using it. You can buy it practically in any big city on any store street. The reality is that the product you’re buying in those stores is derived from sources that are frankly unknown to us.
I mentioned and I won’t repeat the harms associated with that. I am just talking about the health harms. There is a whole series of social and other harms that are important to acknowledge as well.
Again, the driving interest here is to displace that current arrangement with a regulated arrangement and to decrease those harms.
I am aware that you certainly did hear from a lot of witnesses who indicated that the sooner the process of displacement can begin, the sooner the harms felt by the current arrangement start to decrease.
Senator Manning: At the Legal Committee on March 22, Senator Batters asked a question that I would like to ask again because the answer was not that clear.
Under Part 1 of the bill, subclause 8(1)(e) says that unless authorized under the act it is prohibited for an individual to possess more than four cannabis plants that are not budding or flowering.
Could someone explain whether that means one could possess more than four plants if they are budding or flowering?
Mr. Saint-Denis: The possession of plants can be summarized in a couple of statements. No one will be permitted to possess a flowering or budding plant in public, period. I think that that’s relatively clear.
It will be possible for individuals to possess non-budding plants, up to four non-budding plants, period. Individuals will be able to possess four non-budding plants either in public or in private.
Senator Manning: What if they’re budding or flowering and the four plants are homegrown?
Mr. Saint-Denis: Then they cannot possess any budding plants or flowering plants in public at all, but they will be able to possess up to four plants that are budding in private.
That meshes well with the provision dealing with cultivation, which allows for the cultivation of four plants in a dwelling house which is a private area. In public, no one can possess a budding plant.
Senator Manning: We’re talking about homegrown here.
Mr. Saint-Denis: It doesn’t matter whether or not it’s homegrown. If you’re buying your plant from a retail store, it will not be a budding plant because you will have to take that plant from the store to your home and at one point it will be in public.
We expect that the stores will be selling non-budding plants, non-flowering plants, so that people can take those plants and bring them home and then begin to cultivate them.
In the dwelling house, at home in the private space, those plants will eventually flower and bud, and they will not be breaching the law. They just will not be able to possess the plant while it’s budding in public.
Senator Manning: In regard to policing the homegrown effort, I am just wondering about practices. How do you control or police homegrown activity if somebody is growing more than what they’re permitted to grow?
Does a report have to be filed, or how do you plan on policing the homegrown activity?
Mr. Saint-Denis: That question may best be posed to our colleagues from the RCMP when they’ll be before you.
I have my own views, but I will defer to them for that.
The Chair: We can hear from them now if they wish to respond briefly.
Mr. Daley: The RCMP will be prepared to enforce the legal cannabis regime when it comes into force.
Having said that, when I approach an investigation or anything in my law enforcement career, I look at the impact in totality on public safety.
Some of the things I think about when I look at home cultivation, for instance, is whether law enforcement will be able to quickly and easily identify licit cannabis versus illicit cannabis.
I consider peripheral things such as: Will the ability to have home cultivation? Will it increase the potential for violence in home invasions, for instance?
I also consider whether fire safety is an issue. I look at things in totality. How will I enforce?
Speaking in general, when we get either a complaint from the public or whether somebody comes to tell us that they suspect there are more plants than are allowed under the legal cannabis regime, then we would look at different techniques.
It could be as easy as surveillance of the house to determine foot traffic. We could launch a total investigation, which may then allow us to seek judicial authorization to go into that house to see what is taking place.
Again, I look at things in a whole public safety realm versus one aspect in the law enforcement side.
Senator Poirier: I have a couple of questions for Justice.
First, legal experts such as the Barreau du Québec testified that the government was at risk of class action lawsuits if labelling and promotion provisions were not improved.
Did you anticipate a scenario of class action lawsuits against the government?
Ms. Labelle: This question was also asked of us when we appeared before the Legal and Constitutional Affairs Committee. Also a government response was provided in writing to one of the senator’s written questions.
Justice examines every piece of legislation for consistency with the Charter and with the Bill of Rights. It also examines legislation for it to be consistent with any other legal rule or issue. The legislation will be applied when it comes into force, if passed by Parliament, consistent with the authorities set out in the legislation and in the regulations.
More than that involves solicitor/client privileged advice, which I cannot share with the committee because this advice belongs to the government.
Senator Poirier: Basically is it a yes or no if you anticipate a class action lawsuit against government? Is that possible?
Ms. Labelle: That is part of the legal advice that belongs to the government, so I am not at liberty to express anything more.
Senator Poirier: It probably would have been simpler to modify Bill C-45 accordingly. Anyway, I have a second question.
In its report the Standing Senate Committee on Legal and Constitutional Affairs observed unanimously that the Government of Canada explore and adopt other measures to limit the intrusion of organized crime in the cannabis industry.
Can you share with us if the government has made progress on this issue? If yes, what have they done so far? If no, why haven’t they done more?
Mr. Costen: That’s a really important question.
Important new authorities are proposed through Bill C-45 that would allow a regulator before and during the process of vetting applicants to look carefully into and compel financial information.
To the extent I understand the nature behind the recommendation and the advice, it was really around financial interests and the role that criminal organizations may play behind the scenes and have an influential role in the operations of the cannabis company.
The bill proposes important new measures that would exist over and above those that exist today.
You’re likely aware that we do a careful vetting with the RCMP of all of the key personnel. We have proposed, through our regulatory proposals, a number of new measures that would further increase the scrutiny of individuals looking to enter the industry, specifically with a view to meeting the recommendation that the committee has identified.
Senator Poirier: My last question is a follow-up from Senator Petitclerc’s question on the 14 years.
In the same scenario of a youth giving something to another youth having the possibility of getting a penalty of 14 years, if that were not cannabis but alcohol, could you please tell me whether that would be the same penalty? Would it be as severe?
Ms. Morency: I would say first that under Bill C-45 a youth sharing with another youth would not be captured as an offence and with alcohol it is not a criminal offence. The treatment of it is dealt with through provincial regulation, so I couldn’t comment precisely on how that is addressed.
I am aware that the provinces address youth under 18 or 19, whatever the age of majority if the province, who access alcohol. There are offences in place for that and for persons who provide it to them or sell it to them when it’s prohibited.
Senator Poirier: In my understanding it’s a fine and it’s nothing compared to 14 years for an adult giving something to a youth. Giving cannabis is different from an adult giving alcohol to a youth, which is also illegal.
There’s quite a bit of difference from what we heard from witnesses.
The Chair: Could you comment on that? That’s a significant issue.
Mr. Saint-Denis: Again, many experts and witnesses point to the 14 years, and in their statements there’s automatically an innuendo that penalty will be imposed. In fact, it’s never imposed, except in the worst of the worst possible cases.
An adult, someone who’s close in age at either 18 or 19, who gives cannabis to a young person, someone below the age of 18, will likely never be penalized anywhere near 14 years.
Senator Poirier: If it’s never, why even put it there?
Mr. Saint-Denis: Well, because the cases you picked are the most innocuous ones. There are possibilities for much more serious cases of perhaps organized crime individuals distributing to youth for the purposes of the youth either selling or distributing to other youth, in which case then you might want to consider imposing a much more serious penalty on someone who’s working for organized crime.
Senator Poirier: That could happen with alcohol too.
Mr. Saint-Denis: It’s very fact specific.
Senator Dean: I want to go back to help out my friend Senator Seidman on the question on THC limits. The most efficient way to do this is to read what I think is my understanding.
I believe in the draft regulations developed by Health Canada that THC limits are in fact dealt with. My understanding of my read of those regulations is that for dried cannabis intended to be smoked or vapourized, the natural limit of no more than 30 per cent THC would apply.
In addition, and I think Mr. Costen caught this, dried cannabis products intended to be smoked or vapourized and sold in pre-rolled single-use forms couldn’t contain more than one gram of dried cannabis to assist consumers in managing consumption. We are talking about dose.
For cannabis oil, the only other product that would be authorized in this first phase of legalization, there would be a proposed regulatory limit of 30 milligrams of THC per millilitre of oil or 3 per cent THC. Further, for purposes of safe dosing, cannabis oil sold in single units such as capsules could not contain more than 10 milligrams of THC per unit, a standardized amount consistent with limits established in most U.S. states for products meant for ingestion.
Could confirm my understanding? I think this is the precise question that Senator Seidman was seeking an answer for. Do I have this right in terms of the proposed regulations?
John Clare, Director, Policy, Legislative and Regulatory Affairs, Health Canada: That is correct. Those are the proposals that were set out in the regulatory consultation paper the government published in November in advance of drafting and finalizing those regulations.
Senator Dean: For further practical purposes, to test my own understanding of this, I understand from talking to many producers that achieving 30 per cent THC potency in scale sufficient for production and distribution is very difficult.
In practice, probably 26 or 27 per cent is the highest potency that can be produced predictably in scale for sale. Indeed, that product is offered for sale in the medical system. In fact, a range of products from zero THC or 100 per cent CBD, all the way to 25 or 26 per cent THC is the range of products in the market that we might expect to find in a legal and regulated market, and everything in between.
My last point, and this is just my point, is that we would see two products, obviously, in different forms made available in the legal market initially in contrast to what I might call a potpourri of products we might find if we walked to the Byward Market to a store I happened to pass the other night.
Those are both at the low end of the potency scale. For that reason, to start to tinker with those and think about imposing potency limits is the thing that will indeed cause, in psychology, a reaction effect. If I am told I can only have 8 per cent THC, I am going to find 16 or 26 per cent THC.
I am trying to contextualize the whole issue of THC potency. There are indeed proposed limits, and there is a very clear answer to that. They’re in the proposed regulations. There are explanatory notes associated with that.
For that reason I support the testimony we have heard. The notion of starting to cap in some way, especially related to age at lower levels, will indeed have two effects. First, it will increase consumption to achieve the desired effects that user consumers will achieve regardless of how we try to limit it. Second, it will run contrary to the purposes of the legislation and drive in particular young consumers to an illegal market that we know is not tested for potency or contaminants. By the way, neither is age tested on the way in the door to buy those products.
Senator Omidvar: I want to stick with home cultivation, if I may. A majority of the senators on the Legal Committee have voted to prohibit home cultivation. I say not unanimously, but a majority.
Can you comment on the impact of prohibiting home cultivation on Canadians who live in rural and remote communities and what that would do to their access?
Mr. Costen: Your question relates to comments made earlier around the impact on minority or racialized communities, not only to rural or remote communities.
Certainly that has come up in the course of my work and in my conversations with individuals, organizations and governments in, for instance, northern Ontario, Labrador and throughout Iqaluit. Not only is it perhaps unlikely that there will be a legal bricks and mortar retail store within reasonable distance, frankly, access to the Internet and access to credit cards are also limited.
In those instances, the conversation about limited production for personal use really appears to be the only kind of alternative, the only option for legal access. It is worth considering that when looking at the recommendation that has been made by the committee.
If it were to be prohibited outright in instances where individuals in communities have neither access to a retail outlet nor easy access to Internet or even, as we’ve heard, nor are likely to have credit cards, it would be very difficult, if not impossible, for them to have legal access. There is concern you would see kind of illegal entities move in to take advantage of those types of situations.
Senator Omidvar: Further, we heard in testimony the fear of the Canadian Federation of Apartment Associations that homegrown would do damage to the properties, including mould damage, for instance.
Could you comment on that?
Mr. Costen: I’ll say two things and maybe ask for some help if I get it wrong.
The first part of the answer is just to reflect on the fact that this is really a cooperative proposal, wherein other levels of government, pursuant to the powers and authorities they have, can impose additional rules.
For instance, landlord and tenancy rules could be made and tailored to mitigate some of the problems that you’ve heard described.
Another bit of context I may offer as a second part of my response is that the committee may recall we’ve mentioned something called the National Cannabis Survey a few times.
One of the questions we ask in that survey is where people either currently access their cannabis from or where they’re likely to access it in the future. Of all persons who use cannabis, only about 2 per cent really think about growing it for themselves.
Imagine a scenario where you have an apartment building and the concern is expressed that perhaps every person in that apartment building will grow to the maximum amount. The data we’re seeing around the likelihood of that scenario playing out would reveal it’s a very unlikely scenario. Consumers are telling us that if given the choice, they will go to the store.
Senator Tannas: I want to go back to your responses with respect to the recommendations from the Legal and Constitutional Committee. I’ll start with the chief, who responded on the third item.
You response indicated that you do not have the capability to protect, seize plants, nurture them, look after them and return them to whom they need to be returned to. You just don’t have that capability.
This amendment is specifically there to relieve you of that obligation or to explicitly state that you do not have that obligation.
Would you appreciate that particular amendment being included?
Mr. Daley: As I’ve said my job law enforcement is not to make a comment on a policy decision or something. It is to enforce the law and simply advise, as you first stated, that we do not have the facilities or the resources to tend to live plants.
Part of my role is to provide that sort of feedback. If it’s decided that the law will be the law, then we will have to make the necessary improvements to fall within the law.
Senator Tannas: So there will be a gardening division within the RCMP.
Mr. Daley: We will have to make the necessary changes to fall within the law.
Senator Tannas: I think Ms. Labelle replied, with respect to sixth item, that the concern was already looked after, that it goes without saying that the youth are looked after. Maybe it wasn’t you.
Whoever it was, if this is the intention what would be the harm? Somebody said the government wholeheartedly agreed, so what would be the harm, then, with explicitly saying what we all feel, what goes without saying and so on? What would be wrong?
The Barreau du Québec, not a bunch of slouches, suggested that this amendment be put in. What’s your answer for not being explicit?
Ms. Morency: First, my response would be that the bill is already explicit to that effect in clause 5.
Second, if this committee were to adopt this suggestion, it would be followed by a second section speaking to almost the same thing. Harm could be caused unintentionally, no doubt.
What does the first one mean that you have to put in the second one? If you don’t put this in now and in every other federal criminal law act coming forward, does that mean it doesn’t apply? Does it mean the elements of the Youth Criminal Justice Act don’t apply?
I guess the response has two points. First, Bill C-45 before the committee now specifically addresses the concern, I respectfully submit. Second, adding this additional clause right after that already clear provision would likely cause some confusion about what the existing one means.
Senator Tannas: The Barreau du Québec and the Legal and Constitutional Affairs Committee got it wrong. They just didn’t read the bill properly. You’re saying it is already there.
Ms. Morency: We appreciate what motivated the recommendation to be as clear as possible. Our view would be that the bill is very clear and that despite the best intention of that recommendation, it could have an unintended negative consequence of causing further confusion, whether in Bill C-45 now or in another federal criminal law reform wherein two specific references aren’t made again going forward.
The Chair: We are running over time, but I think this is quite a detailed report that requires the kind of questioning it has been getting. I hope we can make up for it on some of the later reports.
I have one question, and then I will ask if anyone has any burning question.
You commented on recommendation No. 8 from the committee where they’re saying that no harsher sanctions be applied to youth than those applied to adults. You said that it won’t work that way and that it will bear all of that in mind.
It will also be dealt with under the youth criminal justice system. I realize it is a different system from the general system, but it still has the word “criminal” in it. Does this mean that if it proceeds under that system, the person would in effect have a criminal record?
Ms. Morency: Under the Youth Criminal Justice Act a record would ensue if the young person was convicted. There are rules in the Youth Criminal Justice Act that address how that record survives. It depends on the nature of the offence for a period of time, and then it ceases to survive.
Rather than charge, for example, which would lead to a conviction, the Youth Criminal Justice Act provided flexibility to law enforcement to give the youth a warning or a caution since 2012. That warning or caution will be documented but there will not be a criminal conviction record that flows from it.
Bill C-45 seeks to protect youth against having access to cannabis. It fully relies on the Youth Criminal Justice Act to address any offences involving young persons. It draws that distinction on 5 grams for a young person. They would not be criminalized four possessing under 5 grams, whereas the threshold is different for adults.
The Chair: The statistical information we get about charges is that substantial charges are still being laid now, even in this interim period while we’re waiting for a new law, that involve simple possession. The biggest category of users are young people.
What kind of comfort can we get from that when we see that there are still a lot of charges and a lot of criminalization that is potentially going on which has a ruining effect on so many people’s lives?
Ms. Morency: It is a balancing of objectives. The task force recommended that youth be allowed to possess the same amount as adults. The government, in bringing forward Bill C-45, believes that the threshold is too high and there’s too much harm to the young person’s health and well-being from the use of cannabis.
However, the government also recognizes that bringing the full weight of the criminal justice system to bear on a young person who possesses a very small amount of 5 grams or less is a greater harm.
For that reason, it is only proposing to criminalize possession by a young person of over 5 grams. Below 5 grams, the criminal justice system is not engaged but provincial responses would be engaged. The police under provincial responses would be authorized to seize the product and would be authorized to deal with them under their provincial offence regime.
The Chair: That raises the question which is worse, the use of marijuana or the criminalization of marijuana. Anyway, are there any other burning questions?
Senator Oh: Minors under the age of 18 are currently unable to apply for citizenship while they are being charged under the Youth Criminal Justice Act. However, they can apply after they have received a conviction.
Is that correct?
Ms. Morency: I am afraid I am not in a position to comment on whether the Immigration Refugee Protection Act includes that provision.
To the extent that I am aware of the concern about the Immigration Refugee Protection Act and Bill C-45, it has been more with respect to what would happen if there was a conviction.
Would it have a negative impact on the ability of a permanent resident under IRPA, if it constitutes criminality for the IRPA effecI don’t think that’s what you’re asking?
I would be happy to see if we can get a response from our colleagues at Citizenship and Immigration, but I am not in a position to answer.
Senator Oh: That would be appreciated.
Senator Seidman: I want to go back to recommendation No. 1. I know Senator Petitclerc asked a question and we had some discussion about it, but I would like to be really clear about what I heard.
The provinces have been given jurisdictional rights over certain aspects of this legislation such as age and retailing of the product. Why shouldn’t the provinces and territories have the right to decide what is best for their communities as far as growing plants at home is concerned?
Quebec and Manitoba have already decided they want to prohibit it. Why shouldn’t they also have that jurisdictional right?
Ms. Labelle: This question has both a policy and a legal dimension to it. From a policy perspective, we can go back to the report of the task force where it examined the issue of home cultivation. It also studied what had gone on in those states that have legalized cannabis and have authorized cultivation at home.
My understanding is that most states which have legalized adult consumption of cannabis has also allowed for home cultivation. The task force examined this. We visited some of these states. From a policy perspective, they recommended to the government that home cultivation be allowed. They set it at four as opposed to the six or eight or 12 plants which exist in some of the U.S. jurisdictions.
The thought was that this would help reduce illicit activity. It would give adults access to a source of lawful cannabis. The government, in considering the task force report, took this into account. This is the reasoning behind the allowance for the cultivation of up to four plants.
From a legal perspective it has been set out that the criminal law doesn’t apply to the cultivation of four or fewer plants. By not applying the criminal law to that aspect, it leaves room for the provinces to come in and set additional restrictions. However, in doing so, they have to keep in mind the purposes of the federal legislation.
Perhaps two main purposes of the federal legislation are to provide for legal access by adults to a lawful supply through the production of cannabis and to help eliminate the illicit market, not encourage home cultivation in an illegal fashion. These are the purposes that provinces and territories need to keep in mind when they develop their legislation.
In so doing, they can as Quebec and Manitoba have done prohibit home cultivation. The federal government has been clear that I will not challenge provincial laws in this regard. However, individuals may feel it is too restrictive and then may take issue with their own provincial legislation.
It is in that context that a court would look at the purposes of the federal and provincial legislation to make a determination accordingly.
Senator Seidman: Quebec Minister Jean-Marc Fournier appeared before the Legal and Constitional Affairs Committee. He recognized the complications when he said:
You could clarify it in order to prevent legal challenges and show that you prefer federal and provincial governments to work together rather than against each other.
The federal government has the opportunity to clarify this and ensure this in the current legislation.
Ms. Labelle: Officials at the federal level, and I believe ministers of justice and attorneys general across the country, meet to have conversations and exchanges on cannabis.
Again, I would point to the testimony of the Minister of Justice before the Standing Senate Committee on Legal and Constitutional Affairs when he said that the interest was in establishing a national program whereby the rules set out by the federal government applied across the country.
Ultimately, the federal government’s objective to allow for home cultivation of up to four plants to provide this national consistency.
The Chair: I will clarify one part of that. You said that if a province such as Quebec or Manitoba decides to go to zero, they can go four, three, two, one but they can’t go to zero under the law. You said that the federal government has made it clear that they would not oppose that.
However, if a citizen brings an action before the courts, what will the federal government do then? Will it intervene or will it stand aside?
Ms. Labelle: If a provincial statute that also involves a federal statute is challenged by an individual, for example, then the federal government would look at defending its legislation.
The Chair: We need to pack up panel because we are running over time. It was very important to get a lot of these matters on the table. Thank you very much.
The second report we will now deal with is the report of the Standing Senate Committee on Aboriginal Peoples. Again I welcome again the Health Canada and Department of Justice officials.
I also welcome you, Sheilagh Murphy, Assistant Deputy Minister, Lands and Economic Development, Department of Crown-Indigenous Relations and Northern Affairs; Valerie Gideon, Senior Assistant Deputy Minister, First Nations and Inuit Health Branch; and Stefan Matiation, Director and General Counsel, Aboriginal Law Centre, Department of Justice have joined us.
Unless any of you have any opening comments, I would draw your attention to the report at page 16 and the recommended amendments. There are also policy recommendations, however they’re dealt with by this committee, would be in regard to observations.
The recommended amendments to the bill on page 16 start with, first, the delay in the coming into force for the reasons outlined in (a) to (e). The second one is to prescribe that the Minister of Health reserve at least 20 per cent of all cannabis production licences, et cetera.
I would like your comments on page 16, the recommendations and the rationale of the government’s position vis-à-vis these recommendations.
Mr. Costen: I can start. Mr. Chair, would you like to proceed in a similar fashion as we did previously, starting with 1(a) and then through the list entirely?
The Chair: Yes.
Mr. Costen: I will say a few things with respect to recommendation No. 1, absent any of the subletters, just to begin, and then, colleagues from other departments could certainly offer some reflections on the remaining recommendations.
In the earlier session, I was asked a question about the delaying of its implementation. In wanting to be respectful of everyone’s time, I don’t know that I will want to repeat everything that I said earlier.
By way of comment here, I think I would perhaps say that APPA certainly heard and discussed at length questions of engagement and interest that exist among First Nations, Inuit and Metis communities. The interest they heard is quite varied. It was everything from questions and concerns around the health and community impacts of these decisions, to the impacts on law enforcement, community safety and economic interests.
APPA reflects that the reality in many communities today. It is not that different from what it is in the rest of the country, insofar as you have free and easy access to cannabis. You have cannabis sold openly and in some communities a proliferation of stores. Again, it is not very different from what you would see in Toronto, Vancouver, Ottawa, or most major cities these days.
The product that’s sold is, as has been discussed at length, free from any government oversight or any oversight at all, and there are a number of harms associated with that.
The reflection to questions of delay is not to set aside the concerns and very legitimate questions around how to roll out implementation in a way that will be the least disruptive and the most beneficial for communities. It is really an acknowledgment that a delay would in effect preserve the status quo. The sense of proliferation, early movement, anticipation and chaos, if I may, would likely continue.
The government’s position has been to invest a lot of time and effort in going to communities. Since we last spoke to APPA and you, we are up to 50 or 60 community visits. We do three or four every week in the communities. We are talking with chiefs and councils, in the case of First Nations communities, and with community members and organizations, with very much a view of hearing their concerns. We are working together to develop strategies that will address those concerns. We are equally looking at strategies to facilitate their interest in participating in the new regulated industry, and so on and so forth.
That’s what I would offer by way of response to simply the very first recommendation with respect to delaying. I don’t think Sheilagh Murphy or Valerie Gideon want to add anything here.
The Chair: You are not going to go through (a), (b), (c), (d) and (e).
Mr. Costen: We certainly can.
The Chair: We can leave it open until questions unless you have something to respond to in these cases.
Mr. Costen: In that case, I would actually like to point to a few of them.
On questions of tax matters, as you likely know, they’re not currently in Bill C-45. The questions of excise tax are dealt with entirely through the Budget Implementation Act.
I don’t know if we have comments to offer on (a).
Sheilagh Murphy, Assistant Deputy Minister, Lands and Economic Development, Department of Crown-Indigenous Relations and Northern Affairs Canada: Certainly the taxation issue is the purview of the Minister of Finance. Through the new fiscal relationship work we are undertaking with Finance Canada, with self-governing First Nations and with the AFN, there is a line of sight through that process to look at taxation, changing taxation for First Nations, self-governing First Nations and Indigenous people, as well as resource revenue sharing and those types of mechanisms.
The discussions in and around that will go through that venue. The government has been very clear about that. AFN released a paper in December 2017 in and around the status of new fiscal relationships. I can offer that as an addition.
The Chair: Are there any comments on (b)?
Mr. Costen: On (b), very quickly, this is something that we’re utterly seized with. In fact, the last federal budget included $62.5 million to support community-based education efforts, including in Indigenous communities.
That is a very tangible action which speaks to the need and the government’s willingness to work with communities to develop culturally specific, linguistically appropriate education materials. We are currently translating a number of documents that have already been developed into a variety of Indigenous languages.
That one is a very important and vital recommendation. It reflects a road that we’re on presently and there’s quite a bit of work under way.
Valerie Gideon, Senior Assistant Deputy Minister, First Nations and Inuit Health Branch, Department of Indigenous Services Canada: The Thunderbird Partnership Foundation is headed by Carol Hopkins. She recently received the Order of Canada and is a very well-recognized Indigenous expert in mental health and addictions. She is leading regional dialogue sessions across the country to inform on the development of specific public education tools. She has strong support from First Nations and other Indigenous leaders to undertake this work.
It will be presented to the Assembly of First Nations task force specifically on cannabis legalization that we are also supporting. They recently started meeting. They hired someone to specifically coordinate the task force. They’re planning a national summit, which will also be an opportunity to get some specific input from communities with respect to education materials.
Our Minister Philpott is also very committed to ensuring Budget 2018 resources specific to addictions treatment which I will speak to with respect to another element in your recommendations. She has been very strong in ensuring that we have a public education campaign as part of addressing the complex needs of high-risk communities with respect to addictions, which would include cannabis.
The Chair: The preamble in No. 1 says that “the Government of Canada negotiate and agree on the following deliverables.”
When you are talking about the things you are doing, are you doing it in the context of a negotiation?
Ms. Gideon: Do you mean in terms of the public education materials?
The Chair: The preamble including all (a), (b), (c), (d) and (e)he preamble. I am talking about page 16 of the committee’s report. It talks about the delay for up to one year, but it says, “The purpose of the delay is to allow time for First Nations, Inuit and Metis communities and the Government of Canada to negotiate and agree on the following deliverables.”
Is that in process?
Ms. Gideon: The work that we started with Thunderbird Partnership Foundation and the Assembly of First Nations last year was to prepare for the aspect of legalization coming into force this year.
I don’t know, Mr. Costen, if you can comment specifically on that.
The Chair: That is a form of consultation, is it, as opposed to negotiate and agree? I am trying to understand how much of this you are actually doing.
Ms. Gideon: We’re responding to what they brought forward as needs in order to support the education of their membership.
Mr. Costen: Valerie Gideon is describing the projects that I mentioned very generally and the pot of money allocated through the budget. They are really negotiations and conversations with communities in which they present their interests and we do our best to accommodate them with the monies that have been provided.
The Chair: Are there any comments on (c)?
Stefan Matiation, Director and General Counsel, Aboriginal Law Centre, Department of Justice Canada: With respect to (c), I note there is also a policy recommendation on that one. I suspect we will have more discussion there as well.
This is getting at the issue of Indigenous jurisdiction. I guess as a starting point I have a few comments on this. The cannabis act itself is a general application that would apply across Canada to all Canadians, including Indigenous peoples. The regime itself doesn’t include provisions that would recognize or empower Indigenous lawmaking in this area.
Like the Criminal Code and the Controlled Drugs and Substances Act, it is legislation that will operate in a framework of other laws and powers. Some Indigenous communities in Canada have self-government powers under their legislation. There are rules in those agreements regarding the relationship between Indigenous lawmaking and things like criminal legislation and the Criminal Code.
Under the Indian Act, there are also certain bylaw-making powers regarding intoxicants. Some First Nations use those bylaw-making powers to deal with certain issues around intoxicants and health and wellness in their communities.
The regime doesn’t address jurisdiction itself, but it will operate within an existing framework of other types of authorities that Indigenous governments have.
The Chair: Item (d) is substantial funding. That is a policy question for the government, but what is being done on the rest of this?
Ms. Gideon: When we last had an opportunity to address the committee, we spoke about significant investments that had been made by the government with Budget 2016 in the area of mental health. Mental wellness teams were established across the country, quadrupling the number of those teams.
They are all hosted by Indigenous communities and mandated by leadership. They serve from four to 10 communities each. In provinces like Ontario and Saskatchewan, for instance, all communities have mandated that they will have access to a mental wellness team. We also established a Hopeful Wellness Line which now has a chat function similar to the Kids Helpline chat function. This is all governed and managed through an Indigenous organization.
We also received funding in Budget 2017 of $204 million, specific to mental health, to continue to ramp up access to services for our communities. That also includes expanding the non-insured health benefits and mental health counselling to include access to traditional healers. We have seen over a 100 per cent increase in use of the mental health counselling benefit and non-insured over the last few years. There’s a significant improvement in access to this benefit.
We are also using funding agreements with communities to deliver that benefit instead of only on an individual or family basis, and that has expanded access.
Since we have had an opportunity to speak to this committee prior to Budget 2018, we have also been able to access $248 million in Budget 2018 for expansion of the Indian Residential Schools Resolution Health Support Program, a very successful program that supports families, individuals and communities with healing resulting from the intergenerational impacts of residential schools and other impacts related to colonization.
We have also been able to access as part of that $200 million for addictions treatment, specifically over five years, with $40 million ongoing to expand access to treatments and the capacity of on-the-land initiatives with a variety of different mechanisms to improve and modernize access to addiction treatment services for communities.
As reported at our last committee session with you, we are continuing to support the feasibility assessment for the design of a treatment centre in Nunavut which, as we have referenced, would be cost shared with the land claims organizations, the federal government, and the territorial governments that are continuing to plan for that effort.
There was an on-the-land collaborative in the Northwest Territories, as an example. There are on-the-land treatment services that are being offered also in Yukon. There are a lot of progress and ramp up in capacity and access with respect to mental health and addictions compared to where we were in 2015.
The Chair: Indeed you have come at it together. Finally, there is recommendation No. 2 which prescribes that the Minister of Health reserve at least 20 per cent of all cannabis production licences for producers on lands under the jurisdiction or ownership of Indigenous governments.
Mr. Costen: I can take that one, Mr. Chair. There’s an important detail as officials and even I personally meet in person. Perhaps I didn’t do a good enough job, when we had an opportunity to present the proposed licensing scheme at the Aboriginal Peoples Committee.
The proposal does not include any sense of a supply-managed arrangement where the government would set a quota or a maximum number of licences of any kind. It really is a program where the regulations will set out licensing criteria. Applicants will make applications for a licence and then they will receive a licence. Then the market eventually will sort out how many and what the market looks like.
It is not an arrangement where the government has said it was only going to issue 100 cences. In order to identify what 20 per cent looks like, you would need to have some type of denominator.
The way that recommendation has been crafted and worded, it suggests that there’s a denominator. The reality is there’s almost an infinite number of licences. Identifying 20 per cent of an infinite number is not possible.
Insofar as we understand the prerogative behind the recommendation, it is to ensure participation of Indigenous communities and companies in the regulated market. That is something the government has taken on board quite a bit.
I would point to two things. Recently, in the context of the program for issuing licences for medical cannabis production, we have created what we call a navigator service for Indigenous companies and Indigenous peoples specifically. Recognizing that the process of navigating regulations can be a complex and difficult one, many in the private sector rely on consultants. These types of services are quite costly, and they’re not always available in First Nations communities. They may not have the means necessarily.
What we have done as a regulator is to try to create a navigator or concierge service, if you will, that will help interested Indigenous entrepreneurs navigate the regulatory environment and successfully arrive at having a licence. That is really meant to foster a participation in the regulated market.
In the absence of having some type of hard quota that would reserve a certain portion of the market for Indigenous companies, this has been the practice we have put forward currently and what we would continue to establish.
I don’t know if Ms. Murphy wants to say something about the economic development support programs which your department provides that also support Indigenous-owned small businesses including cannabis businesses.
The Chair: What is this navigator service you referred to?
Mr. Costen: The navigator service is employees that work in the Health Canada regulatory program on the licensing program. It exists solely to work step by step with interested Indigenous companies that want to put in an application through the entire licensing process, so that they can move expeditiously through the vetting process in order to meet the requirements they need to meet without necessarily having to rely on outside consultants and these sorts of things. It is meant to create an easy pathway into the regulatory environment.
The Chair: I want to get to the committee members. Is there anything you want to add here?
Senator Seidman: Thanks for giving us an overview. It was helpful to listen to it. I would like to ask specifically about recommendations Nos. 1(d) and (e). It is also under policy recommendations Nos. 4 and 5. They all relate to health treatment and addiction.
The Aboriginal Committee heard that there are no treatment centres in the North now, and that there’s an enormous concern this legislation is being rushed through before the necessary mental health and treatment support services will be ready.
You mentioned that you have added some budget. You have had meetings. You are in the process of designing and planning an addiction centre.
However, what mental health and treatment facilities will be available and in place in the North at the time of legalization?
Ms. Gideon: We will not be there at that point.
Senator Seidman: You won’t be there at legalization.
Ms. Gideon: No. People are accessing treatment centres that are not in the territorial context.
Senator Seidman: Do you have concerns that vulnerable youth, who are more susceptible to addiction in remote and northern communities, will be disproportionately impacted by this legislation?
Ms. Gideon: I can’t comment with respect to whether or not they would be disproportionately impacted. What I can say is that youth at risk is an ongoing concern of the government, which is why they have made substantive investments over the last three federal budgets to support increases of accessibility to mental health services and treatment services.
The design, build, staffing and creation of a treatment centre in a northern context require a lot of community engagement and a lot of participation. We also have to ensure, as partners, that it will be sustainable with respect to the recruitment and retention of workers. It is a multi-year exercise.
Senator Seidman: I have to ask you, having listened to that: What analysis was done by your department on the impact of this legislation on the mental health and well-being of Indigenous youth?
Ms. Gideon: We fund on an ongoing basis health survey research by First Nations to assess trending with respect to youth in terms of their self-rated state of mental health and addiction support.
In Budget 2018, for the first time the government announced dedicated resources for a specific Inuit health survey that will also be funded on an ongoing basis. It will enable Inuit for the first time to self-direct and conduct comprehensive research with respect to their population that will be based on their needs.
Senator Seidman: Then, do you not understand why there’s a certain degree of concern that this is all too fast for First Nations in the North, with no facilities to deal with the impact that we can imagine this legislation will bring this summer? There are no services. There are no front-line services on the ground operationalized now to deal with it.
Ms. Gideon: There are front-line services. There’s no residential treatment facility. It does not mean that there are not front-line services available through the territorial governments.
We fund and have been funding for quite an extensive period of time specific top-up supplemental funding to what territorial health systems receive, specific to supporting Inuit and First Nations in relation to mental wellness. We do that through a five to 10-year funding agreements.
In Nunavut, for instance, it is a tripartite MOU that directs those investments. There is some significant Inuit engagement with respect to where that funding is allocated.
We funded in 2016 the implementation of a National Inuit Suicide Prevention Strategy, which was designed and developed by Inuit. They are driving the implementation of that strategy.
There has been quite a bit of recognition about the importance of increasing front-line support.
Senator Seidman: There are still no treatment centres on the ground to deal with that.
Ms. Gideon: There is not a residential treatment centre on the ground, but people can access treatment services.
The Chair: Thank you.
Senator Petitclerc: With regard to the consultations, I am concerned by what we are hearing today, by what the report contains, and by what we heard at the Standing Senate Committee on Aboriginal Peoples.
There seem to be inconsistencies in what we are hearing. You seem to be saying that you are satisfied with the consultations that were carried out. When we examine the report and look back on the testimony that we heard, however, it seems clear that the Standing Senate Committee on Aboriginal Peoples and the senators individually, and the organizations, told us that the consultations were inadequate. We heard that they were not adequate and not representative of the different cultures, languages and peoples.
The consultations were not linear, and by that I mean that the organizations were consulted but not in depth.
According to the President of Nunavut Tunnagavik Incorporated, or NTI, Aluki Kotierk, the consultations with the Inuit were inadequate. The Aboriginal Patient Navigator, or APN services have said from the beginning that they are not ready.
I’d like to get the real facts on this, because I think it would enlighten us a lot as to the rest of the recommendations.
Are you satisfied with the consultations that were held?
Mr. Costen: Thank you for the question. I am going to answer in English, if you don’t mind.
Senator Petitclerc: Of course.
Mr. Costen: It is a really excellent question. You will forgive me, but declaring whether the consultations are adequate is a very difficult question to answer.
Really, what I can do is describe the consultations that have occurred. The determination about whether those consultations are adequate from the perspective of a variety of people is a determination left to others to make.
I was at the AFN Special Chiefs Assembly a couple of weeks ago and heard very much of the same commentary. What I can do is simply describe what efforts we have made to have a dialogue. Again, I will try to be mercifully brief here.
It has been a process of discussion. When the task force began its work, there was participation at a variety of regional events. There was a separate Indigenous round table. That, then, has grown. There hass been ministerial engagement to the national organizations and to some regional organizations.
In my direct responsibilities over the program, we have been in, as I said, some 50, 60 or 70 communities in the North, from east to west. In those communities, to create a mental image, sometimes it is a meeting with five or six decision makers and sometimes it is the entire community.
We have 600 or 700 communities spread out across the country and a number of regional, local and national organizations. We understand the interest. We have made ourselves as available as possible. We have created lines of communication and established governance structures. These have all kind of emerged over time.
I mentioned before that we have a dedicated outreach unit with staff that do nothing other than Indigenous outreach.
Whether all of those activities at the beginning of the task force, the ministerial outreach and the officials’ outreach, are seen as adequate enough, I will leave that judgment to others.
In sharing that information it is just to acknowledge that the interest and the desire to have that conversation, to hear the concerns and to work through them, exist. We will continue to do this and to do our best to meet all of those interests and have those conversations.
Senator Gold: I want to clarify my understanding on the consultation point. Then I would like to speak a bit about the specific amendments.
Do I understand correctly that the current state of constitutional law in Canada is that there is actually no duty to consult on the legislative process?
There are consultations on all kinds of things, but there is no legal duty on the government under the current state of the law to consult on the legislative process. Am I correct in that?
Mr. Matiation: Yes, that is correct, based on the guidance we have so far from the courts. You might be aware that there is a case before the Supreme Court now that will be important to that issue.
As you mentioned, engagement and consultation in the development of legislation are certainly always viewed as useful exercises.
Senator Gold: I just wanted to clarify that, chair, to put it in the framework.
If I could continue with you, Mr. Matiation, you mentioned in your remarks earlier that the range of Indigenous communities law-making powers may differ, such as, for example, those that have self-government agreements. One might even add those whose rights have never been so-called extinguished or whose territories have never acceded, amd those under the auspices of the Indian Act who have some bylaw power over intoxicants.
I have a two-part question, and I am interested in your answers.
First, is it realistic to think, given the diversity of communities with diverse legal legislative powers, that the deliverable as called for in the amendments can actually be achieved within a one-year period? Or, might it take longer to sort out whose law-making powers might apply, to say nothing of working through whether the Criminal Code, in all of its aspects, would continue to apply as a law of general application? That’s the first part.
Second, with regard to the bylaw power under the Indian Act that gives communities the ability to legislate with regard to intoxicants, am I correct in understanding that at least to date intoxicants have been narrowly interpreted to include alcohol but not necessarily drugs like cannabis?
Could you comment on that and whether you think there’s an opening on the government’s part to treat the term intoxicants more broadly than it has hitherto been treated?
Mr. Matiation: Maybe I will start with the first question. It’s not that there’s a lack of clarity about the nature of the proposed legislation. It is legislation of general application that will apply, if given Royal Assent or upon Royal Assent, to all Canadians including Indigenous peoples. There is no lack of clarity in that respect.
There will be, I imagine, ongoing work with Indigenous governments and organizations on, as we’ve heard, how to deal with some of the issues related to legalization within their communities; but there’s no clarity about the legislation itself.
In terms of the second question about the intoxicants provision of the Indian Act, the Indian Act refers to intoxicants. It’s partly the nature of the French definition as well, but it suggests that it deals with alcoholic beverages.
On a review of several First Nation bylaws, you can see that some First Nations communities have established themselves as dry communities. That is the phrase used. They have used their bylaw-making powers. Typically, they would refer to a number of bylaw-making powers. Not just the one that deals with intoxicants, but also health, safety and other provisions under the Indian Act would be the bases for dry community bylaws that touch on both alcoholic beverages and in some cases drugs identified under the Drugs and Controlled Substances Act.
The validity of those bylaws is always a question the courts will have to determine. I’ll leave it at that.
Ultimately, a First Nations government goes through the process of determining what they believe their authorities are under the Indian Act or under other sources if they’re a self-governing First Nation. The federal government is not involved in reviewing First Nation bylaws as used to be the case several years ago. Hopefully, that answers your question.
Senator Tannas: I have some words on consultation and what we heard. Notwithstanding what you said, Mr. Costen, we saw the list of who was consulted and what activity was done prior to the cake being baked, and it was precious little.
There was a round table in Vancouver with Anne McLellan’s task force. There was a phone call on multiple issues to the head of ITK. This was one of the items in the phone call, according to the head of ITK, but it was listed as pre-drafting consultations, nothing else.
Then there are 90 different points of engagement that have happened to date on this bill which is perfect and has no need for change. That’s what we have.
I’ve asked the minister at our committee if there was one word in this bill that has anything to do with or has been influenced by the consultation that took place and got no answer.
We need to do better. Words and deeds with this government are not matching up. Do you know what? It’s hard work. I have a lot of sympathy for all of you because I know and have heard privately that it’s difficult to engage if the other side isn’t ready to engage. That’s part of the challenge, and I wish you well with getting better at this.
I want to focus on the licensing. Mr. Costen, how many of the existing licencees around cannabis have multiple facilities? Would most of them will have multiple facilities, or do you have a bunch of one-offs?
Mr. Costen: I’ll give you kind of a general answer. If you need precision, I will have to get back to you.
There are about 104 licences issued across the country currently. There is a handful of what I would describe as sort of the really big players. In those instances, those bigger companies have multiple licences and multiple sites.
Senator Tannas: Those guys who will dominate the recreational market. They have the money. They have $30 billion of market capitalization behind them.
Would it be tough for you to say, “Boys, you’re not getting a fifth licence unless it’s on Indigenous territory?” Would that be so tough to do?
Mr. Costen: Would it be tough for us to do? There are provisions in the act that allow for priortization. There are also provisions that would allow the minister the discretion to establish some type of criteria and then allocate licences based on that.
I am looking at my colleagues here, but in the kind of construct that you’ve described I think the proposed authorities would accommodate that type of situation.
Is that fair to say, guys?
Mr. Clare: Yes. There are provisions in the bill to prioritize the consideration of applications, but the system for licensing itself is based on public health and safety considerations. The decision-making criteria for whether or not an applicant actually receives a licence are based on the purposes of the act and to the extent it helps achieve the fundamental purposes tied to public health and public safety.
Senator Tannas: I would disagree. I would say this is also an economic development opportunity of historic proportions.
First Nations, Inuit and Aboriginal peoples across the country need an opportunity to participate. If we pair that with consultations or the lack thereof, which could lead to a lack of preparation, it seems to me to be fair that we might give a little help to the economic development activities of which Ms. Murphy is in charge.
I’d like to turn to her, now that we’ve heard this is not impossibl, that infinite licences can’t be done, et cetera. If we turned our minds to this, we’d have faith that you could figure that out.
Ms. Murphy, would you say that you are somehow concerned about the idea of an advantage, if you will, for Indigenous employment and Indigenous economic development around this notion of one-in-five facilities should be located on Indigenous lands?
Ms. Murphy: Certainly, we have changed our authorities to be able to accommodate Indigenous communities that want to come forward with proposals in and around establishing production or distribution of cannabis.
In entertaining those proposals from an economic development point of view, they might want to do a feasibility study. They might want a leg up to help leverage money from the private sector or a partner. We have the parameter that they will have to be licensed by the system.
In the case of a community, we would want to make sure there was community consent so that the community is knowledgeable and has agreed to that kind of economic endeavour occurring within their community.
Once that has happened, we’re quite happy to work with communities and businesses that want to get into the business. In fact we are already discussing with a multiple number that are very interested. Many of them have private sector partners. They’re not necessarily going to locate on reserve. They may be doing it in an off-reserve context, but they are eligible for funding within our program parameters.
When I was here last time, we said a number of communities were considering this. We’ve actually now received three proposals which we are looking at and working with communities on.
We are also working with our regional development agency partners to make sure, with the money we have, that the proposals make sense, that they’ve gone through the appropriate licensing provisions, and that we work to make those successful.
Senator Manning: I want to follow up on the consultation process. Minister Petitpas Taylor and Minister Bill Blair have both said that the government relied heavily on the feedback obtained by the task force.
However, according to a report of the consultation table with the APPA committee, on which Senator Tannas just touched, the majority of consultations, or rather engagement sessions as the government has repeatedly called them, took place after the bill was introduced.
Furthermore, the vast majority of consultations occurred after the bill was introduced and after the bill reached the Senate.
Can someone point to one specific clause in the bill today that incorporates the feedback and concerns of Indigenous people?
Mr. Costen: It’s difficult. You’ve heard the numbers, the 30,000 submissions to the task force and these sorts of things.
Senator Manning: Yes. What I am trying to get at is the consultation process. The ministers and their parliamentary secretaries said that the feedback obtained by the task force was what the government relied heavily on.
The question is plain and simple. Can you point to one clause in the bill that incorporates the feedback an d concerns of the Indigenous people of Canada? Yes or no.
Mr. Costen: What I was trying to say was: I take the point the senator made earlier that the consultations and interest have grown. Many invitations were sent out during the task force consultations, and not all of them were responded to.
To answer your question, senator, take, for instance, the conversation around minimum age and the determination that the age should be 18. Arriving at that recommendation, the task force sat in rooms not unlike this one and heard many different perspectives, including the Indigenous perspective.
As they worked through all of the different issues, the voices around the table including the Indigenous voices would have been considered part of the process for determining that advice.
To be able to isolate a particular element and ascribe it to any individual person or individual group would be very difficult because the nature of the consultation was to hear from a diversity of voices, balance out the advice being provided and provide, in many cases, a middle ground. That’s not the word I am looking for, but to take the balance of the advice provided.
That’s why it’s very difficult to point to one group, one organization or one person and say, “This is what you contributed to the bill,” because it really was a lot of voices.
Senator Omidvar: I have a few questions, and I am going to try to get them on the table as tightly as I can.
You did speak, Mr. Costen, about the impact of recommendation No. 1, which speaks to delaying the legislation. Could you speak specifically, though, on the impact of delay on Indigenous peoples in Canada, given their current overrepresentation in our system and their overrepresentation in prisons?
Mr. Costen: I’ll do my best. Again, it’s a big question. Perhaps what I’ll do is pick up on comments that Valerie Gideon was making earlier to questions that were being asked by the honourable senator previously.
The data we have right now around use of cannabis would suggest that about 36 per cent of First Nations young people use cannabis and 32 per cent of First Nations adults use cannabis. The opening premise needs to be that cannabis is widely available and widely used. The harms associated with using cannabis exist today. They’re not born of the change in law.
The challenges associated with lack of services, whether they are mental health services or drug treatment services, for the 36 per cent and the 32 per cent I just described exist today.
I don’t want to put words into Ms. Gideon’s mouth, certainly, but that’s an urgent problem and she described a number of things her program is doing to respond to that.
To the extent the committee is considering what the impact of delay would be, that’s the backdrop for assessing what the impact would be.
In the interests of keeping it tight, maybe I’ll stop there.
Senator Omidvar: There’s such a distance between what the Aboriginal Peoples Committee has heard about lack of consultation and what you’re saying, I am trying to understand and come to my question.
Do you have any parameters, criteria or framework that helps you define what an adequate consultation would be, or is it just a checklist?
Mr. Costen: We did this with the task force. What we do is set out a consultation strategy. In many ways in the case of the task force that was derived from the mandate they were given.
If you look at the terms of reference that the government provided to the task force, it isolated and prioritized certain groups the government wanted the task force to go out and talk to provinces and territories, Indigenous communities, experts in a variety of fields, and so on and so forth. Those terms of reference are actually appended to the report.
From that we developed a strategy. What tools will we use to hear from these people? Who are the influencers? Who are the major organizations? Of course, the task force had four and a half months to do their work. How do we get the biggest bang for the buck, so to speak? How do we design a consultation strategy that will hear from as many different people representing those target groups in as many different ways as possible?
Again, I leave it to others to judge the success or failure of the efforts, but that’s the strategy that goes into developing what an adequate consultation strategy would look like. We then replicate very much the same thing as we move through different stages.
As another quick example, we’ve mentioned a few times that we did some consultations on a proposed regulatory approach. We did the same thing. We identified who the target audiences were. Indigenous groups were very much front and centre. They were others, though. What are the strategies that we will deploy to get to them?
That’s the best answer I can give you around how we approached the thought of adequate consultation.
The Chair: Let me pick up on that. I’ve heard that to the Indigenous community consultation has a broader meaning than what we might consider it to be in the general community, let’s say.
It’s not just a question of going in and saying, “Here’s our idea. What do you think?” It’s a question of sitting down and something more formal being conducted, almost I suppose a negotiation. Maybe it is a negotiation, in effect.
Is that your understanding?
Mr. Costen: I don’t know that I have a lot to say in response to the legal implications of the word “consultation.” I don’t know that I have a lot of expertise there.
Mr. Matiation or others, is there’s anything you want to say about that?
Mr. Matiation: I don’t know if there’s much to add from that perspective. I think we’re talking about adequacy of consultation in the context of a policy and legislative development process. I think Mr. Costen has tried to characterize some of the considerations that go into that.
Senator Deacon: I am going to pass on my question because I feel like Senator Petitclerc and Senator Tannas have covered the area.
Without trying to flog and talk about the consultation over and over again, I want to take a moment to say I believe in something that has been a critical piece of the recommendations from APPA and a great diversity in trying to understand what it is and what it means.
Through this Bill C-45 process, what continues to be very clear to me is the great diversity and the understanding of readiness and consultation. I am just really pausing and saying, I hear the phrase “We are ready.”
Are we ready? What does readiness look like and feel like? What should it be? Do we have embedded in that readiness or in that process how we will monitor and measure what we’re doing while being agile and adjusting as this process moves forward?
I feel the readiness piece and the consultation have come out clearly in many different ways. Consultation is really part of what we call an engagement continuum. We’re going into the communities and we’re talking to our colleagues. Today we’re talking about our Aboriginal peoples and the recommendations.
There are three areas in that continuum: informing, consulting and collaborating. As we go into the room, into the house or into the meetings, I suggest we think about it being clear. What are we informing you about today? What is it that you need to know? What is the education piece, with some very clear principles? What will we be consulting you about reciprocally? What will we collaborate and work on together in a meaningful period of time?
We will not have all that in place on July 1, but building the conditions that look at that engagement continuum, of which consultation is a key part, will help us get to where we need to go in this area of the work.
I’ll pass on questions. I just wanted to tie that together.
The Chair: Good comment. Thank you.
Senator Poirier: We’ve heard many times the concerns of Aboriginal leaders, police forces, municipal leaders, mental health groups and many other different groups about enforcing the four plants at home, whether it will be impossible to monitor and whether that aspect of the law should be scrapped.
We talked earlier about the plant itself and the cultivation of the plant indoors and outdoors. We mentioned that outdoors it had to be not in the budding or flowering stage, if I remember rightly.
I am also aware, being from New Brunswick, that New Brunswick has provision in its provincial law that home plants can be outdoors, but they’re saying that have to be within a closed or fenced-in area at the same time.
I am also aware that there are quite a few First Nations communities in New Brunswick also. This means this law will also be available for them to do the same.
Are the Indigenous people prepared to enforce and monitor home cultivation, and specifically with the outdoor parts of it? Maybe the police could answer.
Mr. Daley: Having served half my career in New Brunswick, I am very familiar with the First Nations communities there. I am not sure. I think you framed it, “Will the Indigenous people,” as opposed to the police.
Senator Poirier: Will the Indigenous police force be able to enforce and handle it in First Nations as much as the police force in the municipalities?
Everybody seems to be concerned about it. In New Brunswick I am hearing an awful lot about it.
Mr. Daley: As you know, in New Brunswick and within the other provinces the RCMP is contracted throughout, with the exception of Ontario and Quebec, to provide policing services including in the North.
As I stated earlier, when it comes to home cultivation my role in law enforcement is to enforce the law when it passes.
As far as being able to enforce that, again I made comments earlier. When I look at that situation, I look at public safety in general. I look at other things such as access to youth within the home. I look at potential for fire. Anything that I previously mentioned would all come into how I address the enforcement of home cultivation.
Let me be clear, though, that the RCMP will be ready to enforce legal cannabis, home cultivation or not. We are providing support across the country to the law enforcement community with awareness and training so that one would expect law enforcement across Canada, whether or not it be the RCMP, would be able to enforce the law on or off an Indigenous community.
Senator Poirier: Do you feel that we will have the manpower in the numbers of police officers needed to enforce this law?
I am hearing from the municipalities also that they’re fearing they may not have the finances to be able to have the numbers of RCMP or police forces they need to even look at monitoring this law.
Mr. Daley: What I can say to that is there are mechanisms. We contract through Public Safety Canada with the provinces. There are mechanisms in which to increase, if that is the need of the particular municipality or province. The RCMP, through our annual performance planning, meets with communities, Indigenous or not, and form the performance planning for that year. Those will be in consultation with the communities to determine their priorities.
Then we would distribute the enforcement capacity, people power, to be able to react as necessary.
Senator Poirier: If they can financially afford the extra costs.
The Chair: That brings to an end this panel. Thank you very much for all of the input on the particular report.
I welcome our third panel. We continue to have Health Canada. As well we have from Public Safety Canada, Trevor Bhupsingh and Rachel Huggins; from the Canada Border Services Agency, Carl Desmarais; and from the Royal Canadian Mounted Police, Chief Superintendent Paul Beauchesne, Director General, Federal Policing Criminal Operations; Chief Superintendent Dennis Daley, Director General, National Criminal Operations, Contract and Aboriginal Policing; and Paul Boudreau.
The particular report from the Standing Senate Committee on National Security and Defence does not have specific recommendations. It is a short report with a number of observations and a number of concerns that are raised.
Do you have any initial comments about these concerns that are raised, or do you want me to go right to questions?
Mr. Costen: Mr. Chairman, I think it would make sense to go straight to questions.
Senator Petitclerc: My question is simple. The report contains information concerning the basic safety of Canadian travellers, who could be inconvenienced by these new measures.
Some witnesses spoke about delays and the questions that are put to them when they travel to the United States. It seems to me that the solutions are not complicated. We’re talking about education. Travellers must have relevant information and it must be made available through adequate means. Are those mechanisms being put in place? Are they already in place? Will those measures be in place when the bill is adopted?
Mr. Bhupsingh: Thank you very much for the question. Generally, discussions have been going on for quite some time with our American colleagues across a range of issues that have been raised on Canadian travellers going to the United States. In terms of the timing of this, there’s active engagement at many different levels.
There are some difficult questions to sort through. A number of those questions have been raised by various Senate committees. We are working through those issues with our American colleagues.
I would say two things. First, we’re working on some of the issues at the border with American colleagues in terms of their posture toward this proposal. At the same time, we’re also working on public awareness, as you raised, for Canadians because there will be implications.
The import and export of cannabis across the border remains illegal. We just don’t want confusion for Canadians in terms of what is possible when going across the border.
I reiterate the point quickly that Canadians who wish to enter the United States or any other country, they have to adhere to a sovereign state’s local laws to gain entry into that country. In a general sense we’re trying to communicate to Canadians the laws of the U.S. government around cannabis and their federal regime.
Having said that, we are trying to figure out what is the American stance with respect to cannabis. They have indicated to us in primary questioning that they don’t plan on changing their posture around that.
How that will all play out and how that will be implicated are yet to be determined in terms of what the actual practice will be.
We’re in active discussions with our American counterparts through many different channels such as the public safety channel and colleagues from the other federal departments represented here.
Senator Seidman: If I look at the report that came from the Standing Senate Committee on National Security and Defence, there is a lot of repetition of the words “awareness campaign” right through many recommendations, suggestions and encouragement to the government.
I would like to ask about awareness campaigns for Canadians in relation to what they might expect when they cross the border.
For example, number 4 indicates that the awareness campaign should make it clear to Canadians they may be denied entry into the United States if they admit to previous cannabis use.
Although Canadian officials who appeared before that committee stated an awareness campaign would be launched soon, the committee suggested that additional efforts should be made in the coming months to ensure that Canadians understand the seriousness of the consequences they will face if cannabis is found in their possession at the border or if they admit to previous cannabis use.
I would like to hear where we are in the process of how to make Canadians aware and help them prepare for what they might face when they cross the border with special regard to the particular issue, for example, the potential of being banned for life from the U.S. for admitting to something that the Canadian government will be making legal.
Mr. Bhupsingh: Public awareness is a key and critical piece in terms of explanation to Canadians on what actually is the law. Again, I would reiterate the fact we are dealing with a sovereign state that sets its laws with respect to import and export of drugs.
That being said, in terms of the public awareness for Canadians the process is under way. There is a number of different components to that piece. I will have colleagues speak to the piece of public awareness they’re working on.
That campaign will deal with, for example, travel advisory sort of information to Canadians and educating them on the U.S. law.
We plan on engaging Canadians in a number of different ways, including social media and active public awareness. One of the big issues is signage at the border. Those types of operational activities are under way in terms of moving forward.
I don’t think there’s necessarily disagreement in terms of some of the recommendations here. Most of these actions are actually operationally either occurring or are being planned to occur. That being said, I would say that public awareness is a key component for us moving forward.
In terms of the timing, that public awareness is imminent. There has already been public awareness more generally about the cannabis legalization and regulation regime. The Canada-U.S. piece is one we have been focusing on. As I mentioned, there have been ongoing discussions with our American colleagues and those are continuing.
I will leave it there and see if other colleagues want to comment on the specifics of public awareness.
Mr. Costen: I have a very specific point. Trevor Bhupsingh did a good job outlining the broad-based how-to communicate rules for all Canadians contemplating travelling.
I have one small detail that is an important point for your question. As a part of our proposed regulations, with every unit sold in a provincial retail store the consumer will be provided with a consumer fact sheet. There will be basic information about the health harms and risks associated with consuming cannabis and some other key details, including the rules around taking it across the border.
You can be assured that at every point of transaction anyone who purchases cannabis will be handed at the cash register, or it will be put in a bag along with the product they buy, a little card that has the key facts, including basic messaging around keeping it in Canada, not taking it across borders, and these sorts of things.
Senator Gold: This is a question about border issues. We know that the United States has the ability to ban for life if you admit to cannabis use. We heard testimony to that effect in other committees. That’s a problem yesterday, today, and it may not change after legalization.
I would like a sense of the magnitude of this problem, though. Over 40 per cent of Canadian adults admit to having smoked cannabis sometime in their lives. How many Canadians are being turned away at the border for this particular reason?
To add another jurisdiction, there are countries like the Netherlands or Portugal where cannabis has been decriminalized. Do we have data on whether citizens from those countries have been denied access, for example, to the United States because they were asked and admitted to having consumed cannabis?
What is the real world magnitude of this problem?
Carl Desmarais, Executive Director, Enforcement and Intelligence Programs, Canada Border Services Agency: Unfortunately I don’t have statistics in terms of admissibility decisions rendered on the basis of admissions of cannabis use in the past.
I think the premise of your question is the right one, which is to suggest that a large number of Canadians already admit to having used cannabis through a number of different vehicles.
From a planning perspective we expect the American posture, as it was indicated, not necessarily to change at least based on early indications we have from the American government. We expect the travelling public to experience similar interdiction rates, I suppose.
That being said, it will be important for us, as we have in the past, to have a chance to have ongoing discussions with our American counterparts and to continue post-implementation to monitor enforcement actions our American colleagues may be undertaking to understand the prevalence of the phenomenon and how it may arise in the future.
We will be in a position to continue doing that through existing mechanisms that we have. We have various fora with our customs and border protection colleagues at various levels. We have ongoing discussions with them.
The discussions we have had so far is that the interdiction would remain the same. I don’t think there are plans to ask specific questions about past use. Again, they have the sovereign right to determine the admissibility requirements and that may change. We can’t speculate about future posture, but at present I think we’re reassured by their response.
Senator Gold: The lack of data notwithstanding, do you have anecdotal evidence or can you provide the committee with the extent to which these questions are asked at the border by American counterparts?
Mr. Desmarais: I wouldn’t wish to speculate on that.
The Chair: Let me follow up on that briefly. If someone goes to the border and they don’t have cannabis on them, but they are asked the question whether they have used cannabis. Of course, at some future point in time, it will be absolutely legal in Canada to have consumed it.
Yet you’re saying a border guard can still ask if they consumed cannabis, and if they say yes, because you say they should always tell the truth, the border guard could determine that they’re banned certainly on that occasion and may be banned for life.
What recourse do people have? It will be a legal substance in Canada. It is even legal, not by the federal authority, of course, but in some of the states in the United States. What legal recourse would someone have from a border guard just deciding you are banned for life because you once had weed?
Mr. Bhupsingh: That’s an important question. I can look into that, but I am not aware of the legal recourse from American counterparts that there could be for a decision like that one.
I would highlight that, yes, there is discretion for border guards. In early discussion with our American counterparts, they’re not intending to ask in their primary about cannabis use. That’s what they have told us.
However, if there are indicators that someone has been using cannabis, for example if someone comes up and there’s the smell of cannabis, or someone is indicating that they may be impaired, then you could probably assume that border guards will go through their natural order of asking questions in terms of cannabis. That will lead to a logical conclusion. They could be referred to secondary. Those risks do exist.
The Chair: Your understanding is that they will not ask the question, if there is no sign, “Have you ever used cannabis?”
Mr. Bhupsingh: Our understanding from our colleagues in the CBP organization is they won’t be having a question on cannabis usage in primary, which is the initial interaction with people crossing the border.
The Chair: It is good to get that clarified.
Senator Munson: You read my mind, Chair. I wish we could talk in layperson’s terms so that Canadians who are watching understand about this.
Is there a written agreement that the primary question will not be about that? As the chair mentioned, 40 per cent of Canadians have smoked marijuana. Border guards can get aggressive. They have their own suspicions and the rest of it.
I am not assured today that people who have smoked marijuana in the past can assume that question will not be asked. I wish you could give us more assurances that there is an agreement between the two countries that is not part of the primary questioning. I think it will be. I think it will be top shelf at the time this bill becomes law.
You say you have assurances. We all get assurances. Is anything written?
Mr. Desmarais: The minister was asked the same question when he was in committee. I think his answer was that it is highly unlikely the Americans would agree to accept such an agreement.
The same is probably true for Canada as well. We have to keep in mind that the officers in their day-to-day interactions maintain a certain level of discretion to be able to proceed with a progressive examination. It is the same for Canada Border Services Agency. Some of those questions may be asked based on specific indicators or potential suspicions that the border guard may have.
To conclude an agreement that would essentially eliminate the discretion of officers is very likely something that our American counterparts would be very reluctant to conclude, as it would also impact their ability to determine their own admissibility requirements.
Senator Munson: I have another question that has to do with pardons. Sometimes I feel we have the cart before the horse. There are tens of thousands of Canadians who still have a criminal record because of simple possession of marijuana. Of course, they cannot go to the United States of America.
The Prime Minister has hinted that perhaps, after this is all said and done, pardons will happen.
Have there been discussions with any of you behind the scenes of preparing an official plan for those who have pardons that will come to light once this bill becomes law? Has the United States of America been informed that this country will do the fair thing very soon and issue pardons for those who have been convicted of simple possession?
Mr. Bhupsingh: I would say that the government understands that pardons or, as we call it, record suspensions are important. I know we have been leading a review of pardons more generally, not only just with respect to cannabis. There is ongoing discussion around pardons at this time. As they are ongoing there isn’t necessarily any outcome, but certainly I would say in terms of its relationship to cannabis those considerations are going on.
Senator Manning: My question is for the RCMP. Senator Boisvenu asked this question of Minister Goodale on February 1, “How many RCMP detachments have a drug recognition expert on staff 24 hours a day?”
Your department produced a number of DREs but did not answer the question. I am hoping to get more information today. Can you tell us how many RCMP detachments have 24-hour day staffing by drug recognition experts?
Mr. Daley: I can’t tell you today how many we have 24-7. The way we deploy is that we would expect to have access to a drug recognition expert 24-7.
We would have access to that person, so that person may be in a neighbouring detachment or may be on call. There might be various opportunities there to engage a drug recognition expert.
I can tell you that RCMP national traffic services are taking the lead in enhancing the numbers of DRE personnel both within the RCMP and within the police community in Canada. Right now, the last time I checked at the beginning of May we had 743 trained drug recognition officers across the country, both RCMP and non-RCMP police personnel.
To answer your question, and now I am only speaking for the RCMP, we looked at different deployment models to handle whatever demand may be there. We would look at either an on-call model, a neighbouring detachment or for access to that.
It is similar to the alcohol regime where we have intoxilyzer technicians, as we call them. I can’t guarantee somebody on the alcohol side is working 24-7. However, I can guarantee there’s access to somebody.
Senator Manning: Maybe as a segue into talking about alcohol, we have heard from several witnesses in relation to the development of the signs to determine if a person behind the wheel is impaired by cannabis.
Can you give us any idea or any information on the progress of that from the RCMP point of view? If this comes into law within the next couple of months, how do we determine or address that situation on our highways?
Mr. Daley: From the policing community, the RCMP specifically, drug recognition experts or people we do standard field sobriety testing are not new to policing. They have existed for quite some time.
We are increasing training and availability. For instance, in this fiscal year of 2018-19 we’re looking at putting on an additional 22 drug recognition expert training courses for all policing across Canada.
The mechanisms to enforce impaired driving, both alcohol and drug related, exist now. We’re working toward enhancing that ability and making sure the general awareness of our officers and the specific skills of our SFST or standard field sobriety testing people and drug recognition experts are enhanced across the policing community.
Senator Dean: Thanks for the terrific advice and information today from our government colleagues.
I noted at one of the committee hearings that immigration lawyer Lorne Waldman testified that under a legal and regulated cannabis regime Canada’s ability to argue for a change in current U.S. border practices would be considerably enhanced.
I note a reference in the last sentence of section 7 of the report that kind of alludes to the point of calling for an approach to discussions with the U.S. that would reference a legal activity following the coming into force of Bill C-45.
To the extent that you can comment on this, do you think that Mr. Waldman had a good point?
Mr. Desmarais: Mr. Waldman and CBSA have a long-standing relationship. I’ll start with that.
I think the point Mr. Waldman was trying to make was one about moral authority in our negotiations with American colleagues. He was trying to explain that if recreational use was actually a legal activity in Canada or not illegal, perhaps it would change the American stance with respect to their own admissibility requirements.
Again, I can say the Americans have shown great interest in our proposed legislative changes. We have had numerous discussions with them to try to explain how the legislative framework would actually work in practice. They’ve paid great attention to this.
We’ve also tried to reassure them in terms of our own enforcement posture that the prohibitions that currently exist will continue to exist and that we have actually allocated additional staff at their own ports of entry to be able to detect potential trafficking of cannabis moving forward.
Our strategy has been one of information, and we hope this information will eventually lead to informed decisions by American officials with respect to their own admissibility requirements. I wouldn’t go any further than that to either agree or disagree with Mr. Waldman.
Senator Dean: That is completely understandable.
Senator Omidvar: Cannabis has been legalized in more than a few states in the U.S., and some of these states border Canada.
How do we deal when American visitors are coming to Canada? What questions do we ask them? Have we adjusted the processes over time as more American states have legalized cannabis?
I am trying to turn the mirror a little on ourselves here to gain some wisdom as to what we want our American counterparts to do.
Mr. Desmarais: Is the question what we should ask American travellers?
Senator Omidvar: No. What do we currently do when American visitors come across the border? Because it is illegal in our country right now, does the CBSA ask them a question about having used cannabis?
Mr. Desmarais: Right now it’s not a mandatory question. We’re not asking about any specific cannabis use.
Senator Omidvar: We don’t ask ever.
Mr. Desmarais: It’s not that we don’t ask ever. It would be a threat or risk-based question. Generally we train our officers to use progressive examinations. If there are indicators, again, that potentially imports are occurring, then the officer may make a determination to refer that individual to secondary for further examination.
It would likely be based on specific indicators but not necessarily through systemic asking of questions, which is what we plan on doing going forward.
Senator Omidvar: Have our processes changed over time because more U.S. states have legalized cannabis?
Mr. Desmarais: No, our processing has not changed.
The Chair: To follow up on that, it sounds like it mirrors the U.S. process. It sounds like you’re doing the same thing they would do.
If somebody seems to be intoxicated, you might ask those kinds of questions.
Mr. Desmarais: Correct.
The Chair: But you don’t ask it as a primary question of whether or not they’ve ever done it. In both cases it’s also illegal to bring it across the border either way. It’s a parallel situation, pretty well at the moment.
Mr. Desmarais: It’s important to recognize the prohibitions that currently exist will continue to exist. From an enforcement perspective and from a border processing perspective, nothing has truly changed. We have to keep that in mind.
In terms of our officers, the officers will also have access to various tools and various sources of information. For example, someone who might have been in the past convicted of a drug-related offence might be subjected to a secondary examination. There are various factors that could actually lead an individual being referred to secondary.
Senator Omidvar: The report from our committee suggests in recommendation No. 3 that Canada explore a bilateral agreement with the U.S. to cover off all these questions.
Do you think we need an agreement, or do you believe current processes can be adapted to fit the new reality?
Mr. Bhupsingh: I don’t think an agreement is necessarily what we need, for all the reasons my colleague from the Canada Border Services Agency explained in terms of the difficulty with balancing a hard, steadfast agreement with other things such as officer flexibility in terms of questioning. That’s very difficult.
There are other avenues you can pursue, though, that we are trying to do a little less formally than an agreement. A number of existing committee engagements at the official level for many of the departments that are here are ongoing, where many of these issues are being discussed and can be resolved. They’re ongoing now and will continue to go on after cannabis is legalized if the bill is passed.
I would say the general impression is I don’t think an agreement is necessarily necessary. It would be hard to get an agreement, but that shouldn’t preclude us from doing other activities in terms of pursuing the issues being raised.
Senator Oh: My question is about border crossing and international travel.
First, for U.S. border crossings there’s no guarantee that Americans wouldn’t step up with tougher checks once Bill C-45 is passed and cannabis is legalized.
There is a waiver if you are stopped from crossing into the U.S. It will cost $1,000 to get a waiver once a year to be able to get back into the U.S.
Does the government have any plan to help the people who are stopped on this issue and need to apply for a waiver?
Mr. Bhupsingh: With respect to the waiver, I am not sure of the assistance you’re implying. Perhaps I could interpret what the question is.
Again, we’re not setting the process in terms of what our American counterparts will do around entering into the United States. Currently the process is a waiver system. As you mentioned, there is a cost to that. That’s purely an American process that’s set by them in terms of the conditions, the cost, et cetera,
At this time the federal government isn’t contemplating anything with respect to the U.S. waiver for entry if you’re denied.
Senator Oh: My second question is about international travel.
In Asia-Pacific Rim countries like Indonesia, Malaysia, Singapore and Thailand, to carry any drugs into their countries carries serious punishments, including capital punishment. Last year, six Australians were hung in Indonesia just for drug trafficking.
How are we giving this awareness to young Canadians for international travel?
Mr. Bhupsingh: Maybe I’ll turn to my colleague from the CBSA to answer that. I just remind you that colleagues from Global Affairs are on the next panel. That might be a good question to pose to my colleagues from Global Affairs as well.
Mr. Desmarais: That question would probably be better answered by our colleagues from Global Affairs Canada.
What I can say, though, is that any international traveller has responsibilities and obligations prior to departure, one is to inform themselves about the applicable laws in the country they will be travelling to and visiting.
In doing so, it’s the government’s responsibility to provide information to the travelling public. I think Global Affairs Canada has initiated additional work to try to provide travel advisories in that respect, as it’s done typically.
A number of different travel advisories are available to the Canadian travelling public. That is a vehicle by which information is disseminated to Canadians. I am not sure if that answers your question.
The Chair: Global Affairs is coming up, Senator Oh, on the next panel.
Senator Poirier: Most of my questions have been answered, but I just want to add to one.
When we’re crossing into the United States, if we need to have prescription medication with us, usually there’s no issue of bringing it across. Medical marijuana has been legal in Canada for a number of years. I am assuming it probably wasn’t questioned much at the border going through duty with it.
Coming forward, will it be more complicated with the ongoing legalization of marijuana to cross into the United States? What will be the issue with medical marijuana, even if they have prescriptions?
Mr. Costen: It’s a pretty simple question to answer. As it stands today, you can’t take it across the border, even if you’re an individual authorized to possess and use it in Canada for medical reasons. We’re not proposing to change that going forward.
Senator Deacon: I’ll leave my first question for Global Affairs. My second question is actually specific to Chief Superintendent Daley.
I see in the work you do that part of it is leading Aboriginal policing. I was wondering today, with the gift of you here, if you could share with us anything you are anticipating, planning for or wondering about as it relates to the legalization of cannabis and the policing aspect of your work with Indigenous communities.
Mr. Daley: Certainly I am no more concerned about the Indigenous community than the impact on broader Canadians. We are doing a tremendous amount of work on the education side of our own employees with respect to the cannabis act so that they will be well versed in the act when it is passed.
Serving in some of our northern communities does present some challenges for the RCMP, specifically simply on the ability to staff those and to have a regular mobile police force. It just impacts service delivery, whether it be toward the cannabis act or not.
Policing tends to be always kind of a fallback position. We rely heavily on our government partners to provide a wraparound service so that we can assist anybody.
We have a large focus on youth, be it Aboriginal or not, through our crime prevention services and access to websites and social media where we’re doing a lot of awareness campaigns.
To answer your question, I guess the unknown when it comes to law enforcement as to the public safety impacts of any change is what concerns me. Any sort of change, whether it’s a new law, a new technique or a new implication on policing, is what generally concerns me versus a specific.
Policing is very good at reacting, reinventing itself and finding solutions to a service delivery issue. What keeps me awake at night is simply the whole public safety aspect, whether it be home cultivation or how will things change going forward.
Senator Deacon: I put that to you because that change piece will be significant in the work you’re doing, absolutely.
We have heard extensively from the APPA committee about readiness and request for delay. As I was asking that question today, I was trying to think about that being more acute or perhaps more of a concern in a population that says we’re not ready.
We can say that probably coast to coast to coast in some aspects, but I asked the question for that particular group.
The Chair: It does raise in my mind another question that is relevant to this border issue.
There are reservations that overlap the borders between Canada and the United States. Are there still hard border services in those communities? How would this work in terms of cannabis going back and forth on a reservation that in effect is on both sides of the border?
Does anybody have an answer to that? Maybe it doesn’t exist anymore.
Mr. Desmarais: I can attempt to answer that. I think the entry requirements remain the same. It does present some challenges in specific communities where because of geographic dispositions the port of entry may not necessarily be placed in an ideal situation.
In those cases, we have discussions at the local level to ensure that there’s a common understanding of the entry requirements moving forward so that we can have a smooth implementation.
Holistically, from a border perspective, entry requirements will remain the same.
Senator Tannas: I am curious because there is an equal opposite issue between Canada and the United States, and that would be Americans who turn up at the border with handguns. It’s perfectly legal to have a handgun there, and in some states even hidden on your person.
Do we see it a lot where an American citizen shows up at our border in a car with a handgun? Does that happen a lot? If so, do we refuse them entry and ban them from entering Canada forever? How do we handle that situation as it exists now?
Mr. Desmarais: I’d say it probably happens more often than people would imagine. We have specific signage to that effect to ensure that there’s not an oversight by the travelling public.
American citizens are informed of our entry requirements. They have specific signage. It does impact their admissibility. We have the ability to seize weapons. We do frequently. We have the ability to pursue criminal charges in some respects as well, when circumstances are such that it may be required.
I’d say it happens fairly frequently, and in some parts of the country probably more than others as well.
Senator Tannas: Does that get them on our forever naughty list so they can’t come back to Canada if that happened? Is that automatic?
Mr. Desmarais: There are a variety of scenarios that could be contemplated depending on the action and the enforcement that would have been taken.
For example, if it leads to a criminal sanction, then there will definitely be some long-term effects. How long that may be or the various avenues to overturn that admissibility is not something that I can necessarily speak to; but there are definitely avenues where that can be done.
Senator Tannas: In your organization, do you have any mandate or reference to a mandate about your role in enabling Canadians to cross into the United States?
Mr. Desmarais: Our role is very specific. It’s to process inbound travellers.
Senator Tannas: Let me ask you this, because I think you will send me to Global Affairs.
If Global Affairs comes to you and says, “Look, we’ve been contacted by senator so-and-so from the United States. This is his nephew, and he has been refused. It was all a big mix-up. We think you guys are being unreasonable,” how often would you welcome that kind of thing and how often would you change it?
What I am getting at here is it seems to me that you guys and your counterparts in the United States are the ones who need to have some kind of a common sense platform by which you can sort out personality things that happen at the border and cause someone to get on a list because they said the wrong thing, they said something stupid, they lost their temper or they’re nasty people but not law-breaking people.
Is there anything like that in your minds that would be helpful in your role and helpful to Canadians trying to go to the United States?
Mr. Desmarais: I won’t comment on the various forms of representation we receive from various constituents across the country including senators perhaps, or even from international partners that we may have.
What I’d probably say is that this is the case for any border agency. We’re all in the same business of essentially managing the flow of traffic. In doing so, there’s a reason why, as I think is the case in every administration, a fair amount of flexibility and discretion provided to officers to make decisions. We have to be mindful that we’re now processing over 100 million people on an annual basis.
Officers have a fair amount of discretion. The discretion is available so officers can actually assess the specific case circumstances of each case. In some cases there may be aggravating circumstances that lead to certain enforcement actions, whereas in other cases there may not be.
I am not sure there’s a clear answer to your specific question, but I’d probably refer to the officer discretion as a tool that has been put in place to deal with the variants in case circumstances.
Senator Tannas: Would you say that this problem is about to get significantly worse, if indeed it’s a problem?
Mr. Desmarais: I think we’re equipped to monitor the implementation to see how it will be impacting our processing of inbound travellers. We definitely have the capacity to do that.
I think it’s important for the committee to appreciate that we have also obtained additional resources to facilitate that processing so we don’t create additional border delays and recognizing that we will be asking additional questions.
Sometimes it appears like it’s nothing to ask an additional question, but when you’re processing 100 million people a year, even a small increment of one question has an impact. In all of our preparation, we have asked for and received additional resources to facilitate the processing of returning Canadians or foreign nationals.
Senator Munson: I think this question is for the police. I’ve been reading a recent Vice News investigation based on police data that reveals Indigenous and Black people are consistently overrepresented in cannabis possession and arrests in cities. I want you to confirm for us this morning if that indeed is true.
I will also ask a little preamble in light of that. The companies licensed by Health Canada do have international partners. There are many people from a background of long ago who are now lawyers or businesspeople and are reluctant to even apply to any of these companies for a job because in many cases they legally can’t hire people with criminal records for certain positions.
Would you like to comment on that and how it reflects upon the minorities in our country and their opportunity to have the same working space as others?
Mr. Daley: I can certainly make a comment toward your first question with respect to overrepresentation. I think that was the gist of what you were saying.
I am not familiar with the Vice News article. Nor am I familiar with the exact statistics you refer to.
Speaking for the RCMP, in every interaction we have with a person in the Canadian public we’re governed by the Charter of Rights and Freedoms. We have human rights legislation that we abide by. We have an internal, bias-free policing policy that speaks to the absolute requirement to treat people with dignity and respect.
I would expect officers to adhere to each one of those in every interaction, recognizing that the RCMP has hundreds of thousands of interactions with Canadians across the country.
Of the Canadian public, the person or the client doesn’t feel like they’ve been treated properly, there are numerous oversight mechanisms, whether you look at organizations like the independent office in British Columbia, the Nova Scotia serious incident response team, internal public complaint mechanisms or human rights legislation. All those provide, in my view, the necessary oversight.
Police are governed by the facts or what presents in front of them. It is no different for someone arriving at the port, as we have heard, with certain indicators that then allow the police officer to conduct a further investigation.
That’s how policing in Canada works. I guarantee you there is certainly enough recourse in my view. If someone doesn’t feel served correctly, there’s enough oversight. Our officers are well aware of that oversight and the ramifications of that oversight, whether it be a code of conduct internally, a supervisor discussion or what have you.
Your second question was on how people may be disadvantaged from employment.
Senator Munson: In a sense of fairness, do people deserve a second chance despite having a criminal record for simple possession? Maybe Health Canada could answer that.
I know it is difficult as a senior bureaucrat to get into the minutia of all of this. I am sure you probably have a heartfelt position, when it comes to people trying to invest or be part of what would be a new industry, that there is an opportunity there for Canadians where there are still legal hurdles to try to overcome.
Mr. Costen: The senator and perhaps your colleagues will know by this point that I have no problems descending into the minutia.
There are two dimensions to what you are asking about. The committee has heard, as a part of the licensing process, that the regulations today and the regulations we envision in the future identify certain key members of a company who are determined to occupy positions of influence, whether they are in charge of the security of the company or whether they are in charge of processing.
We have identified a series of positions as being material. It is not all positions in the company. Frankly, it is probably a minority of the positions in the company.
Regarding hiring decisions on whether or not the existence of a long past distant charge for drug possession, to use your example, would create a barrier to employment in one of these non-essential positions is really a company decision. They all have their own hiring processes. In some instances it may and in some instances it may not.
With respect to positions of influence, they are detailed in both of those regulatory papers I have mentioned on a couple of occasions. If you are interested, perhaps that’s something you might want to look at. The idea is that in the positions of influence we want to ensure the persons who occupy them have no direct or even indirect links to organized crime.
We are looking at anything that would compromise the integrity of the regime or the operations of the regime.
If you look at the minutia of the regulations, that a person may have a past charge for possession, as an example, doesn’t by default exclude them from getting a security clearance. The regulator, working in partnership with our friends at the RCMP, will look at the facts before us. Then we will make a decision based on all facts presented whether that person presents a threat or a risk such that we don’t want to issue a clearance.
Simply having a criminal record for possession or something like that doesn’t de facto mean that you are rejected.
The Chair: Thank you very much. That brings us to the end of this panel.
For our fourth panel we welcome back our Health Canada officials who have been with us all day. We also welcome, from Global Affairs Canada, Mark Gwozdecky, Assistant Deputy Minister, International Security and Political Affairs; Alan Kessel, Assistant Deputy Minister, Legal Affairs and Legal Adviser; and Kevin Thompson, Director General, North America Strategy Bureau.
I understand you have some opening comments, Mr. Gwozdecky. I will let you go to them now.
Mark Gwozdecky, Assistant Deputy Minister, International Security and Political Affairs, Global Affairs Canada: Thank you, Mr. Chair. In the course of the Senate study of Bill C-45, the Minister of Foreign Affairs appeared before the Standing Senate Committee on Foreign Affairs and International Trade to discuss the international implications of Bill C-45. Officials from Global Affairs Canada also appeared before both the Senate Committee on Foreign Affairs and International Trade and the Senate Committee on National Security and Defence to discuss the international implications of the bill.
I will speak briefly to the key points raised in these hearings, and which we believe respond directly to many of the recommendations offered by both committees.
I’d like to begin my remarks by stating that Canada remains a committed international partner in the fight against the world drug problem. We are unwavering in our commitment to working with our international partners to combat drug trafficking and mitigate the negative consequences that stem from problematic substance use.
As you know, Bill C-45 proposes a strict regulatory framework for the production, distribution, sale and possession of cannabis, and strong penalties for those who break the law, with the aim of restricting youth access to cannabis and deterring criminal activity.
As Minister Freeland stated on May 1, the government considers the objectives of Bill C-45 to be consistent with the overarching goal of the UN drug conventions to protect the health and welfare of our citizens. The government acknowledges that the proposed approach to legalize, restrict and strictly regulate cannabis will nonetheless result in Canada being in contravention of certain obligations related to cannabis under these conventions.
As I stated on March 21, the government does not intend to take any treaty actions at this time. We remain a strong supporter of the international drug control framework which regulates the movement of over 100 drugs and substances, including many that play a role in the current opioid crisis and many others which are vital to our health.
The world drug problem manifests itself differently around the world, and there is no one size fits all approach. Increasingly, the international community recognizes the need for countries to design national drug policies to fit their specific circumstances and needs. Bill C-45 is a domestic Canadian policy response to domestic Canadian health and safety challenges, and we do not advocate for legalization as a solution for others.
Moving forward, we will continue to work with our international partners to advance the objectives of the drug control framework, including through the exchange of information and intelligence on drug threats, sharing expertise on approaches to mitigate the harms of problematic substance use and supporting capacity building to combat trafficking.
The other issue that has been considered at length by both the Standing Senate Committee on Foreign Affairs and International Trade and the Standing Senate Committee on National Security and Defence is to work with the United States to ensure that the border remains efficient and secure, and that there is no adverse impact from the legalization of cannabis in Canada.
We continue to engage with relevant U.S. authorities to ensure a common understanding of the changes to Canadian policy and the consequences of these changes, and to identify the different approaches undertaken by Canada and the United States.
The Government of Canada has maintained an ongoing dialogue with our U.S. partners since the federal government introduced Bill C-45 at the ministerial and senior official level, as well as through regular meetings with the U.S. embassy in Ottawa and between CBSA and its counterpart, the U.S. Customs and Border Protection.
Through these discussions, we have been keeping the U.S. informed about this legislation, as well as listening to their concerns. Both countries share the objective of minimizing the impact on the border and preventing the diversion of legal cannabis to the black market. U.S. federal law currently prohibits the importation, possession, production and distribution of cannabis, even though it has been legalized in certain U.S. states.
The U.S. federal government has clarified that they do not plan to change their approach at the border in the event cannabis is legalized in Canada. As is currently the case, possession or prior use of cannabis could result in denial of entry into the United States.
It is critical Canadians are aware of these rules and regulations. For this reason, Global Affairs is leading a comprehensive education campaign with other key departments to inform Canadians and international travellers of what they need to know about cannabis and international travel before they cross the border.
Senator Oh: Gentlemen, my question is regarding international travel. As you know, Asia-Pacific Rim countries, including Indonesia, Malaysia, Singapore, Thailand, et cetera, have capital punishment for drug trafficking or carrying drugs into the country.
Do we have any special waiver for Canadians who carry cannabis in for personal use? How do we protect Canadians from getting into a serious problem?
Mr. Gwozdecky: That’s a very important question, and we are working hard to address this so that Canadians can be properly educated when they choose to travel.
I mentioned that our department is leading an effort across the government. Multi-departments are involved in developing a communications plan to ensure that travellers are aware of the prohibition against taking cannabis across borders and other cannabis-related risks.
This involves, as I mentioned, other departments including Health Canada, the CBSA and Transport Canada. The plan involves use of traditional print-based media, videos that could be used at airports and rail stations, signage at points of entry and exit, as well as a range of social media.
In addition, the government has a coordinated plan of direct outreach to a range of stakeholders. These could include transportation associations, bridge and airport authorities, travel agencies, et cetera.
There is a particular focus on the youth audience through channels used during the successful Don’t Drive High campaign.
We will also be leveraging our mission network abroad to ensure that we are able to share more readily and effectively cannabis-related information about the risks of travel abroad.
I would point out, sir, that the Government of Canada and our department maintain websites that give travel advice to Canadians travelling to every country in the world. That exists today.
I would highlight for you that the risk you highlighted for travel in certain countries in Southeast Asia is already a feature of our travel advisory websites. We have a dedicated page per country, and we have a dedicated page for alcohol, drugs and travel. On that page, which is among the most visited of our web pages, it highlights the fact that there is a death penalty for offences related to narcotics in countries like Indonesia, Malaysia, Singapore and Thailand. The specific web pages associated with those countries would also highlight those kinds of risks.
Those risks exist now. Under our new proposed information campaign, we will be highlighting even more information so Canadians can be properly informed.
Senator Oh: Regarding the website, I do not think it is good enough. When do you plan to step up before cannabis becomes legalized?
Mr. Gwozdecky: We need to have Royal Assent of the legislation before we would take definitive action. In the meantime, we’re preparing for the eventuality so that we can move quickly if Royal Assent is granted.
Senator Petitclerc: Mr. Gwozdecky, thank you very much for your presentation.
My question is about one of the topics the committee discussed, which is the possible violation of the United Nations Convention on the Rights of the Child. When the chair of the Canadian Coalition for the Rights of Children appeared before the committee, she stated that the fact that the limit is set at 30 grams for adults, as compared to 5 grams for young people of 12 to 17, places us in violation of the United Nations Convention on the Rights of the Child.
So my question is twofold. On the one hand, is this worrisome for our young people of 12 to 17? On the other hand, do we need to worry about the possible international repercussions on our relationships and reputation?
Alan Kessel, Assistant Deputy Minister, Legal Affairs and Legal Adviser, Global Affairs Canada: Thank you for that question, senator. From the perspective of our international obligations, the government is of the view that Bill C-45 does not impact on Canada’s ability to fulfil its obligations under the United Nations Convention on the Rights of the Child.
A core objective of the legislative framework is to protect young Canadians. The act will achieve this through several measures: restricting youth access to cannabis; advertising restrictions similar to those in place for tobacco products; restrictions on the promotion, sale, packaging and labelling of cannabis products that are considered appealing to youth; and creating new offences for adults who either sell cannabis to youth or use youth to commit cannabis-related offences.
I would point out that the Department of Justice is aware of the Foreign Affairs Committee’s report and its observations on this issue. It would probably be useful to talk to the department to determine its approach on the particular question as well.
Senator Seidman: Once again, thank you to the various departments for their presence here to try to help us understand these reports. The Foreign Affairs Committee heard testimony, including from the minister as you alluded to, that when Bill C-45 becomes law the Government of Canada would be in violation of three international drug control treaties.
There was testimony at the committee to the effect that violation of international law really isn’t a trivial matter. As a country we probably can’t pick and choose which international treaties to follow without encouraging other countries to do the same.
What action is the government taking to mitigate the violations? What are the implications on Canada’s global credibility with regard to these violations?
Mr. Gwozdecky: Canada is and will remain a committed international partner in the fight against illicit drug trafficking and in promoting evidence-based solutions to mitigate the harms of problematic substance abuse.
The international community has consistently indicated that they value Canada’s contributions to addressing this world drug problem. As the minister stated in her appearance, after our legislation was proposed Canada was re-elected to the Commission on Narcotic Drugs in a contested election where we received the second highest number of votes. This and other indications suggest to us that Canada is recognized as an important player and that countries want Canada to remain inside this framework. In fact, many countries have asked us explicitly not to depart from this framework but indeed to remain inside it.
Senator Seidman: I appreciate what you are saying. We do have a certain standing internationally, but is Canada considering some kind of action in relation to the violations? Are you undertaking anything? Are you planning anything in the future?
Mr. Gwozdecky: As I mentioned in my statement, the international community focused on the international drug problem recognizes that there is a need for flexibility for countries to adapt their policies and approaches to fit their own needs.
Indeed, prior to Canada’s new policy on this aspect a number of other countries have taken decisions to either decriminalize marijuana or to fully legalize it in some cases. We have seen in Uruguay, Bolivia, three European states and upward of 10 U.S. states, a movement in this direction.
There is a recognition that countries can take different approaches. Indeed, that’s why I mentioned that Canada’s approach is not meant to be a one size fits all prescription for others but is something designed to address our reality where we have such high rates of youth cannabis use that we’re trying to get at.
I believe it’s fair to say that there’s recognition that countries can take different approaches inside this framework. We are reassured that others recognize that Canada is a major and a committed partner in terms of addressing the broader global narcotics problem which, as I mentioned, goes well beyond 100 different substances, cannabis being only one of them.
Senator Gold: My question is a follow-up to my colleague’s question. We’ve heard concerns about this issue. Would you comment on the experience, to the best of your knowledge, of the country of Uruguay which has legalized cannabis? I understand the Foreign Affairs Committee heard from John Walsh of the Washington Office of Latin America. He said that since legalizing cannabis Uruguay has not in fact become an international outcast. It has not suffered sanctions or has not been punished for its actions.
Did that experience, as well as the experience in some European and Latin American countries to at least decriminalize cannabis, inform your decision not to pursue explicit options vis-à-vis the treaty violations?
Mr. Gwozdecky: We certainly looked at the experience of a wide range of countries, including Uruguay, in terms of the actions they took or did not take. You are quite right that Uruguay chose not to take any treaty action. In that sense, similar to the approach Canada currently is planning to take, which is no treaty action, what is different in the case of Uruguay is that they did not recognize any contravention of any obligations in international drug conventions. We believe that we are and we are transparently acknowledging the fact that we will be in contravention of certain of those provisions.
As I say, a great many countries have taken different approaches. We don’t suggest that any one is a common approach. Individual countries have to find their own, unique prescriptions for the problems they face. In the case of Canada, the plan I have outlined is the one that we feel best suits the Canadian reality.
Senator Gold: Canada will be the first G7 country to legalize cannabis. There is a discernible shift around the world in terms of how governments are approaching cannabis. In your opinion, might Bill C-45 and your response to the treaties provide us as a country to play some leadership role internationally in having other countries reconsider how these treaties should be interpreted and applied, and more generally in terms of drug policy?
Mr. Gwozdecky: I would like to make two points. One is that our policy and approach is a Canadian-made policy for a Canadian reality. It is also fair to say that countries are very interested in what Canada is proposing to do. They are very curious about how we’re doing it. They will be exceptionally curious about how it is implemented and the effects that it has.
Undoubtedly others will be watching what happens in Canada and drawing lessons from those. Hopefully there will be more positive lessons than negative ones to draw upon.
Senator Munson: Maybe it is getting late in our hearings where we have to make decisions on Monday, or maybe it’s just Friday. I would like to see how you folks look at destination cannabis Canada from the perspective of an economic scale. There are those who probably think that Reefer Madness is about to take place in Canada. There are those who might think it is a great haven to come to Canada to smoke marijuana. There is a song, “I get high with a little help from my friends.” Canada can be a friend to many people. I am asking this in a serious way because there will be an economic factor.
Have Global Affairs done any studies on the benefits? Perhaps tens of thousands of people in the United States, Europe and around the world will see Canada as a destination to come and enjoy cannabis as they see fit. I know in health and education we’re responsible. We know what we’re doing and we will do our best, but there must be somebody at Foreign Affairs looking at the economic factors and statistics that might be of benefit economically to our country.
Mr. Gwozdecky: Let me say what you anticipated I would say, which is the motivation behind this legislation is indeed driven by the desire to improve the health and welfare of our citizens. That, first and foremost, is why we’re here today considering this legislation.
There may well be others who choose to travel to Canada for reasons that you’ve articulated. I am not aware that we’ve done any form of analysis about what impact that might have economically. I don’t think that would be a decisive issue one way or the other in terms of the approach we’re taking. If adult travellers to the country choose to partake in cannabis consumption lawfully along with Canadians, that would not be an issue.
I think I’ll turn to my colleague Mr. Costen, who also has additional information to offer.
Senator Munson: When you use the words “health and welfare,” does that mean trying to eliminate the black market so that those who enjoy cannabis at least know what they’re receiving has been tested and that those who smoke it, or whatever they do, will be doing it in a safer environment? Is that what you mean by “health and welfare?” Perhaps Mr. Costen can answer.
Mr. Costen: Yes, the vernacular we use is the public health approach. What do we mean by that? We mean some of the things you’ve just described. The Minister of Health often talks about the more common description. Mr. Blair does too. It’s fundamentally about making it harder for young people to get access to it, which by extension means we’d like to see and our objective is to see the rates of youth use decrease.
As my colleague just reflected, the policy imperative is not about revenue generation. You’re right, there is an objective to create a legal marketplace, but forecasting what the economic up or downside would be of tourist use of cannabis is not something that any of us have been asked to explore. It’s really, as was said, to figure out how to create a system that will prevent youth access and will minimize the harms associated with adult use, and then to monitor it very closely for domestic reasons and, frankly, because we understand there’s considerable interest globally. We owe it to ourselves and the world to measure this closely and understand its impact.
Senator Deacon: I am just digging a little deeper into this understanding and respecting that we are unique and there will be a national Canadian approach. We are certainly respectful of that.
Coming back to some of these pieces, looking at Canada as a G7 country and always looking at the environmental landscape of reputation and reputational risk, is this an opportunity that you started to talk about a bit for Canada becoming a drug reform policy leader?
The second part of that question is that we have touched on some of the other countries. I think Uruguay was talked about and a few others in one context. I am wondering, although we are making our approach unique to the needs of this country, if there are best practices that we are seeing or trends that we’re seeing from places like Uruguay, Portugal or other locations where marijuana has been legalized.
That first piece is looking at this as an opportunity for Canada to lead, and in that second piece what are some of the things, even though we’re looking at our own package, we’re learning from either next door in the States or in some of these other jurisdictions?
Mr. Gwozdecky: I’ll take a cut at the first part of your question and then I’ll ask Mr. Costen to add to it.
In terms of leadership, this legislation is being proposed because we believe it will have positive impacts on the health and welfare of Canadians. If that is proven to be true, others will take notice, may well draw lessons and may decide to see if it could be applicable in their domains, in which case there would be a leadership effect.
That’s not why we’re doing it. It would be good if others were able to draw positive lessons and to extend the benefits of this beyond our boundaries; but that’s not why we’re here.
Senator Deacon: As you’re looking at this and moving forward, are you trying to develop an accountability framework or a way to monitor what you’re looking for to make sure that in your area of expertise this number one goal of the health and safety of Canadians stays as our acute targeted goal and, as we move through this, we know we’re getting there? What does that mean? What are the things you might be doing by way of developing the accountability piece of monitoring?
Mr. Gwozdecky: I hope I understood your question correctly, senator. Let me say that Global Affairs is engaged in effectively an ongoing conversation with the world through our 170 missions around the world, and in particular on drug-related issues at the UN centre in Vienna where there are treaty bodies that have ongoing conversations.
In those conversations our representatives are sharing the Canadian experience regularly, helping to shape a global understanding and to shape international drug frameworks internationally. As we go forward and draw experience from what’s happening in Canada or what might happen in Canada, we’ll be sharing that information systematically with our partners, both bilaterally and multilaterally. Hopefully that will be received with great interest potentially by others wanting to know more, and they might see benefits in applying some of our lessons.
The Chair: Mr. Gwozdecky, I want to come back to your opening comments because there’s one statement you made toward the end that concerns me as perhaps being in contradiction of what was said by the previous panel, particularly Public Safety Canada and the Canada Border Services Agency. You said:
As is currently the case, possession or prior use of cannabis could result in denial of entry into the United States.
We were told previously that it wasn’t the primary question, but it could become a question if the person had the smell of cannabis on them. I suppose the same might be true also for alcohol. I don’t know. That it wouldn’t be a primary question was their understanding of how the policy would unfold. Could you comment on that?
Mr. Gwozdecky: I think you summarized the position very clearly.
I used the term “could result in a denial of entry,” but also I would agree from every indication we’ve received from our American counterparts that it would not be their primary focus. We have a responsibility to advise Canadians on the risks they face when they travel abroad. It would be the reality that there is a risk of denial of entry should they be in a situation of crossing a border where the line of questioning does go in this direction.
The U.S. authorities have the sovereign right to govern who enters their country, so we feel the only responsible thing to do is to advise Canadians that there is a risk, probably not to the vast majority of them but to some.
The Chair: That brings us to the end of this session and actually brings us back to our scheduled time frame, so we did make up time.
I thank all of you from Global Affairs Canada, and particularly the folks from Health Canada because they’ve been here for every last meeting, as have some of the other people from Department of Justice and the RCMP. Thank you all for your contributions.
Before you leave, committee members, I want to remind you that 4 p.m. today is the time we’ve requested to have any proposed amendments in. Remember that they should be run by the law clerk to make sure they’re in a format that would fit into clause by clause.
On Monday, we will be back at 1 p.m. with Minister Bill Blair. The point man on this file will be here, along with Health Canada again as we go through a final round with the main department that has responsibility for Bill C-45. That goes for an hour and half until 2:30. We break from 2:30 to 3:00, and at 3:00 we start clause by clause until it gets done.
I report on the matter in the Senate on Tuesday. I may also be speaking on Tuesday on the matter, depending on whether leave is given.
If you’re interested, we’ve had 16 meetings, 40 hours, 105-plus witnesses, 53 briefs, four pre-study reports, and all of the evidence from the other committees. Thank you for a lot of great work. See you Monday at 1 p.m.
(The committee adjourned.)