THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL
OTTAWA, Wednesday, December 2, 2009
The Standing Senate Committee on Legal and Constitutional
Affairs, to which was referred Bill C-15, An Act to amend the Controlled Drugs
and Substances Act and to make related and consequential amendments to other
Acts, met this day at 4 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
The Chair: Honourable senators, welcome to the Standing
Senate Committee on Legal and Constitutional Affairs.
We are continuing our study of Bill C-15, An Act to amend the
Controlled Drugs and Substances Act and to make related and consequential
amendments to other Acts.
Today we have the pleasure of having a panel of witnesses who
will be the last witnesses we will hear, apart from a few officials, in our
study of this bill, which I have to say has been pretty exhaustive.
We are pleased to have appearing today: from the BC
Compassion Club Society, Jeet-Kei Leung, Communications Coordinator; from the
Beyond Prohibition Foundation, Kirk Tousaw, Executive Director; from the
Vancouver Island Compassion Society, Philippe Lucas, Founder/Executive Director;
and from the Canadian AIDS Society, Lynne Belle-Isle, Programs Consultant,
Thank you for being with us. We are grateful that it has been
possible for you to appear on the same panel, although we appreciate that you
each speak for your individual organizations.
Mr. Tousaw, please proceed.
Kirk Tousaw, Executive Director, Beyond Prohibition
Foundation: Honourable senators, thank you for the invitation to testify. I
have read the transcripts of past proceedings. I speak on behalf of all
Canadians when I say that we appreciate the hard work of the committee on this
vital issue. All Canadians deserve the rigorous analysis that this body has
conducted on this legislation. I urge you to continue to apply that kind of
rigour to your deliberations, and to fulfill the traditional role of this house
as the body of sober second thought of our government and to reject the radical
and dangerous escalation of the war on drugs.
I am here on behalf of the Beyond Prohibition Foundation, a
fledgling non-profit organization dedicated to the repeal of cannabis
prohibition and its replacement with a system of regulated and taxed production
and distribution of cannabis to adult consumers. I am also here as a criminal
defence lawyer, practicing with Conroy & Company. I have practiced on both sides
of the Canada-U.S. border. I have experienced the mandatory minimum regime in
the United States at both the federal and state levels. You will not be
surprised to learn that despite 30 years of experience locking people up for
10-, 20-, 30- and even 50-year stretches, drugs are readily available, violence
is a daily feature of the prohibition markets and for every so-called "drug
dealer" put in prison, there are five ready to take over the now vacated
I am also here, perhaps most importantly, as a father. My
wife, Debbie, and I are parents of three young children — Kaya, aged nine years;
Cayden, aged five years; and Oaklen, aged three years. As parents, we share the
same hopes and dreams for our children as any other: to keep them safe; to
enable them to make good choices; and to build a society that maximizes their
opportunities while minimizing the dangers they face as they grow into their
full potential. I know with every fibre of my being that this legislation will
not help us achieve those goals. It will instead achieve precisely the opposite.
I do not propose to restate in detail what has already been
said to you on this issue. There is a laundry list of social harms that this
legislation will undoubtedly cause: the increased violence and death in the drug
markets, both of participants and innocent bystanders; the massive inflation of
our prison populations with attendant increases in violence, death, disease,
rape and recruitment into gangs; the massive overburdening of our criminal
justice system that is already creaking under the weight of drug prohibition;
the disproportionate impacts on youth and visible minorities and persons living
in areas not served by drug courts; and prosecutors unwilling to utilize the
overarching discretion vested in them by this legislation.
There is also a laundry list of things that will absolutely
not be achieved by this legislation. There will be no decline in drug demand; no
decline in drug availability; no decline in drug purity; no increase in drug
prices; no reduction in the scope and power of organized crime and, indeed, a
likely increase in that power; no deterrent effect; no increase in the length of
sentences handed out to high level drug trafficker and importers, the purported
targets of this legislation; and no increase in public safety.
You have undoubtedly listened carefully to the testimony of
the witnesses who have gone before me and you already know these things. You
have heard the police say this bill will not affect how the police prioritize
their limited resources and perform their difficult jobs. You have heard senior
Crown counsel talk about their retention problems and how this bill will cause
havoc with their ability to do their jobs. You have heard Americans discuss the
failures and harms of their system, which we now propose to create a pale
I cannot add to that testimony. Therefore, I want to tell two
stories about two people, because ultimately this bill will affect people: sons
and daughter, mothers and fathers; Canadian people. When discussing crime, it is
far too easy to forget we are talking about human beings. It is far too easy for
politicians pushing fear to justify a so-called "tough on crime" agenda; to
demonize drug users and sellers, painting them as some type of "other," outside
the bounds of society; and to call them "pushers" or "junkies," and use language
to objectify and dehumanize these mothers, fathers, brothers, sons, sisters and
The reality is more complex. Some of the highest-level
organized criminals are violent, dangerous and are wedded to criminality.
However, they will not be affected by this legislation in the slightest, except
perhaps if this legislation has the effect of clearing out their competition, in
which case, these traffickers will be emboldened and empowered.
In Michigan, early in my career, I was involved in a case of
cocaine trafficking. The defendants, a brother and sister, lived in California
and were alleged to have mailed over five kilograms of cocaine from California
to Michigan, an amount of cocaine that would probably fit on one of these
The brother was alleged to be the mastermind and the sister a
"mule" who, on one occasion, dropped off the cocaine at a post office in
California. There was significant evidence against the sister but little against
the brother. They were extradited from California to Michigan because, in
California, the crime carries a potential five-year prison term. The police and
prosecutors felt that facing Michigan's 20-year, no-possibility-of-parole
mandatory minimum sentence might loosen the tongues of the accused, and have
them roll over on their suppliers in the Mexican cartels.
That did not happen, primarily because doing so would have
led to retaliation against their family members, who would most likely have been
killed. The sister was convicted and the brother acquitted. She was a mother.
She was sentenced to 20 years. That was 10 years ago. She has 10 more years in
prison to go.
Her child was deprived of a mother with all the pitfalls that
deprivation carries, and for what? The amount of cocaine she was incarcerated
for is literally a drop in a proverbial ocean that flows around Michigan, the
United States, Canada and around the world, almost wholly unabated.
More recently here in Canada, I represented a man named Mat
Beren. He was found in 2005 growing 1,000 cannabis plants for distribution to
the then-400 members of the Vancouver Island Compassion Society, VICS, and for
research ongoing at that society. The production occurred in an outbuilding on
rural, rented property with the full knowledge of the property owner. Mr. Beren
was paid a nominal salary for his labour. It was far less than he could have
earned working in the non-medical cannabis industry. All the members of the
Vancouver Island Compassion Society have physician support for their medicinal
cannabis use, but few, both then and now, have been able to navigate the federal
government's tortured and restrictive exemption scheme.
Mr. Beren challenged the validity of the scheme as it relates
to medical marijuana, and after a lengthy trial, we were partially successful in
having portions of the Marijuana Medical Access Regulations, MMAR, ruled
However, because his conduct was ultimately illegal, he was
convicted of production and possession for the purpose of trafficking in
marijuana. The decision is currently before the Supreme Court of Canada on
cross-applications for leave.
The trial judge, Justice Koenigsberg, a 16-year veteran of
the high court bench, having heard literally weeks of evidence about Mr. Beren,
about the VICS and the motivation for conduct — the circumstances of the offence
and of the offender — granted Mr. Baron an absolute discharge.
She called the case, in her reasons of sentence, one of the
clearest cases for that sentence she had ever seen. Under this legislation
before you, Mr. Baron would be in prison today and would have been sentenced to
a mandatory term of three years for providing organic medicine to critically and
chronically ill Canadians.
I find that situation to be reprehensible; I think it is
wrong. When I hear the Minister of Justice, as he did, tell this committee that
this law will not affect medical marijuana users or caregivers, he is wrong.
When he says this legislation is crafted to target high-level sellers and
importers, he is wrong about that, too.
This legislation is a massive step in the wrong direction. It
will produce tragic consequences. Like the war on drugs it represents and
escalates, it is scientifically invalid, empirically ineffective and morally
bankrupt. Those who support the bill, vote for it and allow it to become the law
of this great land will have blood on their hands and should feel shame in their
Jeet-Kei Leung, Communications Coordinator, BC Compassion
Club Society: Honourable senators, thank you for this opportunity to speak
to you directly. I am the Communications Coordinator for the BC Compassion Club
Society. We are the non-profit organization that has operated Canada's oldest
and largest medicinal cannabis dispensary since 1977.
In the past 12 years, we have served over 5,500 members with
serious or terminal illnesses. I will also mention quickly that, since our
second year, we have operated an adjoining wellness centre, and that part of our
non-profit model has been to use the revenue from Canada sales to create
accessible and affordable natural health care for our members. Last year, we
subsidized over 89 per cent of the actual cost of providing over 2,500
treatments in our wellness centre, in seven modalities, including acupuncture,
clinical counseling and holistic nutrition.
We, our members, and many others are greatly concerned and
alarmed about the impacts Bill C-15 will have on medicinal marijuana patients
and the cultivators who supply them through compassion clubs. Earlier testimony
in this committee's proceedings suggests that, indeed, cultivators of compassion
clubs will be subject to Bill C-15's mandatory sentences.
To quote the Senior Counsel for the Criminal Law Policy
Section of the Department of Justice Canada, Paul Saint-Denis, when given the
specific example of a cultivator caught growing 600 plants for a compassion
club: "It is a matter of illegal production. Already, the law is being broken."
Our existence predates the federal government's program by
almost five years. We are proud to have established and developed collectively
the services, standards and procedures that other compassion clubs, including
some in the United States, have modeled themselves on. In fact, we feel the
quality of the medicine we provide and the support and services around this
provision greatly exceed those of the federal program.
Therefore, I want to take this opportunity to give the
honourable senators of this committee a little window into how cultivation
happens in the compassion club context and how this cultivation translates into
a safe, high-quality supply of medicinal marijuana for our 5,000 members.
We have 24 cultivators on contract that sign an agreement to
provide exclusively to us. This part of our due diligence process helps us
ensure there are no connections to organized crime. These cultivators agree to
possible site inspection. To ensure affordable medicine to our members, our
cultivators agree to prices below market value. Each strain we carry is
lab-tested bi-annually for microbiological contaminants to ensure safety for
those with compromised immune systems. Seventy per cent of our strains are
organically grown, which is a more expensive growing method, with a smaller
yield than chemical processes. Even those processes that are not fully organic
use only natural predators and natural pesticides.
One-third of our cultivators have 10 years or more of
experience in growing cannabis. Our most senior cultivator has 30 years of
experience. The issue of expertise relates to the important issue of strain
diversity, of which Health Canada's program has none.
While tetrahydrocannabinol, THC, is acknowledged to be the
most active ingredient in cannabis, THC on its own has many uncomfortable side
effects, and it is clear that the ratios of the other cannabinoids, as well as
other constituents of the plants, such as the terpenes and flavonoids, play an
important role in modulating therapeutic function and efficacy.
Each strain presents a different formulation of the
cannabinoid ratios that allows us to predict its general therapeutic effects and
thus meet the range of symptoms and needs of our membership.
Our cultivators provide our members with choice among
approximately 80 strains in total. Many cultivators became breeders in order to
keep a particular strain strong and have been keeping unique strains alive. When
we lose the cultivator of a strain, we risk losing the very strain genetics that
they are the keepers of.
What are the impacts of losing a cultivator? I will use an
actual example from several years ago. For the sake of the example, I will call
this cultivator Jim. When one of our most experienced cultivators had his
facility shut down, Jim was producing what we would call research-quality
product, which is 100 per cent organic. He had mastered the use of natural
predators and perfected a microbiological tea for powdery mildew, the number one
bane of most cultivators.
Jim was also one of our most compassionate cultivators. He
supplied eight to ten pounds of medicine to us every two months in over eight
strains at $500 to $600 below market value per pound. This supply permitted us
to provide this research-grade medicine to our members at $7 a gram. Jim himself
was disabled and had been using his proceeds to fund a camp for disabled
children. Jim is not alone in being motivated by knowing that he was helping the
sick and ill. Many of our growers make donations of medicine, time and money
well above and beyond what our contract calls for.
After he was busted, he stopped producing. He was afraid of
going to prison. He was in his 50s, and he was afraid of losing his land. At the
time, he was supplying over 50 per cent of our indicas, the family of cannabis
which has great medicinal and therapeutic value. That loss was transferred and
felt by many patients for a long time until we could replace his contributions.
Jim's situation happened four years ago, well before talk of
mandatory minimums for cannabis cultivation. There is plenty of talk now,
however, and a real fear among our cultivators about how they will be impacted
by this bill. Several of them have told us that they are thinking about getting
out of supplying for us. These are people with families, afraid of going to
prison. Many are property owners afraid of losing their homes.
We are deeply concerned that the loss of judicial discretion
in the cases of compassion club cultivators will result not only in the
traumatization of decent, compassionate people but will have the subsequent
devastating effects for the thousands of members who rely on them for their
supply of medicinal cannabis that is an essential or valuable part of their
Mandatory prison sentences for cannabis cultivation will
seriously undermine the work of compassion clubs, which at this time we believe
to be largely accepted and acknowledged by society as providing a valuable
service. A Maclean's nation-wide poll in 20026 found that 92 per cent of
Canadians approved of the medicinal use of marijuana.
While the pictures we have of compassion clubs are typically
related to the marijuana itself, what is often easily overlooked are the
value-added services we provide to the community. These services come in the
form of advocacy and support in accessing social services, redistributing
donations from many different sources, and free events through the year that
contribute to the sense of community and place among our members. As well, we
provide mental health services through counseling and the wellness centre, and
also palliative care in caring for the many patients with terminal illnesses who
I have been proud to serve the B.C. Compassion Club Society
for the past seven years. Before I joined our communications department, I
worked in front-line distribution for five years. During that time, I came to
know many hundreds of members personally, and many of them shared their stories
with me. Illness and disease strike across all social boundaries and all walks
of life. In the struggle to survive and live with dignity, something heroic is
called out of what seem like otherwise normal, average people. The number of
people who have told me directly how cannabis was a key ingredient in their
survival and their recovery is truly astounding. Many members shared stories
about how they were able to use cannabis to reduce or wean from their use of
prescription medications, which they had found much more powerfully addictive,
with harmful side effects. Over and over, people told me about the difference
cannabis made in their lives, in their ability to live with dignity.
Now, since we started to campaign publicly against the
dangers of this bill, we have spoken to many members as well as to the public.
Almost unanimously, they have urged us to speak out. I have here a petition we
initiated in the past three months. I submit it to this committee in the hopes
that you will read it and hear the concerns expressed and shared by all who have
signed it. It is all our hope that the senators of this committee can play an
important role in averting some of the tragic consequences for the most
vulnerable that will be a consequence of the inclusion of mandatory prison
sentences for cannabis cultivation.
Thank you for your attention and concern for this matter.
The Chair: Thank you, Mr. Leung. I am receiving
procedural advice on whether a committee is allowed to receive a petition.
Pending the conclusion of that advice, on the assumption for now that we are
allowed to receive the petition, I will ask you to file it with the clerk at the
end of this proceeding.
Senator Nolin: One of us will table the petition in the
Senate in your name.
Mr. Leung: We would be grateful.
Philippe Lucas, Founder/Executive Director, Vancouver Island
Compassion Society: Honourable senators, clerks, members of the public,
hello. I am Philippe Lucas, and the founder of the Vancouver Island Compassion
Society. I am a graduate research fellow with the Centre for Addictions Research
of British Columbia and a Victoria city counsellor. I am also one of about 4,000
Canadians authorized by the federal government to use cannabis for medical
My use of medical cannabis began in 1995 when I was diagnosed
with hepatitis C. It turns out that, as a result of an operation in Ottawa in
1982, I had become a victim of Canada's tainted blood supply. Medical cannabis
alleviates the nausea, loss of appetite and localized pain that often accompany
hepatitis C. However, finding a safe and consistent supply has been a challenge
for so many Canadians, so in 1999, I left a career in education as a high school
teacher to open the Vancouver Island Compassion Society, VICS, a non-profit
medical cannabis research, distribution and advocacy centre located in Victoria,
About 14 months after the VICS first opened its doors, we
suffered a police raid, and I was charged with three counts of trafficking for
the distribution of cannabis. Although the VICS reopened within 10 days, I spent
the next two years in court fighting for my freedom and for the rights of sick
and suffering Canadians. After hearing how the VICS has positively impacted the
lives of its members, Provincial Judge Higginbotham granted me an absolute
discharge, praising the work that was being done at the organization, saying:
Mr. Lucas enhanced other peoples' lives at minimal or
no risk to society, although he did it outside any legal framework. He
provided that which the Government was unable to provide a safe and high
quality supply of marijuana to those needing it for medicinal purposes.
Since that happy day in the summer of 2002, the VICs has gone
from a small dispensary on the western edge of Canada to an internationally
recognized research centre that has become the template for responsible and
effective patient-centred medical cannabis access around the world. In that
regard, I have had a chance to advise a number of U.S. states on their medical
marijuana program, and 18 months ago I was invited by the Ministry of Health of
Israel to help them with their burgeoning medical cannabis program.
I share this story with you today to reflect that, had this
bill that you are currently considering been in effect at the time of my arrest
in 2000, all the wisdom and deliberation of Judge Higginbotham would have been
for naught, and his words of praise ultimately would have meant very little, for
he would have had no choice but to sentence me to a mandatory two-year prison
term. This prison term would have affected my life and the lives of the thousand
members of VICS in innumerous ways. It would have robbed my wife and I of our
wedding in the summer of 2002 and of the subsequent birth of my daughter Sophie
last year. It would have impacted negatively my ability to pursue my master's
degree at the University of Victory, and it likely would have prevented my
election to Victoria City Council in 2008, where my focus has been on harm
reduction and ending homelessness. None of this events would have been possible
under Bill C-15.
According to the Canadian addiction survey conducted by the
Canadian Centre on Substance Abuse in 2004, over 1 million Canadians use
cannabis for medical purposes, and yet just over 4,000 are currently protected
from arrest and prosecution through Health Canada's marijuana medical access
regulations, a federal program that has been found unconstitutional five times
in as many years for overly restricting legal access to medical cannabis. When
coupled with an ever-increasing national arrest rate for cannabis-related
offences and the mandatory minimums proposed in Bill C-15, we have a recipe for
disaster that could impact tens of thousands of Canadian patients.
In an effort to control the cost and quality of their
medicine, many of Canada's medical cannabis users currently produce their
cannabis for, or share it with, fellow patients.
National cannabis enforcement efforts cast a wide net and
will inevitably ensnare cancer patients, people living with HIV/AIDS, hepatitis
C sufferers, and those affected by multiple schlerosis, epilepsy and chronic
pain that benefit from the use of cannabis, as well as the employees of
compassion societies risking so much to help them. As a result of mandatory
minimum sentences, judges will be powerless to prevent the incarceration of
critically and chronically ill Canadians who use cannabis to relieve their
In regard to diversion to drug courts, I ask this committee
to consider how a person suffering from cancer or HIV/AIDS who uses medical
cannabis to relieve the symptoms of their condition or the side effects of
treatment can possibly benefit by being diverted into a drug court program that
specifically prohibits and subsequently punishes the use of this medication
through incarceration. Perhaps more pressingly, how does our society as a whole
benefit from a perhaps unanticipated but ultimately unavoidable persecution of
critically and chronically ill Canadians?
I have often heard the Justice Minister defend this bill by
suggesting that Canadians are supportive of laws addressing drug-related crime.
However, the members of this committee will do well to remember that for the
last 10 years, every national opinion poll conducted on medical cannabis shows
that over 80 per cent of Canadians support medical access to cannabis. That is
true across all provinces and party lines.
Although I have no doubt that Canadians wish to see a
reduction in problematic substance use and associated crime, they deserve
policies that will achieve this goal, and inexpensive and ineffective strategies
that have been proven to increase judicial and incarceration costs, as well as
the transmission of HIV/AIDS and hepatitis C with no associative reduction of
drug-related crime, violence or addiction. In matters of such huge importance to
both public health and public safety, it is imperative that we allow evidence to
trump both ideology and public opinion, and in regard to mandatory minimums, the
evidence is abundantly clear; they simply do not work. Extensive research
conducted on mandatory minimum sentences throughout the world shows that Bill
C-15 will not reduce substance use, will not reduce crime and violence, and
simply will not make Canadians any safer.
In fact, Bill C-15 will debase every segment of society it
touches, from the police officers saddled with the difficult job of enforcing
these ineffective laws, to the judges forced to incarcerate otherwise
law-abiding citizens and to imprison critically and chronically ill Canadians
and those working so hard to help them.
Ladies and gentlemen of this committee, I assure you that
there is no single bill you will consider during your term in office that has a
greater potential to squander taxpayer funds needlessly, to lead to violations
of both human rights and civil liberties, and to increase the spread of
transmissible disease and unnecessary suffering than the bill before us today.
On behalf of critically and chronically ill Canadians and
those who love them, I am here today to appeal to your logic, to ask for your
compassion, and to urge you to please stop Bill C-15.
Thank you very much for your time and attention, and for your
work on this important matter. I look forward to your questions.
Lynne Belle-Isle, Program Consultant, National Programs,
Canadian AIDS Society: Good afternoon, and thank you for the opportunity to
I will speak in English. I only wanted to make my point.
Thank you for the opportunity to address you today.
The Chair: You can speak in the language of your choice.
Ms. Belle-Isle: That is okay. I speak for the Canadian
AIDS Society, and on behalf of a coalition of more than 120 HIV/AIDS
community-based organizations in Canada and, probably more important, I provide
a voice for the 58,000 people living with HIV in Canada and those at risk.
I am trained as an epidemiologist; thus my interest in the
HIV pandemic. I currently work as a program consultant, mainly on policy
development, capacity-building with our member organizations and, more relevant
for the purposes today, I conduct community-based research.
A few years ago, as part of a research project, I travelled
across Canada to speak to people living with HIV/AIDS who use cannabis for
medical purposes. We wanted to know what their knowledge was of the federal
program that exists that makes it legal for them to possess cannabis for medical
purposes. We wanted to know what the barriers were to access to both the federal
program and to a source of cannabis for their medical use, because we had heard
from them that there were difficulties in accessing both those things.
Basically, people living with HIV/AIDS use cannabis mainly to
stimulate their appetite and to maintain a healthy weight, which helps their
survival; to reduce the nausea and vomiting; to help them take their medication;
and also to reduce the pain, mostly neuropathic pain, specific to HIV, which is
difficult to treat with standard pain medications.
Current studies in North America show that about 14 per cent
to 37 per cent of people living with HIV use cannabis for medical purposes to
alleviate their symptoms. If you take a half point of those people, let us say
25 per cent as an estimate, that number would amount to 14,500 people living
with HIV in Canada who currently use cannabis. That is an estimate. As Mr. Lucas
reported, 4 per cent of respondents in the Canadian addictions survey indicated
that they use cannabis for medical purposes. When we extrapolate that number to
the Canadian population, it amounts to slightly over 1 million people.
Our federal program currently has just over 4,000 authorized
people. We have major concerns about the Canadians who experience barriers to
legally accessing cannabis for medical purposes, and the impact of this bill on
those people. In my study published in the AIDS Care journal in 2007,
only 26 per cent of people who reported using cannabis for medical purposes —
these are people living with HIV — had managed to obtain a legal authorization
from the government. This difficulty is despite the fact that the Canadian AIDS
Society has been active in providing and disseminating information about the
program. We have produced a series of fact sheets that include a step-by-step
procedure on not only how to apply to the program but how to discuss this matter
with their physician. We have given workshops to frontline workers in community
organizations across the country to ensure that they are able to assist the
people they serve with the application process. This difficulty is despite the
fact that HIV is one of the accepted medical conditions included in Schedule 1
of the marijuana medical access regulations for which Health Canada's expert
advisory committee found there was sufficient evidence to support its medical
use; and this difficulty is also despite the fact that for physicians who care
for people with HIV, the majority of them support the use of cannabis to
alleviate their symptoms. However, they are still reluctant to sign the
With these factors in mind, I have concerns about the impact
of the proposed bill, Bill C-15, and the impact it will have on the people who
use cannabis for medical purposes who are having difficulty obtaining legal
access through these barriers.
My study also shows that the average person living with HIV
uses about 66 grams per month of cannabis for their medical purposes. That
amount is just over two ounces, basically over two big baggies full. If a person
were caught with that much cannabis on their person, I suspect they would be
suspected of trafficking. I am concerned about the legal repercussions that
would accompany that suspician. Mostly, I am concerned about the people living
with HIV who are producing cannabis for their medical purposes. Again, my
studies show that about 16 per cent of the respondents were producing cannabis
for their own medical use, and about half of them had managed to obtain a
licence to produce it legally. The other half had not. Under Bill C-5, these
people would likely face a jail sentence, which concerns me.
Even when people have a licence to produce, there have been
encounters with law enforcement. I sat on Health Canada's stakeholder advisory
committee on medical marijuana while the marijuana access regulations were being
amended. We were providing input into that process. We worked collectively; we
worked hard to set up safeguards to protect people, especially people who had
obtained their legal authorization, such as the creation of the photo
identification cards and the creation of a 24-hour phone line that Health Canada
offers for the police officers to verify the validity of a licence. Despite
these safeguards in place, I still personally receive phone calls from people
who had their equipment confiscated and their cannabis plants destroyed, even if
they had a permit.
In the case of one gentleman in particular, who was quite
distraught, his permit had run out two days previously. He was waiting for his
renewal. He had a licence for five years; he was very ill.
The police came and he could not produce a valid permit
because it had expired two days prior. They could not contact Health Canada, for
whatever reason. He was handcuffed in front of his family for three hours
waiting for contact.
They could not reach Health Canada. They confiscated his
equipment and his cannabis, and destroyed his plants. It took months to settle.
He finally had his equipment returned, but obviously not his plants. He had to
start from scratch, and it placed a great strain on his health and his family.
With those situations in mind, I fail to see how Bill C-15
will provide protection to people with licences to produce. I suspect such
unfortunate incidents will only increase.
Finally, stepping back from cannabis, I look at the bigger
picture. Bill C-15 will place more people in jail for drug-related offences in
general — people who are most likely to have a problem with substance abuse to
begin with. We are talking mainly about the most marginalized people — people
living in poverty with unstable housing or homelessness, people with mental
health issues and other such social issues.
We can put our heads in the sand and pretend there is no drug
use in prison, but we all know that is not the case. Unfortunately, most of the
drug use in prisons relates to injection use because it is a quicker method of
delivering a drug. It is easier to hide; it metabolizes through the system
quicker and is thus less detectable on drug tests.
Unfortunately, as you hopefully know, people in prison do not
have access to needle exchange programs. People tell me — and I conducted
another study where I held focus groups across Canada, speaking to people who
use drugs or have used drugs — that they had to steal needles from the health
services, which they shared with their fellow inmates; or they improvised and
made their own devices to inject themselves.
As a result of these circumstances in prison, there is 7 to
10 times more HIV/AIDS in federal prisons, and 30 times more hepatitis C than in
the general population. You may think these circumstances in prisons do not
affect the general community, but these people come back into the community,
clearly. I do not have to tell you about the issue that HIV is, worldwide.
When people who have been in prisons come back into our
communities, there are limited services to assist them in reintegrating into the
community or in dealing with their substance abuse issues. They, therefore,
resort to the life they knew before they were incarcerated.
When I held focus groups across Canada for another project,
we wanted specifically to ask them about how harm reduction services, such as
needle exchange programs, work for them — what works well, what does not. Do you
know what the main thing was that they wanted to talk to me about? It was not
about access to clean needles; it was about access to treatment.
It debunks the myth that people who use substances or who are
struggling with substance abuse do not want access to treatment. They do.
However, they do not want to be forced into treatment, and they want to be in a
treatment that provides an environment that is conducive to their health and
With that said, I believe Bill C-15 is a step in the wrong
direction. I urge you to consider carefully the consequences of this bill and,
hopefully, do what you can to stop it. I thank you for your time.
The Chair: Thank you very much, all of you.
We will move on to questions. Sen. Nolin, I
know you have several questions.
Senator Nolin: I am prepared to go to the second round,
but first, I would like to ask Ms. Belle-Isle for a clarification.
Ms. Belle-Isle, you worked at Health Canada from 1994 to
2002. For my colleagues' benefit, because the Government of Canada was supposed
to make the medical marijuana regulations, were you involved in the process for
making those regulations?
Ms. Belle-Isle: No, not at all.
Senator Nolin: Now, real questions; I want to talk about
users and members — the membership of both of your societies — and then we will
go into other questions.
First, because many Canadians who are watching us are
probably saying: They are kidding; they are not real; what kind of members are
they; and are they there for real reasons or are they disguised and there for
Can both of you tell us how the memberships of your
organizations are selected or accepted? I heard one of you talking about medical
documentation. Can you explain to the committee how that documentation works?
Mr. Lucas: Absolutely; Last month, the Vancouver Island
Compassion Society registered its one thousandth member. Over 10 years, all our
members have a doctor's recommendation specifically for the use of cannabis. In
other words, they all have their doctors' support for the use of medical
marijuana. They also go through an extensive registration period with us.
During that registration, during the 35 minutes or 40 minutes
that we spend with them initially, we teach them about the different types, the
different strains that Mr. Leung alluded to, together with the different methods
of injection. Many of the members do not smoke cannabis: they eat it; they take
it through oil or other methods of ingestion.
It is worth mentioning that out of the 1,000 members we have
at the Vancouver Island Compassion Society, we have doctors' recommendations
from well over 350 local doctors. The medical community has been supportive of
sending people to our quasi-legal organization.
On the other hand, and strangely enough, only a handful of
those 1,000 members have the legal right to use cannabis through Health Canada.
In other words, these same doctors that feel comfortable sending people to our
dispensaries are not nearly as comfortable filling out the Health Canada
paperwork. I think that reluctance is for reasons of bureaucracy; because of the
stigma associated with being a doctor recommending medical cannabis; and a
number of other reasons. Our members have the equivalent of what they would have
as a prescription for any other substance they might use for their condition.
Senator Nolin: Is the situation similar in Vancouver?
Mr. Leung: Yes, we have a registration process similar to
the Victoria club's. I can share statistics for the demographics of the
membership we serve.
Senator Nolin: These statistics are if you are refusing
Mr. Leung: Members need their health care practitioner to
fill out their application form and to submit it. Again, of our own membership,
less than 4 per cent hold federal licences. Yet of the membership we serve,
almost 20 per cent are people living with HIV/AIDS; 11.5 per cent of our members
are cancer patients; 12 per cent of our membership is dealing with hepatitis C
and hepatitis B; 10 per cent use cannabis for arthritis; and almost one quarter
of our membership uses cannabis to relieve chronic pain.
The largest demographic that we serve, 42 per cent of our
members, are aged 50 to 64, and a further 8 per cent are seniors 65 and up.
These are the individuals that Mr. Saint-Denis in his testimony claims cannot be
helped, and who will fall under the purview of this bill.
Senator Nolin: To enlighten the committee, if we compare
the strains and the offer that both of you are providing to your memberships,
how do you compare that offer with the offer of Health Canada? Is the cannabis
only one strain? Is it a variety of strains? Why are there Canadians who can
have access to legal marijuana not doing so, and instead, are going to one of
your two institutions?
Mr. Leung: Poor quality and lack of strain selection —
Senator Nolin: What do you mean by poor quality?
Mr. Leung: There has been consistent feedback about
Health Canada's product, which is supplied through Prairie Plant Systems,that it
is of a consistently poor quality. Everything is ground up together. There is no
removal of the buds from the stems and the leaf.
Senator Nolin: You mentioned 80 strains. How many strains
are there in the federal legal access systems?
Mr. Leung: I do not believe they offer —
Ms. Belle-Isle: One.
Mr. Lucas: Health Canada offers one single strain and one
method of ingestion. They send ground cannabis to people's homes with no
instructions on how to use it other than smoke it — the obvious reason.
At dispensaries like the British Columbia Compassion Club
Society and the Vancouver Island Compassion Society, we make an oral mucosal
spray available. People can use it sublingually. We make oils, tinctures and
edibles as well. We found at the Vancouver Island Compassion Society that people
over 65 years of age tend to tolerate edibles much better than smoked products.
These options are not available if they are part of the
Health Canada program. Additionally, we help people with end of life. In this
year alone, I have completed six bedside registrations of people dying in
hospice, in hospital or in their home. It can take 8 to 20 weeks for Health
Canada to process an application through their program. If they have been given
two months to live, as is often the case, it is physically impossible for those
people to use medical cannabis legally at the end of life. They simply cannot be
covered by our federal medical marijuana program.
I do not think this committee has been made aware of the
current situation where less than 20 per cent of people in the federal program
order their cannabis from Health Canada. Approximately half have the right to
produce their own and about 30 per cent access it knowingly through the black
market or compassion societies. Of the people who order their cannabis from
Health Canada, 1,400 of those 4,000 users in the program owe Health Canada for
that cannabis supply. They have either chosen not to pay for it or are not able
to pay for it. As a result, Health Canada is owed almost $1.5 million by federal
program cannabis users. Health Canada has cut off 636 people from accessing that
supply of cannabis, which is Canada's only legal supply of medical cannabis.
Those people are forced back onto the street, or they are forced to suffer
The Chair: How do your prices compare with Health
Mr. Lucas: Our prices range from $6 to $9 per gram for
cannabis. Health Canada's cannabis is approximately $5 per gram plus tax and
delivery. We do not charge tax on our supply.
The alternatives we supply — oils and tinctures — are made
in-house. They are also lower cost alternatives to smoked cannabis even through
the black market. A bottle of our oral mucosal spray, which contains 400 sprays,
might last a patient two weeks, and is about $10. The Vancouver Island
Compassion Society also gave away, as a non-profit, $10,000 worth of cannabis
last year. Each of our members is eligible for a donation each week. Many of our
low income users take advantage of that donation weekly.
The Chair: We have scheduled an unusually long time with
you, but it is not infinite.
Senator Nolin: That is I put myself down for the second
round of questions.
The Chair: We have to keep both our questions and our
Senator Campbell: I do not know why you are surprised.
This is a government that cannot produce nuclear isotopes. Why would you think
they can grow medical marijuana?
Does anyone know how many people are charged every year that
are suppliers to compassion societies?
Mr. Tousaw: I do not have a figure. However, my practice
is, by and large, defending persons accused of violating cannabis laws in this
country. A substantial portion of my practice is persons who produce marijuana
for others for medical purposes or for themselves for medical purposes, or they
possess it for medical purposes. Charges are not uncommon. I receive calls
weekly from people who have run into trouble with law enforcement either because
of their production or use or medical cannabis.
Mr. Lucas: I have published on and researched medical
marijuana in Canada extensively. There are about 15 well-established
dispensaries in Canada. About half of them have been a victim of some kind of
police enforcement. They have been charged with production or distribution of
Senator Campbell: In general, what are the results of
Mr. Tousaw: On behalf of my clients, I have had some
significant successes. I mentioned the case of Mr. Beren receiving an absolute
discharge for his production.
It is not uncommon currently for those charged to go to
court. Typically, they enter a guilty plea if they are a medical cannabis
producer for themselves or others. They submit the facts at sentencing hearings.
The hearings are an opportunity for the judge to view the circumstances of the
offence and the offender. It is common to receive either absolute or conditional
This legislation absolutely and completely takes that
judicial discretion off the table. The maximum penalty for production goes from
7 years to 14 years, making these offences no longer eligible for discharges.
That situation does not even take into account the impact of the mandatory
Mr. Lucas: No legitimate dispensary in Canada has ever
been successfully prosecuted. This situation will change completely under Bill
Senator Campbell: You had one person who was charged with
producing 1,000 plants.
Mr. Tousaw: Yes, that is correct. It was Mr. Beren.
Senator Campbell: That is a lot of plants.
I am trying to make sense of this situation. I think this
bill is stupid. Marijuana should not be in this bill. It is here simply because
we have not recognized that marijuana is a lot healthier than OxyContin or
Percocet, which are commonly used.
Mr. Tousaw: Or alcohol.
Senator Campbell: To be a successful grower, what is the
minimum number of plants they can grow to supply their client?
Mr. Tousaw: We have to put the situation in context. One
thousand plants sounds like a lot of plants. In reality, I represent people all
the time charged with growing more than 1,000 plants. That number is literally a
drop in the bucket in terms of the marijuana produced in this country. Remember
that Canadians alone consume between 6 million and 10 million grams of marijuana
every week in this country. We enjoy cannabis.
We also need to put into context that 400 people were
receiving Mr. Beren's cannabis. That number breaks down to approximately 2.5
plants per recipient. Economies of scale come into play. These plants were grown
in one outbuilding — not a large outbuilding — on a rural property. While one
thousand plants seems like a large number, it is not a big number at all in the
context of marijuana production.
Senator Campbell: Should we even put a number on it?
Mr. Tousaw: No; I think putting numbers on plants is
frankly an exercise in absurdity. We will end up spreading out the marketplace.
If non-medical people know that they will be subject to a three-year sentence
for growing 1,000 plants, or nine months for under 200 plants, they likely will
set up five locations and grow 199 plants in each. We will see a proliferation
in the number of marijuana production facilities throughout this country.
That result is exactly the opposite one that we all want to
achieve, which is to move these production facilities out of suburbs and
basements. Let us grow these plants where we grow all other plants; on farms and
in greenhouses. Then, we do not have to worry about the problems allegedly
associated with marijuana grow operations.
Mr. Lucas: Mr. Beren, at the time he was arrested, was
the sole producer for the Vancouver Island Compassion Society. He was the sole
supplier for 400 members. As a result of that raid, we now have six different
suppliers scattered throughout Vancouver Island and the Gulf Islands supplying
our membership. In other words, we have gone from an easily managed sole
production facility to six facilities, which is far more challenging to manage.
To put the situation — those two and a half plants per person — into context, as
a legal medical cannabis user in Canada, I am licensed to produce 49 plants for
myself. The 49 plants I am licensed to produce through Health Canada pales in
comparison to 2.5 plants that Mr. Beren was producing for our members.
Senator Campbell: I suggested to Sgt. Chuck Doucette,
when he appeared before the committee, that thirty plants is considered personal
use in British Columbia.
Mr. Tousaw: I think that number is a decent rule of
thumb. If this committee is to pass this legislation — and I urge it not to —
the best measure to take to protect medical marijuana users, providers and
distributers is to add an exemption taking medical marijuana not only out of
mandatory minimum sentences, but out of the Controlled Drugs and Substances Act,
CDSA, entirely. In that case, we can still have prohibition of marijuana to the
extent it is needed or wanted — I do not think it is needed or wanted. At least
we will not jail, arrest and incarcerate people who are growing and distributing
cannabis for compassionate purposes and to help people struggling with illness.
Senator Campbell: Would they have a licence?
Mr. Tousaw: The problem is that the government's medical
marijuana system is inaccessible. Of the medical marijuana users in this
country, 99.5 per cent are not protected by the government's regime.
Senator Campbell: However, they have a prescription from
their doctor, do they not?
Mr. Tousaw: Most do, yes.
Senator Campbell: There must be some rules.
Mr. Lucas: Thirteen states have legalized medical
cannabis use, including California, which has tens of thousands of dispensaries.
The State of Oregon has an affirmative defence program. That means that, if
someone is arrested for use, production or distribution of cannabis, the charges
are dropped, providing they can prove in court that it was for medical purposes.
Oregon also has a state-run medical marijuana program that is
an interesting comparison with our own. It started in 1999, is centrally run and
people need a doctor's recommendation to join the program and yet the program
has registered 20,000 people, with one-tenth the population of Canada, in the
same period of time that we have registered 4,000 people. I think the comparison
illustrates some of the problems with our own federal bureaucracy and program in
regards to medical cannabis. It also gives us an idea of what can and should
happen in our federal program.
Senator Joyal: Thank you for your testimony.
I listened carefully to Mr. Tousaw and Mr. Lucas. I was left
puzzled because you argue in your presentation that many of your customers, or
the people with whom you are in daily contact, will find themselves in prison if
this bill is passed and implemented.
However, the Commissioner of the Correctional Service of
Canada testified in front of us on November 19. In his presentation, and
afterwards, as well, he stated the following: "At this time we do not have any
data to assess whether there will be a direct impact on Correctional Service of
Canada's population levels."
We asked him questions. I personally asked him questions. I
said that was strange, because, this bill's impact is to put people in prison.
The gist of the bill is to impose mandatory minimums and there are sentences in
the bill that are longer than two years, as you saw. The bill should have an
His answers were elusive, to use a diplomatic word. He did
not want to commit himself to saying that the bill would have a financial impact
on the number of people in prison, and he was elusive as to the costs this bill
In our own experience and in view of his answers to us that
he cannot measure a significant increase in inmate populations after that bill
is implemented, what is your own answer to that conclusion from the
He is a responsible person. He is the head of the federal
penitentiaries of this country.
Mr. Tousaw: The point of the bill is to jail people, and
the point of the bill is to jail people for periods of time in excess of the
time in which they would receive provincial sentences; in other words, a
sentence over two years is a federal sentence.
It boggles the mind to think there will not be an impact on
the costs associated with the correctional system. We see from the experience of
the United States that their regime of mandatory minimum sentences have, in
effect, bankrupted their prison systems, while also leading to conditions of
incarceration that are, in my submission, inhumane and in violation of people's
Ms. Belle-Isle talked about there being seven times the rate
of HIV within prisons versus the general population, and thirty times the rate
of hepatitis C. There is violence in prisons. Prisons are recruiting grounds for
gangs. Prisons do not teach inmates how to reintegrate into society. Prisons
teach the opposite.
In my submission, we should be look for ways to keep people
out of prison, not to put them there. However, perhaps the suggestion that this
bill will not affect the budgets of the Correctional Service of Canada was not
the witness's intent. Perhaps it was to say that they do not have data.
Putting people in prison will, of course, cost money.
The Chair: In fairness to the commissioner, I think he
meant that he did not have hard data and was unwilling to hazard an informed
Mr. Tousaw: Much in the same way the Minister of Justice
did not have any hard data.
Senator Joyal: I will quote his answers. When he said he
had data, it was in reference to Bill C-25. He had that data but he did not want
to release it. However, on this bill, he did not have the answers. I remember
well the arguments I had with him. I said, "If you state this and, after two
years of review, we come with the figures, then your credibility will be at
I do not want to argue with the chair. That is not the
purpose. I am trying to understand the impact of this bill on the inmate
Mr. Lucas: When this bill was formerly called Bill C-26
and I had a chance to testify in front of the House of Commons on that bill —
the bill is largely unchanged, as you all know — the justice minister of British
Columbia at the time estimated the bill would lead to 700 more imprisonments per
year. The minister also estimated and made public comments that it might mean
the need to build extra prisons because our prisons are already overloaded.
Additionally, the minister had concerns this bill would
displace more violent criminals. In other words, we would put nonviolent drug
offenders in jail cells that might better serve more violent criminals. I have
no doubt this bill will have an impact, and that was the testimony of our
justice minister at the time; those were his public statements.
Senator Joyal: I have another question for Ms.
You testified about the number of inmates who might have
HIV/AIDS or hepatitis C. Do you have an exact number in the inmate population in
federal prisons right now? You mentioned a figure of about 20 per cent of
inmates who might be infected with HIV/AIDS. Can you be more precise about those
Ms. Belle-Isle: I don't think I referred to 20 per cent.
The figure I was given comes from the Correctional Service of Canada. They
report that in federal prisons there are seven to 10 times more HIV/AIDS cases
than in the general public and there are 30 times more hepatitis C cases. That
is really the only figure I have at this time. It comes from the federal
government, from Correctional Services.
Senator Joyal: Can a person with HIV/AIDS or hepatitis C
use marijuana in prison if their doctor prescribes it?
Ms. Belle-Isle: No, absolutely not, unfortunately, no.
There are cases where we have tried to defend the rights of people to be able to
do it in prison, but it was not approved. Instead they are given synthetic
products, THC pharmaceuticals, that people don't much like. As Jeet-Kei Leung
described earlier, when it is pure THC without the other cannabinoids the plant
contains, it produces unpleasant effects. You get more excited, more anxious. It
is nothing like the plant, when it is the whole plant. No, they may not smoke in
prison at all. So people have a tendency to use illegal substances, we're not
talking about medical cannabis, they use injection drugs instead because they
really can't smoke in prison, regardless of the substance.
Mr. Lucas: It isn't just the smoke. We are trying to
defend an inmate who could have used marijuana legally, and the cookies weren't
allowed in prison either. It isn't just smoking, you aren't entitled to
marijuana one way or another in prison.
Senator Joyal: And that has been challenged in the
Mr. Lucas: Absolutely. Mr. Conroy has argued one or two
cases on that.
Senator Joyal: How many help centres are there for people
authorized to use medical marijuana in Canada?
Ms. Belle-Isle: About 15.
Mr. Lucas: You're talking about compassion clubs?
Senator Joyal: Yes.
Mr. Lucas: There are about 15 established compassion
Mr. Lucas: In Vancouver, for example, there are three or
four, two in Victoria, at least two and probably three in Montreal, about three
in Toronto, but none are legal. All the work done is not regulated by Health
Canada or the federal or provincial governments.
Senator Joyal: Could they be prosecuted?
Mr. Lucas: Yes, absolutely. I was arrested for
distributing medical marijuana in my compassion club. Nearly half of these clubs
have had arrests by police.
Senator Joyal: In your assessment of this bill, you
conclude that if, as you said in one or your earlier answers, in prosecutions
against the clubs, no prosecution has been successful. You believe that if this
bill is passed as it stands, most of the clubs could be at risk of police
action, seizure and prosecution?
Mr. Lucas: The day after the bill is passed, if the
police show up, there would be a three-year minimum sentence for Mr. Leung and
his employees because a school has just opened a few blocks from their
establishment. The same would be true for my employees. The talk is of a
mandatory minimum sentence of two to three years . No judge could decide that
and that would be an end of it. When you realize that their club produces
marijuana for 5,000 people, our club produces it for 1,000 people, already there
are more people just in Victoria and Vancouver than in the entire Health Canada
program in Canada. That is a major impact.
Mr. Leung: It is true that we have been at our location
on Commercial Drive and 14th Avenue in Vancouver for 11 years, and a school
opened kitty-corner from us about four years ago, with whom we have a good
relationship. They have toured, and we have shown them around, and we have good
communication. We are concerned about what impact this bill will have on us with
this school across from us.
In addition, there is a related issue in terms of the
inclusion of clone cuttings into the count of plants because the cuttings are
not producing plants. They are not productive plants, but they are necessary to
sustaining the crop. If they are included in the count, then 80 per cent of our
cultivators will fall into the 200-plus plants category, and to the minimum
sentence of at least one year.
Senator Wallace: Mr. Tousaw, I have a short supplementary
question. Obviously, you have a lot of concern about the implications from the
point of view of compassion clubs. The federal Minister of Justice and
provincial Attorneys General have had many concerns about the drug trade, drug
production, drug trafficking, importation and exportation. As I understand it,
Bill C-15 is the result of many years of discussion and consultation between all
the provinces and the federal government. My understanding is that the ministers
of justice from the provincial governments support Bill C-15 and, in particular,
the Minister of Justice from British Columbia. Are you were aware of that
support. You had comments about the implications that the bill could have to the
administration of justice in British Columbia, but the minister seemed
supportive. Are you aware of that?
Mr. Tousaw: I am aware of that. I am also aware that you
had senior Crown counsel testifying about the effects on the ground in terms of
their workload, the backlog of cases, the length of trials, denial of bail and
reverse onus provisions. It is easy to understand why elected officials will
support this bill. One of the speakers from a group called Law Enforcement
Against Prohibition said the war on drugs is not winnable, but it is eminently
fundable, and it is something politicians love to run on.
The reality is that if these people looking at the evidence
are thinking people, they know that this bill will not affect the drug trade in
British Columbia, in Canada, or in the world. The bill simply will not affect
the drug trade. The evidence is not there in all the evidence that we have from
every other jurisdiction that has tried this legislation. The United States
legislation a lot stronger than the legislation we are planning, and yet there
is still a drug trade in the United States and lots of drugs on the streets. In
2008, the percentage of high school seniors in the United States who reported
they could obtain drugs fairly easily or very easily was astounding: 83.9 per
cent can obtain marijuana easily or very easily, 47 per cent, amphetamine, 42
per cent, cocaine, and 35 per cent, crack.
This program of interdiction, attempted supply reduction,
does not work. All the witnesses before you have said the only things that work
in terms of dealing with problematic substance use are treatment and prevention.
Yet, this government is willing to spend a lot of money prosecuting, policing
and locking people up.
I read the other day that another rehab centre in British
Columbia has been closed, this one serving the north of British Columbia. Teens
with substance abuse problems now have to travel hundreds of kilometres for
treatment. It is the wrong way to go, and anybody who looks at the evidence
The Chair: Senator Wallace, I will put you down for a
main round, if you wish, but we are on supplementary questions on Senator
Joyal's time. Senator Nolin has a supplementary question, and Senator Campbell
has a supplementary question.
Senator Campbell: Mine is not supplementary.
Mr. Lucas: Senator Wallace, I am an elected official. I
poll public opinion on a number of issues on a regular basis. It is important
and key that we poll people, but when it comes time to making key decisions on
legislation that will affect Canadians as significantly as this bill, we have to
look at the evidence base. The bill simply cannot be based on the opinions of
the justice ministers of relative provinces.
In regard to one of the questions posed by Senator Joyal
about statistics, we need to look at the evidence. We cannot be selective on the
statistics. We need to look at the totality of evidence. To truly make an
evidence-based decision on Bill C-15, you simply cannot support this bill; not
based on what you heard and know so far.
Senator Nolin: One of you referred to the maximum penalty
of 14 years, and how the bill would prevent your client, Mr. Beren, the sole
provider for Mr. Lucas' group, from an absolute discharge. Can you explain how
the bill will prevent that discharge?
Mr. Tousaw: The eligibility for discharge is under the
Criminal Code. Those charged can be disentitled to discharges based on the
maximum length of sentence.
Senator Nolin: Are you referring to section 730(1) of the
Mr. Tousaw: I think I probably am, although I have never
been good with numbers. I saw several people walking in with the heavy black
books, and I leave it to them. They are disentitled. If they are charged with
possession for the purpose of trafficking over three kilograms of marijuana, the
charge carries a 14-year maximum and they are not entitled to a conditional
discharge. If they are charged with production, the penalty is a seven-year
maximum and they are entitled to seek. Once we have mandatory minimum
sentencing, people are disentitled from discharges simply because of that
minimum. If this bill goes forward, I urge you to craft an exemption for medical
marijuana producers, distributors and patients, because otherwise the two
gentlemen to my left could be facing jail for a long time.
Senator Joyal: The bill also deals with trafficking and
importing. I understand why, because of your role, that you addressed mainly
production. Do you have any comments on the section on trafficking and
Mr. Tousaw: I do. The reality is that this bill will not
affect the sentencing for importing quantities of drugs into Canada. It will
simply not affect importing. The law is already there. Judges regularly hand
down lengthy terms in prison for importing drugs into Canada. I heard the
Minister of Justice talk about how this bill targets the high-level organized
criminals that use violence and prey on Canadian society by importing poison
into our country. I have heard that view ad nauseum. It takes about five minutes
to search a free database called CanLII to pull up reasons for sentencing on
importing cases to see clearly — R v. Canyon, 2009, Manitoba Court of
Queen's Bench 280, trafficking PPT, cocaine and ecstasy, 40 kilograms of
cocaine, 12 years; R. v. Marchesi, 2009, ABCA 304, trafficking PPT,
cocaine, seven grams of cocaine only, no criminal record, three years
incarceration; R. v. Lee, conspiracy, trafficking marijuana, 27 months in
prison; and R. v. Smith, cross-border trafficking, six years in the
penitentiary — there are not high level importers of drugs into this country
being sentenced to two slaps on the wrist. That does not happen. It is not
happening. This bill does not affect the sentences that will be handed out to
high-level drug dealers. It will catch only the low hanging fruit, the very
people we hear this bill is designed not to target.
Mr. Lucas: In fact, it will divert necessary resources
away from the importing and trafficking by adults to youth. These are the
concerns when Canadians talk about concerns around drugs and drug-related crime,
which I suggest are more prohibition-related crimes. The importing into Canada
and the trafficking of adults to youth is absolutely where we should direct our
police resources and absolutely what we should be concerned about, but
unfortunately that activity is not what will be targeted. We know that from our
current arrest rates in Canada where 50,000 cannabis users are charged with
personal possession every year. We know that from our police arrest statistics.
If we want to target that activity, then we need to change this bill
considerably so that it focuses on importing or trafficking of adults to kids.
Otherwise, it will draw away resources that are desperately needed, as you heard
from our police services right now, who are short of staff and resources.
We need to be able to direct those resources to the areas
that matter to Canadians, and those areas are the ones that matter.
Senator Milne: Ms. Belle-Isle, you said that doctors are
reluctant to sign medical use application forms. Why are they reluctant?
Ms. Belle-Isle: That is a good question. I can speak only
on what the people living with HIV have told me. I have not spoken directly to
physicians, except for the few who happen to be on the stakeholder advisory
committee with me.
From what people tell me, physicians are reluctant because
they are often concerned about liability. They do not feel they have enough
information on cannabis as a "drug" because it is not an approved drug. It is a
herbal medication of which they do not have much information.
They do not feel they are informed well enough to provide
advice on dosing, and on how to use cannabis. The discussion becomes one between
patient and doctor, based on the patient's experience using cannabis for medical
purposes and a decision between patient and doctor.
As Mr. Lucas pointed out, and people told me this while I was
conducting the focus groups, physicians seemed to be more likely to sign or
provide a letter of diagnosis, which is what it comes down to, to state a
symptom or a reason why a person might obtain benefit from the use of cannabis,
as opposed to prescribing cannabis, because they can prescribe only an approved
drug and cannabis is not one at the moment.
These issues are liability issues. Also, the Canadian Medical
Protective Association, which is the body that insures physicians, had taken a
strong stand against physicians participating in the program, and have designed
a kind of a waiver that alleviates the responsibility of the physician and
protects physicians from liability charges. The patient can take that waiver to
their physician asking that the physician be free of all responsibility and that
the patient take the responsibility for using cannabis as a medical treatment.
Senator Milne: Mr. Lucas, you say there are 400
physicians who are actively sending people to you?
Mr. Lucas: There are 350.
Senator Milne: They are not sending them to you with a
prescription but with a recommendation that cannabis may work.
Mr. Lucas: That is absolutely right. We have to go back
to the dawn of this program. When Health Canada established this program, the
Canadian Medical Association, provincial medical organizations like the British
Columbia College of Physicians and Surgeons of British Columbia and the Canadian
Medical Protective Asociation, which insures 95 per cent of doctors in Canada,
all made strong statements against being the so-called gatekeepers of this
program. They continue in policy statements to state that they do not want to be
the gatekeepers of this program. They do not see that role as appropriate for
them. Unfortunately, there is no other obvious group to take responsibility for
that approach. We know that cannabis is a medicine. The medical community has to
take some responsibility for the program, but because it has not gone through
the checks and balances of other traditional pharmaceuticals, there is concern
about that situation.
My gastroenterologist filled out my form — I am a legal
user — as did my general practitioner. He has been clear. He said, Do not tell
anyone I have filled out your form; I am not filling out any other forms; I am
not comfortable with the process.
I think the 33-page application, and the yearly renewal that
has to be done after that, creates a level of discomfort amongst physicians
because this treatment is dissimilar to every other drug prescription process
they go through. Doctors have never been polled specifically about why they will
not fill out those forms, but it is clear that many of them will not.
Mr. Tousaw: The waiver form that Ms. Belle-Isle indicated
that was put out by the CMPA for the benefit of our Quebec physicians is
ineffective in Quebec because under the Quebec code, they cannot pre-release
Senator Milne: So it is only a piece of paper.
The Chair: That is under the civil code.
Mr. Tousaw: That is correct. The waiver is ineffective in
the province of Quebec.
Senator Milne: Ms. Belle-Isle and Mr. Lucas, what sort of
oversight do you have of your producers to ensure that they are supplying only
you and not recreational users?
Mr. Leung: When cultivators sign a contract with us, they
agree to a possible site inspection. They also submit hydro bills so that we can
compare the amount of power used with the yield that they supply to us, and
ensure there are not large discrepancies.
Senator Milne: Do you have a certain backlog of
experience that tells you, if they use so many kilowatts per month they will
have so many plants?
Mr. Leung: That is right.
Mr. Lucas: To add to that experience, the site inspection
is a good way to provide some of that assurance. As Mr. Leung suggested as well,
our organization performs tests for heavy metals, biological impurities and
cannabinoids to ensure some purity and quality control of product, but most
important, all these producers could supply the black market and make a much
greater profit if they chose to. In other words, they choose to grow cannabis
specifically for distribution to critically and chronically ill Canadians. They
do so because it gives them a sense of worth, a sense of social capital and
community-building, and a sense of pride in the work they do. They grow for
medical use because they choose to. If they ever chose to go to the black
market, they could make more money there.
Senator Milne: What is the difference in price?
Mr. Lucas: The difference in price right now in B.C. for
triple A organic, as we call the highest grade of organic cannabis, probably
goes for about $2,800 to $3,000 a pound right now, in Victoria and Vancouver.
The Vancouver Island Compassion Society will pay between $2,000 and $2,400 a
pound for it. We are talking about a 30-per-cent reduction in many cases, and
that 30 per cent is a pure profit margin.
Senator Nolin: Senator Milne introduced the question of
production. What is the link between your institutions and the bill, and the
production and the new sentences for production, which is the key?
You have alluded many times to the fact that medical grade
marijuana is 70 per cent organic. Therefore, let us go back to Mr. Beren.
Mr. Beren was producing all the substance for the Vancouver Island Compassion
Society in Victoria, Mr. Lucas' institution. Was Mr. Beren producing one strain,
or how many strains? Was the marijuana organic? Was it also available for the
Mr. Tousaw: The plan for the VICS —
Senator Nolin: I keep going back to Mr. Beren because it
is a public case.
Mr. Tousaw: It is a reported decision.
Senator Nolin: It is reported; everyone can read about
it. I do not want to go into detail on any of your other producers who may not
want their names cited publicly.
Mr. Tousaw: I will provide the committee with the reasons
for sentence because those reasons are not publicly reported. I have them and I
will provide them to the committee.
Senator Nolin: Please do; we need them quickly.
The Chair: Do you have them with you now?
Mr. Tousaw: Only in electronic format; I am happy to
email them to Ms. Richardson. I have my BlackBerry, so I can probably send them
as we sit here.
Mr. Beren was producing only for the Vancouver Island
Compassion Society. At the time of arrest, he had about 15 different strains in
production. He had about 50 different genetics that he was sustaining in mother
Cannabis is grown, like a lot of plants — apples, for example
— not traditionally by seed but by clone to preserve the genetic typing of the
strain. They keep mother plants that they take cuttings from. Mr. Beren had
about 50 different strains, plus a hemp placebo that he was growing at the
production facility, all for the use of the members of the VICS. He was paid
$30,000 a year on a salary basis to produce the cannabis, which is obviously
significantly less than he could have earned on the black market.
One thing that Mr. Leung talked about that was tragic in the
arrest is that they lost all those genetics. They lost the ability to continue
the research that was ongoing about which strains worked well for which symptoms
because the police destroyed all the plants.
Therefore, we have a situation where not only —
Senator Nolin: Without notifying Mr. Beren? The
Controlled Drugs and Substances Act still applies to Mr. Beren.
Mr. Tousaw: Absolutely.
Senator Nolin: Why was he never informed that they were
destroying his property?
Mr. Tousaw: When the police raid and arrest cultivators,
they tend to chop down all the plants before they leave the premises.
Senator Nolin: That provision is not in the bill, but
that is probably a debate for another day.
Mr. Tousaw: You heard Mr. Lucas say they have six
suppliers. Now they have growing production facilities in a number of different
locations, as opposed to one location, one provider, easy oversight, easy
monitoring and all organic production. Production is now diversified. I think
that direction is the wrong one.
Mr. Lucas: For the five years prior to the raid, we had
tried to develop strains that were specific to certain symptomatology. One
specific strain was to address chronic pain, which is one of the biggest factors
in terms of symptoms, if not the primary illness that people see us with.
The only reason I mention it is that we lost, as Mr. Tousaw
suggests, all of that research in one afternoon. It is literally the equivalent
of someone going into your office while you are here today and taking all your
equipment, your files, everything you have worked on, and for it to disappear -
not for a month or a year, but forever. Five years of research and genetics were
As Mr. Tousaw also suggested, we were growing, and ultimately
were charged with growing, non-psychoactive hemp. We were growing hemp because
we had ethics approval for a double-blind clinical trial on smoke cannabis and
chronic pain. We needed a hemp placebo to conduct that double-blind trial so
that people would not know if they were smoking hemp or a high-THC strain of
cannabis. Ironically, those plants showed up in the charges as well.
It is also worth noting we were growing some of Health
Canada's strains to see if we could do a better job than Health Canada — or at
least see how it turned out.
Senator Nolin: Probably Ms. Belle-Isle will be able to
answer, but Mr. Lucas and Mr. Leung can jump in. Regarding the chronic pain area
of symptoms, is it covered by the Medical Marijuana Access Regulation, MMAR?
Ms. Belle-Isle: When you look at the MMAR, there are two
columns. One is the diseases and the other is the associated symptoms. For HIV,
I believe pain is under there, but also for —
Senator Nolin: One moment please. You know a lot about
your subject but we do not. What you are saying is first, someone needs to be
identified through a disease and then they go into the symptoms. Is that right?
Ms. Belle-Isle: I would not say it is an either/or
situation. It is both at the same time.
Senator Nolin: One plus?
Ms. Belle-Isle: Yes; for a person living with HIV, there
are many symptoms associated with HIV, pain being one of them. If they are a
person with severe arthritis, the symptom associated with that condition is
pain; lots of grandmothers enjoy that.
Senator Nolin: There is one symptom most Canadians
understand, which is pain. Chronic pain is what, compared to pain?
Mr. Lucas: Chronic pain is a pain that does not respond
well to traditional treatments. It is associated with a number of conditions —
often, as Ms. Belle-Isle said, it is associated with neuropathic pain. People
with multiple sclerosis, people who suffer a neuropathy through conditions like
fibromyalgia and HIV/AIDS suffer from chronic pain.
Senator Nolin: Those diseases are all covered by the
MMAR. Why are Canadians not going through the MMAR?
Mr. Lucas: One caveat I suggest is that if they have
HIV/AIDS or MS and suffer from chronic pain, they are in category one and they
can access the program with a simple doctor's recommendation. Category two sets
up a slightly higher hoop to jump through, which is, they also need the consent
of a specialist. With my hepatitis C, my gastroenterologist has to be in support
of my use of cannabis, and/or my general practitioner.
Ms. Belle-Isle: Can I clarify? The program no longer
requires a signature of that said specialist. The physician who signs the form
must say only that he or she has consulted with a specialist.
Senator Nolin: Mr. Tousaw, you keep talking about the
amendment that we can make. Do you have any suggestions?
Mr. Tousaw: I will provide that suggestion
electronically. I am happy to provide it. I have several suggested amendments
that might ameliorate some of the negative consequences of this bill.
Senator Nolin: How fast can you send that suggestion?
Mr. Tousaw: I can send it this evening.
If I can add to this point, I do not want to create more
confusion about the MMAR, but let us be clear about something; if someone
suffers from chronic pain as a result of arthritis, their general practitioner
can sign their application forms and they do not need to consult with a
If they suffer from chronic pain as a result of migraines,
they are in a different category. They must see their general practitioner and
they must also consult with a specialist; then their physician must make certain
declarations about that consultation. It is a mixed bag of symptoms.
At the end of the day, they can obtain medical marijuana in
this country provided they have physician support for any condition and any
symptom, as long as they are able to jump through the hoops that have been put
up by the federal government. Theoretically, they can obtain medical marijuana
for stubbing their toe and the pain associated with that condition if their
general physician and specialist will support that.
Of course, we see from the testimony that they do not even
support applications for HIV/AIDS, so it is clear that will not occur. However,
I wanted to be clear about the breakdown of the two categories.
The Chair: Senator Campbell, if you do not mind, Senator
Rivest has not put a question yet and he wants to.
Senator Rivest: I would first like to congratulate you. I
am impressed with the quality of your work. I agree with Sen. Campbell. I think
this bill is nothing but a political parade, but the human consequences and the
consequences for the judicial system are significant.
Mr. Tousaw, you told Sen. Nolin that you were preparing some
amendments. You are already in a kind of legal flux, where you risk prosecution
as the law now stands. In legal terms, sentences will be longer and there will
be more danger for you and the people who work for you.
Given that the status of compassion clubs is still not
defined, how can we make an exception, in this bill, to protect you? I assume
that your group and other organizations that have done the kind of remarkable
work you do have been working on this.
How is it that we aren't able to give you a legal status that
would solve many of the problems ?
Mr. Tousaw: I wish I knew the answer to the second
question. Various courts that have considered the constitutionality of the
medical marijuana access regulations have urged the government to look carefully
at the issue of regulating what the courts have called the "network of
unlicensed suppliers" traditionally supplying medical marijuana users. For
example, the Ontario Court of Appeal in Hitzig v. Canada, which struck
portions of the MMAR, suggested that when the federal government went back to
the drawing board, it ought to consider licensing these compassion clubs. The
government chose not to take that measure — I think with tragic consequences.
To protect groups, I argued before Justice Koenigsberg that
the Controlled Drugs and Substances Act needs an exemption for the production,
distribution and possession of marijuana intended for medical purposes. Our law
currently contemplates general and specific intent crimes. This bill
contemplates specific intent crimes in the area of cannabis production. In other
words, producers are not subject to the mandatory minimum unless the production
is for the purposes of trafficking.
In my respectful submission, it is not all that different to
exempt from the auspices of this bill, and from the CDSA entirely, marijuana
produced or distributed for medical purposes. That exemption does not solve all
the problems. People will still be arrested. It will solve the main problem,
which is that people who possess, produce and distribute medical marijuana will
no longer have their section 7 Charter rights — liberty and security of the
person — implicated by potential convictions in a criminal court.
The degree to which organizations like VICS and BCCCS, which
operate transparently and openly, seek legitimacy will be the degree to which
the organizations avoid police contact. Exemption does not take tools away from
the police or prosecutors. It creates a more compassionate and fair framework to
protect groups like these two organizations that perform good work.
Mr. Lucas: Politicians have considered putting forward
bills to add to the legalization of dispensaries. Libby Davies, Member of
Parliament for Vancouver East, has been one of the main supporters of these
dispensaries. We hope to see action through a private members' bill or otherwise
that will help defend medical cannabis dispensaries.
In support of Mr. Tousaw's notion, it will be remarkable if
out of the quagmire of Bill C-15, and Bill C-26 that came before it, comes
positive legislation for medical cannabis users throughout Canada, and positive
legislation and protection for medical cannabis dispensaries in Canada. If there
is any good you can do through this bill, that is it. I urge you to give serious
consideration to what Mr. Tousaw will likely supply before the end of the day.
It will be small recompense for Canadians affected by Bill C-15. At least our
critically and chronically ill Canadians will be spared the main impact of the
Senator Joyal: I have a question about the definition of
"trafficking." To your knowledge, does it happen that a person with a supply of
medical marijuana will supply marijuana to another person who suffers from
similar conditions but has not been successful in obtaining a supply of the
Mr. Lucas: The sad irony is that, because of the poor
quality of Health Canada's cannabis and a lot of the cannabis on the black
market, medical users — whether licensed or not — often choose to produce their
own cannabis. They do this to reduce costs, to guarantee better and safer
quality or to grow strains helpful for them.
When they find a strain helpful to treat some of the
spasticity associated with MS, it is natural for them to want to share it within
their local community of fellow patients. It is absolutely not unusual to hear
of medical cannabis patients who share their medication with fellow patients in
a cooperative effort.
Under the current law, this sharing is trafficking. As you
have been told, passing a joint is also trafficking. When it comes to the level
of dispensaries and the gram or two grams that we dispense for patients on a
daily basis, that dispensing is unquestionably trafficking. We keep good records
on that trafficking. We have never denied it. When we show up in court, it is
with the clear intent to show that we are accountable and transparent about the
work we do.
Senator Joyal: Mr. Lucas, I was in Parliament when we
adopted a bill to compensate victims of hepatitis C. Have you benefited from
Mr. Lucas: I am thankful to you for that, Senator Joyal.
It allowed my wife and I to put a down payment on a house. Some of the
compensation I received provincially led to the establishment of the Vancouver
Island Compassion Society. I was diagnosed in 1995 and received my first payment
through the Province of Ontario. I used some of that funding to start the
In other words, yes and thank you.
Senator Joyal: I was not begging for the thank you.
Mr. Lucas: I thank you nonetheless, not only for me. My
wife is the executive director of the Hepatitis C Council of British Columbia.
She, still to this day, helps people fill out the forms to allow them to access
the federal compensation. It has made a huge difference in people's lives,
particularly those more symptomatic than I.
The Chair: Before you go, Mr. Leung, the best procedural
advice we have at this point is that it is, at best, unclear whether committees
can receive petitions. It is possibly not within the powers of a committee. To
avoid controversy, I suggest that you hand your petition to Senator Nolin
instead. As a senator, he has the right to present any petition in the Senate.
That petitions cannot be received in committee has nothing to do with the fact
that petitions can be received in the Senate. Thank you for thinking of the
committee, but we will pass on this one for everyone's protection.
Mr. Leung: That is a lovely solution. Thank you very
The Chair: I thank you all very much indeed. It was
extremely interesting testimony and helpful to us.
As our last witness in our detailed and thorough study of
this bill, we are fortunate to have with us Paul Saint-Denis, Senior Counsel,
Criminal Law Policy Section at the Department of Justice Canada. Thank you for
appearing. We have questions that we need to put to you. Do you have an opening
statement, Mr. Saint-Denis?
Paul Saint-Denis, Senior Counsel, Criminal Law Policy
Section, Department of Justice Canada: No, this is my second time before the
committee on this bill. I am here to answer questions, hopefully provide useful
answers, but I have no presentation to make.
The Chair: We needed you back because, of course, more
questions have arisen.
Mr. Saint-Denis: Of course.
The Chair: We'll start with a question from Sen. Nolin.
Senator Nolin: In clause 3 of the bill, it talks about
Senator Joyal: Can you specify the line and page?
Senator Nolin: It's a text I have copied.
The Chair: It's page 3, line 19, I think.
Senator Nolin: You talk about using real property that
belongs to a third party. If it is used with the consent of the owner of the
property, would that change the aggravating factor?
Mr. Saint-Denis: Based on the wording we have before us,
I would say that permission would not change the direction of that provision.
Senator Nolin: So why talk about third parties?
Mr. Saint-Denis: In general, we were aiming at situations
where the third party's property might be used without the knowledge of the
individual in question. If we were talking about using it with the individual's
knowledge, the individual would then be as guilty of the offence as the person
Senator Nolin: I'll give you that. However, why would it
be an aggravating factor? The person who commits the offence is liable to
prosecution as the producer. But how can the fact that the property owner
consents to their building or land being used to produce an illegal substance
amount to an aggravating factor?
Mr. Saint-Denis: That is not the situation we were aiming
at. We were aiming at the situation where the owner does not consent.
Senator Nolin: In one of the questions asked earlier I
thought I understood that Bill C-15, which is the continuation of Bill C-26 that
was introduced in another session of Parliament, was discussed at length by the
attorneys general of Canada, the provincial and federal attorneys general, that
is. When did those discussions start? And how broad was the agreement?
Mr. Saint-Denis: Are you talking about discussions on
Bill C-26 or discussions that might have been held before Bill C-26 was
Senator Nolin: We're talking about Bill C-15. Bill C-26
was part of another session of Parliament, so it won't be in issue.
What discussions took place, at the political and
administrative level, between you and your provincial colleagues, about using
federal legislation to institute mandatory minimum sentences?
Mr. Saint-Denis: It may have been discussed in the year
before the bill was introduced, maybe because another bill had been introduced
Senator Nolin: Did discussions start with your provincial
colleagues after the forerunner to Bill C-15 was introduced?
Mr. Saint-Denis: If I understood correctly, you didn't
want to know what happened before.
Senator Nolin: I would like to know when the discussions
among the attorneys general started.
The Chair: If we're talking about different numbers, the
public watching us won't understand. But we're talking about the process that
led up to the introduction of Bill C-15.
Mr. Saint-Denis: For the provincial attorneys general,
perhaps in the year prior to Bill C-26, perhaps a little more, and not all the
attorneys general, some of them, in particular the ones in western Canada,
expressed interest in this kind of thing. And then, with Bill C-26, discussions
were initiated and formalized more at the political level and among officials. I
would say a year, it may be a little more.
Senator Nolin: Mr. Saint-Denis, I would like to explore
with you the entire question of cannabis, of the production of cannabis for
therapeutic purposes. We have just heard witnesses who evidently have some
experience with compassion clubs and the use of cannabis for therapeutic
When the Minister testified, at the committee's direction, he
said that this bill was not aimed at this type of activity and was aimed much
more at organized crime activities.
Throughout our examination of the bill, we have heard a
number of witnesses who have raised serious concerns about the effect of
implementing Bill C-15. Do you believe that amendments are needed?
Mr. Saint-Denis: To the bill?
Senator Nolin: Yes.
Mr. Saint-Denis: I have to say I didn't have an
opportunity to hear the witnesses who have just appeared. But the Minister
clearly said that we were not targeting compassion clubs or the therapeutic use
And in fact this bill doesn't target users, people who are in
possession for some purpose.
Senator Joyal: Any medical purpose?
Mr. Saint-Denis: Any purpose, except in the case of
possession for the purposes of trafficking. But simple possession, whether for
personal use or therapeutic use, it doesn't target those activities at all.
Senator Rivest: The legal reality is that they are
affected: aimed at one, shot the other.
Mr. Saint-Denis: No, if you examine the provisions here,
they don't talk about possession offences, but possession for the purposes of
trafficking, exporting and importing, not simple possession at all.
The Chair: Excuse me, I am not understanding that
clearly. If someone grows marijuana, if they earn their living, as we have
heard, there are people who do that and we are told they don't earn a lot of
money, but they earn their living from producing, from growing marijuana for
compassion clubs, that's trafficking, is it not?
Mr. Saint-Denis: Madam Chair, that's not possession. What
was being talked about a minute ago, but growing.
The Chair: Production.
Mr. Saint-Denis: It's production, and the provisions of
this bill certainly target certain production activities. But for activities
involving production of 200 plants or less, it has to be for the purposes of
So if you ask me about compassion clubs, I don't know whether
those clubs are engaged in actual production or just selling. If they are just
selling, they would not ordinarily be targeted by this bill. If they are
producing for the purposes of trafficking, they would be targeted by the bill.
Senator Joyal: It all has to start somewhere! Where is
the compassion club going to get it?
Senator Nolin: I think we should explain to
Mr. Saint-Denis what we have just heard; the sole supplier for the Victoria
compassion club, at the time, had 800 members; the supplier was prosecuted in
criminal court, and was in fact given an absolute discharge at trial; the case
is under appeal and is going to the Supreme Court. That is the case of Mr. Baron
in British Columbia. At the time of the seizure, he had 1,000 plants. And he was
an employee of the Victoria compassion club. I think you have a summary there;
he is a producer, he is an employee. The compassion club knows it. It is all
illegal; it is illegal production, and ultimately it is trafficking because
there will be a transfer of a prohibited substance between the compassion club
and its members. The only thing it doesn't have is importing. If we dug a bit
deeper, we might have found that one of the Victoria members is a resident of
Seattle. We don't have testimony that says that, but the facts I have just
explained, that's the situation: Mr. Baron was exonerated by the British
Columbia Supreme Court, at trial.
And with Bill C-15, it would all be illegal and Mr. Baron
would be in prison for three years.
Mr. Saint-Denis: That's right.
Senator Nolin: Should the bill not be amended, given that
the Minister told me, and I quote, "No, Mr. Nolin, that's not what we want, we
want to target organized crime."
Mr. Saint-Denis: The problem with the compassion clubs,
from what I know, is that there is no oversight of their activities.
Senator Joyal: You want to put them all in prison!
Mr. Saint-Denis: We don't know exactly what they are
selling. The compassion clubs say that they sell only to people who have
prescriptions or who identify themselves as people who need it for therapeutic
purposes. That's what they say. Is that what they do? I don't know exactly
whether their sales are exclusively for therapeutic purposes or not. We don't
know. So 1,000 plants, that produces an enormous amount of marijuana, as you
know, Sen. Nolin.
Senator Nolin: But you know, 1,000 plants divided into 50
different types of cannabis, because the 800 members don't all want the same
type of cannabis, that explains it.
Mr. Saint-Denis: Possibly, but none of the compassion
clubs have any oversight, there are no inspectors, we don't know anything about
the operations or the sales. So it is understandable that the government has
some apprehension about those activities.
Senator Nolin: The times when the courts have been asked
to explore this operation, I think that with the testimony we have heard today,
the conclusion is that the courts have used their discretion to discharge these
people because, in the courts' view, they were meeting a need. Legally, we can't
agree with that, but the public evidently seems to agree with that and the
courts have done it.
Should the bill be amended to try at least to narrow the net
that may unfortunately be cast, in spite of the Minister's intention?
Mr. Saint-Denis: I don't think I can answer that question
yes or no. The only thing is that I don't know what kind of amendment you might
make, that would mean there would be no abuse if we opened the door to
exceptions of that nature, without some kind of oversight, be it federal or
provincial agencies. If we make exceptions for compassion clubs, I can guarantee
that will be an open door that will be used by creating a myriad of compassion
clubs, that will maybe not all be more "compassionate" than their pocketbook.
Senator Joyal: I have a supplementary question on that.
The Chair: Okay. There are other questions, and then
there will be one final presentation from Sen. Nolin.
Senator Joyal: But we have to know the facts. The
marijuana distributed by compassion clubs doesn't fall from the sky like manna
in the desert. They get it somewhere.
To avoid mandatory minimum sentences, they have to get their
supplies from a large number of people who can supply them with fewer than five
plants, to avoid the mandatory minimum sentence. If I read, at page 4 of
imprisonment for a term of six
months if the number of plants produced is less than 201
and more than five, and the production is for the
purpose of trafficking,
If we take your word for it, that is what it means.
Mr. Saint-Denis: That's right. But you do have to
recognize that compassion clubs are not legal organizations, in terms of the
law. They are organizations that distribute marijuana illegally. No exception
has been created. Even in the context of distributing or access to marijuana for
therapeutic purposes, there is no permission for creating an organization that
could engage in large-scale distribution. We have a system that allows for
individual possession or, more recently now, production for two people. And
that's all. That is what we now have with the Medical Marijuana Access
Regulations. Compassion clubs are not legal.
Senator Nolin: To make them a little more legal, the
courts have used section 730 of the Criminal Code, in their discretion, to
exonerate these people, while finding them guilty. Perhaps there could be an
amendment to give this kind of discretion back to the courts.
Mr. Saint-Denis: Possibly
Senator Wallace: There has been a lot of discussion
around this table from the various witnesses who have commented on the
trafficking provisions that are included in Bill C-15. In particular, those
provisions are in clause 1, as you undoubtedly know, amending paragraph 5(3)(a)
of the act. That particular amendment to the Controlled Drugs and Substances Act
provides, as I understand it, for an escalating scale of mandatory minimum
penalties that will be dependent upon trafficking.
I sense from some of the comments from witnesses that there
is confusion about the concept of trafficking, and perhaps a lack of
understanding about the aggravating factors that are mentioned — not only
mentioned, but are an integral part of that section. Perhaps everyone is clear
on the concept, but I have heard enough comment that makes me wonder if we are.
Can you explain the inter-relationship of these aggravating
factors with the concept of trafficking that is set out in clause 1 of the bill?
Mr. Saint-Denis: I think we have to start with the
definition of trafficking. Trafficking covers a range of activities — including
giving, selling, selling without consideration and so on. The easiest way to
explain trafficking is that the minimum penalty does not come into play in cases
of trafficking unless one of these factors is present.
Therefore, if I give a joint to my friend, I am trafficking
but I do not get with these minimum penalties. The bill is not meant to do that.
It is meant to deal with cases of, for instance, organized crime where weapons
or violence is used. Simple trafficking, even if there is a commercial
consideration, will not be caught. There must be an aggravating factor — not any
aggravating factor but one of these listed aggravating factors — for the minimum
penalty to kick in.
Senator Wallace: Do you have the aggravating factors in
front of you?
Mr. Saint-Denis: Yes, I do.
Senator Wallace: You do not have to read them line by
line, but can you highlight the nature of each of those aggravating factors that
must be proven in conjunction with trafficking, so we are clear on this issue?
Mr. Saint-Denis: After trafficking, they have to indicate
that either the person committed the offence for an organized crime group, that
the individual used or threatened to use a weapon or the individual used or
threatened to use violence. That will get them into the minimum one-year
sentence. There is a fourth aggravating factor that I should not forget, where
the individual has had a previous conviction. That will get them the minimum one
There is another consideration, which will attract a minimum
of two years. If the trafficking occurs in or near a school or a public place
that is usually frequented by persons under the age of 18, if the trafficking
occurs in a prison or if the person uses the youth to commit the offence of
trafficking, if any of those factors are present, the individual will receive
the minimum two years.
Absent these factors, there is no minimum. The simple
selling, giving or transportation without any of these factors will not attract
a minimum penalty.
Senator Wallace: You mentioned one of the subsections of
clause 1, proposed section 5(3)(a)(ii)(A), which talks about an
aggravating factor that can result in a two-year mandatory minimum. That
provision refers to the commission of an offence. I will paraphrase and move to
the part I want you to comment on: "in or near any other public place usually
frequented by persons under the age of 18 years."
We have heard comment about what can appear to be the
ambiguity of that provision; how do you know whether this area is frequented by
persons under the age of 18? Does that phraseology appear elsewhere in the
Criminal Code, or are you aware of any judicial interpretation of what that
Mr. Saint-Denis: It appears under the sentencing
guidelines for the Controlled Drugs and Substances Act now. It is one of the
factors that a court must take into account as a potential aggravating factor.
The language that you find here was inspired by that existing language now in
In this context, I am not aware of a judicial interpretation
about these phrases, what these phrases mean, but the courts are capable of
dealing with those kinds of issues. We do not feel that provision is
Senator Wallace: Can I askone other question?
The Chair: Will you let me put a supplementary question,
Senator Wallace: Certainly.
The Chair: It is a sentencing factor — that language
about "in or near any other public place." I want to be clear; you are not aware
of any jurisprudence on this language, so we do not know how this provision has
been used in the courts. Is that right?
Mr. Saint-Denis: I am not familiar with that having been
used. Having said that, it does not mean it has never been used.
The Chair: We have had testimony from lawyers, and in one
case from a retired judge, to the effect that the language was rather broad. The
example I kept citing for the purposes of trying to elicit testimony was a bus
stop frequented not only by children but by everyone. You cannot give us any
guidance at all on how that provision will likely apply?
Mr. Saint-Denis: I can give you a general idea in a sense
that I do not believe a bus stop will necessarily qualify, but perhaps certain
parts of a mall might. Obviously schools will, and schools are mentioned here
anyway. Playgrounds are such an area, for instance.
These are the kinds of things that the courts will deal with.
Yes, they are broadly stated; but without going into a long list of potential
areas, we thought it best to try to capture the general idea; the principle we
wanted to establish here.
I agree with you and the witnesses who said that this
language is broad, but it is not beyond the ability of a court to define.
The Chair: Forgive me. I know this is your time, Senator
Wallace, and you will be compensated for it, but since this subject has been
raised, I want to be sure I understand. The phrase occurs now, as I understand
it, as a guideline for sentencing.
Mr. Saint-Denis: That is correct.
The Chair: But here, it kicks in; It is no longer a
Mr. Saint-Denis: That is correct.
The Chair: It is a stiff rule imposing a mandatory
minimum, which is why it no longer allows for the same degree of judicial
discretion that can be applied when we are talking only about guidelines. I ask
again. Beyond assuming that the courts can handle anything we throw at them, we
do not have anything more specific to hang our understanding of these words on.
Mr. Saint-Denis: I am afraid there is nothing more
specific. We rejected the idea, but an alternative was to list potential sites
where those things might occur. That might have been a long list, indeed.
The Chair: There has already been jurisprudence saying
that "community centres" was too vague.
Mr. Saint-Denis: "Community centres" might be, depending
on the community centre. These will be case-specific.
The Chair: Litigation awaits.
Thank you, Senator Wallace, for your patience.
Senator Wallace: To follow up on your point, chair,
coming back to the purpose for that subsection, it is obviously to provide as
much protection as possible to young people, those under the age of 18, so that
they do not become subject to drug trafficking. That is the whole purpose of the
provision. I suppose we can debate the breadth of the language, but I know from
my own experience that courts provide judicial interpretation of language
continuously on all acts. That interpretation is not out of the ordinary. Do you
Mr. Saint-Denis: I completely agree. As you correctly
point out, the idea was to ensure a level of protection from exposing youngsters
to drugs and drug traffic; drug activities.
Senator Wallace: A lot of evidence and opinion has been
expressed about mandatory minimums and their effectiveness. Are you familiar,
Mr. Saint-Denis, with the history of mandatory minimums as they form part of the
Criminal Code or related statutes in this country? Can you tell us anything
about the history? How many times have mandatory minimums appear? Have they
appeared, and over what period of time?
Mr. Saint-Denis: I am afraid I cannot give you a detailed
blow-by-blow description of the history of mandatory minimums either in the code
or anywhere else. However, they have formed a part of the Criminal Code
provisions. There are not many of them. In fact, at one time, there was a
minimum penalty for a drug offence. The importation offence had a minimum
penalty since, I think, 1960 or so in the old Narcotics Control Act. That
provision was struck down. The minimum was seven years and it did not take into
account the possibility that a court would be obliged to impose a seven-year
minimum for importing a small amount of drugs, so the Supreme Court struck down
The Supreme Court has had an opportunity to look at minimum
penalties in the code and, providing there is a rational connection between the
offence and the penalty, the courts have supported or sustained these penalties.
After the terrible incident in Montreal where a number of women were killed with
the use of a firearm, we introduced a number of firearm-related offences with
minimum four-year penalties, and most of them have been challenged and have been
Senator Wallace: My understanding is that mandatory
minimums are not a recent occurrence.
Mr. Saint-Denis: No, they are not.
Senator Wallace: My understanding is that there are 44 of
them in the Criminal Code, going back to 1976, and of those 44, 34 of them were
2005 and prior. Do you know if that is the case?
Mr. Saint-Denis: I do not know that for a fact, but I
know mandatory minimums have been part of our code for as long as I have been
involved with the code, and that involvement goes back to 1981. Mandatory
minimums are not that unusual.
If we move away from the Canadian context, internationally,
minimum penalties in the drugs area are not unusual at all. Any number of
countries have them, including European countries and African and Asian
countries. Some minimum penalties are extremely severe and others less so.
Minimum penalties form part of the sentencing background for most countries,
especially in the area of drugs.
Senator Wallace: Thank you very much.
The Chair: Supplementary question: I have seen commentary
to the effect that in most, I will say democratic countries, because that was
what the commentary was talking about, that include mandatory minimums in their
Criminal Code, they also allow, on a standard basis, for the exercise of
judicial discretion to waive those mandatory minimums when the judge deems that
the circumstances warrant it. Is that a fair understanding of what most other
countries do, in your understanding?
Mr. Saint-Denis: I cannot tell you, honestly. The brief
research I undertook on that issue did not speak to it. It does not mean that is
the case or is not the case. I just do not know.
The Chair: I knew I was pushing there, but it is always
worth trying to elicit information.
Senator Wallace: Supplementary to that question, my
understanding is that there is the ability for an exemption from the application
of a mandatory minimum in the bill as it relates to accused who take treatment
through drug treatment courts or through provincial drug treatment services.
Mr. Saint-Denis: Where they exist.
Senator Wallace: Yes; both drug treatment courts and
provincial drug treatment services, which covers a wide base, I am sure you
Mr. Saint-Denis: There is that ability, plus discretion
in terms of the presentation or introduction of evidence of the aggravating
factors. If those aggravating factors exist but for one reason or another, the
Crown chooses not to introduce them, then the minimum penalties will not come
Senator Milne: If I can follow on from that answer, Mr.
Saint-Denis, you are saying that this law puts the decision in the hands of the
prosecutor and not of the judge.
Mr. Saint-Denis: It depends what aspects you are talking
Senator Milne: I am referring to the answer you gave to
Mr. Saint-Denis: I said there is some discretion.
Senator Milne: With what they are charged with.
Mr. Saint-Denis: That is the situation now.
Senator Milne: Yes, but this bill takes this discretion
behind closed doors and out of public scrutiny. That is what this bill does.
Mr. Saint-Denis: That is what the present law does as
Senator Milne: Mr. Saint-Denis, when I heard your answer
to Senator Nolin, I became a little irritated. Your first answer was "dans ce
projet de loi." What other law are we speaking about right here and now? It is
this law we are talking about. You also said the word "peut-etre" about four or
five times in the first sentence. I hope you are not trying to avoid some of the
questions, because it seems to me that was where you were heading.
We heard testimony here from Thomas Kerr, who is with the
Centre for Excellence in HIV/AIDS. He talked about his concerns with the use of
"criminal organization" in this setting. His study, apparently a participation
in illicit drug dealing among street-based injectors in Vancouver's downtown
east side, found that drug dealers who were users themselves typically worked in
groups of four; a steerer, a seller, a holder and a collector. These positions
are held, he pointed out, by the most severely disadvantaged and addicted
In my understanding of the Criminal Code, that a group of
three is a criminal organization. A group of four is certainly a criminal
organization. Will the minimum sentence apply to these people? Is this law
designed to scoop up people off the street who are the most disadvantaged in our
Mr. Saint-Denis: Your question is: Is this law designed
to do that? No, it is not.
Senator Milne: Will that be the effect of the law?
Mr. Saint-Denis: Will that happen? It is possible that
will happen, yes.
Senator Milne: I am becoming more and more discouraged
about this law all the time.
We heard from the proponents of the medical use of marijuana
that one of the reasons that doctors do not prescribe medical marijuana to
people who need it is because, to do so, they have to fill out a 30-page form.
Is the government planning to revamp the regulations so that will not happen?
Mr. Saint-Denis: I cannot say. I do not know.
The Chair: Is that responsibility under Health Canada?
Mr. Saint-Denis: Health Canada is responsible.
The Chair: For the 30-page form and all those
Mr. Saint-Denis: That is correct.
Senator Nolin: More than that; the health minister is the
minister under the CDSA.
Mr. Saint-Denis: That is correct as well.
Senator Milne: We are talking in circles.
Senator Joyal: I would like to come back to the question
of compassion clubs because your response, as they say in English, was
"illusive". That is my opinion; I may be wrong. But I think it is important for
us, the ones who will have to vote on this bill, to know what we are doing so we
can avoid discovering, when the legislation is interpreted, that we have caught
compassion clubs under the Criminal Code, because we were told today that none
of them had been convicted under the provisions of the Criminal Code to date.
Your answer is that all these clubs could be charged and
convicted and given minimum sentences because they have to get cannabis
somewhere. Unless they buy from producers who grow fewer than five plants, they
would automatically come under the provisions of this bill if they buy more than
five, with sentences ranging from six to nine months or a year or 18 months,
depending on the quantity.
In your mind, what was your objective in relation to
compassion clubs when you drafted this bill?
Mr. Saint-Denis: As I said earlier, compassion clubs are
not legal, they are clubs that engage in illegal activities.
Senator Joyal: Why have the courts not convicted them so
Mr. Saint-Denis: That is up to the judges' discretion.
Senator Joyal: And why have the judges used that
discretion? Is it because the judges concluded that they were doing a job and
meeting a social need that the government itself was not meeting?
Mr. Saint-Denis: That is very possible.
Senator Joyal: Exactly. You have confirmed what I am
afraid of. The government has not changed its capacity to supply the people who
currently are entitled to use marijuana medically. It has not improved its
capacity to give those people an adequate quality and quantity of marijuana, and
there has been a kind of communal response. The courts have recognized that this
way of meeting the needs was perhaps not what the government had in mind, but it
was meeting a particular social need. The effects of this legislation will be
that they will all be made illegal, but the supply will stay the same: poor and
If that is what we are doing with this bill, we have a
problem. At the Justice Department, social problems are a little less concern to
you, because they come under the Health Department. But as legislators, when we
study a bill, we have to be concerned about the legality of what is being done,
but also about the social impact the bill will have on a group in the public
that is disadvantaged or that is dealing with a particular need.
When you draft a bill, you can't ignore the impact it will
have on a certain number of individuals, who are all going to end up in prison
the next day, with completely inadequate treatment. You have read the same
testimony as we have. If you could tell us: "Don't worry, there are treatments
available in prison. Don't worry, there is everything you need, psychologists,
consultants, doctors, and so on. Don't worry, the number of AIDS patients in the
prisons is declining. Don't worry, people who et out of prison are in better
health than when they went in" — when 20 per cent of the people getting out of
prison have AIDS.
You can't ask me to pass a bill with my eyes shut, and
telling myself: "Don't worry, be happy, everything will be fine in the morning
in Canada's prisons."
Mr. Saint-Denis: It is not the objective of this bill to
try to solve every problem...
Senator Joyal: No, but you are going to create more with
this bill. That's my problem!
Mr. Saint-Denis: You have asked some useful questions,
but at the Justice Department we could certainly not try to create exceptions to
the provisions we have here for activities that we recognize are illegal. You
have to admit that the Department of Justice can't allow people to engage in
illegal activities. We could not create an exception for an activity we
recognize to be illegal.
You have heard witnesses from compassion clubs. I would
venture to think they are not the only compassion clubs in Canada. There are a
number of them. I don't know whether they have the level of oversight that the
people here claim to have at theirs, but I know there are cases where the
compassion club sells marijuana for therapeutic purposes for what are really
relatively minor ailments. "I'm a little stressed out, can I have a joint
please?" "I'm having a bad day, I'm depressed. Can I have a joint please?"
When we studied the regulations on access to medical
marijuana, that was not the type of ailments we had in mind. I do have to admit
to a degree of confusion about this kind of enthusiasm for a drug for which we
have virtually no tests. We know that marijuana helps in certain very specific
cases, but for some historical reason we don't have a lot of information about
the therapeutic value of marijuana. A lot of people say it is good for them. It
has some value, but this isn't scientific proof. Drugs that are extensively
tested by the scientific community are under much more stringent oversight than
what is wanted for a drug for which there is very little scientific proof in
terms of its therapeutic value.
So when I'm told that compassion clubs are doing valuable
work and they are useful, fine, but I am still a little reluctant to take their
word for 100 per cent of what they say.
Given that it is the Justice Department and we deal with are
dealing with illegal activities, the Minister of Justice can't just create
exceptions to allow activities that are recognized as illegal under the law. I'm
Senator Joyal: And that the courts have never wanted to
Mr. Saint-Denis: The courts being what they are, it is
not entirely accurate to say they have never wanted to punish. There is one
case, an individual, unfortunately I've forgotten the name, in Montreal, who was
the head of a compassion club and was convicted.
We have to distinguish between what happens in the courts in
British Columbia, where we recognize that there are sometimes decisions that are
a little out of the mainstream, on the one hand, and what happens elsewhere in
Canada, on the other.
Senator Nolin: I'd like to ask a question about the
discretion judges have in other jurisdictions. In 2006, the Justice Department
published a study that examined the common law countries, primarily the
Commonwealth countries, our closest allies, Australia, New Zealand, and so on. I
don't even need to go into the text in depth, the salient facts, it is even
easier for journalists who don't want to read it all, it shows that most other
jurisdictions — as compared to Canada — that have created mandatory minimum
prison terms give their courts some judicial discretion. The judicial discretion
clause allows judges to impose a lighter sentence in the case of exceptional
It's in your office. I understand you have not read it, but
there should have been someone you talked to, ultimately, precisely to cover the
compassion clubs situation my colleague Sen. Joyal is referring to. We have to
think that apart from the case of Mr. Saint-Onge in Montreal, judges have all
give discharges to compassion clubs because they had discretion.
Mr. Saint-Denis: You're right, I was forgetting that
Senator Nolin: I said Mr. Saint-Onge, but it may have
been Mr. Saint-Maurice. I don't want Mr. Saint-Onge's name to be used, but there
was someone by that name in the operation. And it was a large one. Ultimately,
someone has to have the ability not to have to give someone who has been found
guilty a mandatory prison sentence, if it is discovered that the law did not
provide for the excuse that arises.
Mr. Saint-Denis: You are entirely correct. The report
talks about a jurisdiction where judges were allowed some discretion. When the
chair asked me the question, I wasn't thinking about that report, but about
other cases. That's right. There are jurisdictions, countries, where the courts
have been allowed discretion, even in the context of a system that provides for
The Chair: I want a supplementary question on this issue.
Mr. Saint-Denis, I take your repeated reservations about
compassion clubs and writing into a law protections for organizations that are
not licensed, not regulated and not even legal under the law as it stands.
However, will it be contrary to the architecture and purpose
of this bill to include some measure of judicial discretion where the judge is
satisfied that the production or provision of marijuana is for therapeutic use
and that the imposition of the mandatory minimum will be excessively harsh in
those circumstances? I am not talking now about compassion clubs, which are
organizations. I am talking about the goal of the activity in question. Will
such an exception be contrary to what we have been assured is the purpose of
Mr. Saint-Denis: When I think of compassion clubs, I
always think about the distribution of marijuana.
The Chair: I am not asking about compassion clubs. I am
asking about a judge for whom the phrase "compassion club" never comes up, but
someone is before the judge charged with producing or supplying marijuana for
therapeutic use; and the person then demonstrates it is for genuine therapeutic
use, not for disguised recreational purposes.
I thought I had heard from the minister and from everyone
that therapeutic use is not what this bill was trying to catch; to levy
mandatory minimums in those cases. Do you understand what I am asking? If not, I
will try again.
Mr. Saint-Denis: Yes, I understand perfectly. You covered
two situations. One situation is some form of distribution, and the other is
The Chair: Producing or supplying.
Mr. Saint-Denis: As far as the distribution side of it
goes, this bill will not catch that activity. With regard to trafficking, unless
these compassion clubs are trafficking for organized crime or doing it so
clearly, the aggravating factors set out here will not apply to those
That leaves us with the question of production. Your question
is whether this judicial discretion will go against the architecture of the
bill. I would say technically, yes, because the bill does not provide for that
sort of situation. If this committee believes that such an exemption or such a
clause will be beneficial, then the committee will have to make that decision on
its own, but it would not be in line with what is contained in this bill.
The Chair: Even though it might be in line with the
assurances we have been given by those responsible for it? I do not know; I have
to think about this question. These are questions we need to think about. I was
interested in your response.
You had another question, Senator Nolin?
Senator Nolin: Mr. Saint-Denis, I want to come back to
your description of the sentences and decisions of the British Columbia courts.
We have heard one witness who did a study at Simon Fraser University about what
he claimed to be an obvious tendency on the part of the British Columbia courts
to hand down lower sentences than what they should be.
Based on that testimony, we have systematically put the
question to everyone who has come before us who might have been able to assess
the work done by the courts, from close up or farther away. Everyone, without
exception, has refuted that study, using other studies to support what they
said. Professors, lawyers, a retired judge — everyone refuted that study.
You bring me back to the comment that at the Justice
Department a distinction is made between the work done by the British Columbia
judiciary and the judiciary in the rest of Canada. I would like to know at least
what you base your opinion on.
Mr. Saint-Denis: It is mainly on perceptions like what we
are told by our prosecutors in British Columbia. It may be because they are next
door to Alberta or that the same offence may be subject to harsher punishment,
but certainly the perception of our prosecutors in British Columbia is that they
have often seen decisions that led to sentences that were, in their opinion,
Senator Nolin: Your colleague at the federal Justice
Department, who worked on the Beren case, had to have been surprised at Justice
Koenigsberg's decision, even if he was somewhat expecting it, when the judge
found Mr. Beren guilty and gave him an absolute discharge.
I think we have to set medical marijuana use aside and rather
focus on offences like importing.
The previous witness cited several cases in which the minimum
sentences imposed are not really similar to the ones imposed by the courts in
British Columbia. In one case, someone was sentenced to eight years in prison
for importing six grams of cocaine. That person must have found their trip a
Mr. Saint-Denis: Undoubtedly, but there may have been
other aggravating factors.
Senator Joyal: I'd like to come back to the question of
Senator Wallace has raised that point. There is a point for
which I want clarification from you.
I would like to get some clarification about the aggravating
factor referred to in item (D), at the top of page 2 of the bill.
It is page 2, proposed paragraph (D) on the top of the page:
the person was convicted of a designated substance
offence, or had served a term of imprisonment for a designated substance
offence, within the previous 10 years. . . .
How should I interpret that provision?
Mr. Saint-Denis: We are talking about two periods, the
one when the individual is sentenced and the time when the prison term ends. We
were trying to ensure that an individual who was incarcerated, and so could not
be convicted for a drug-related offence in the last five years, since they were
in prison, could not take advantage of the fact that they had not been convicted
in the last 10 years.
Senator Joyal: Could you repeat your answer?
Mr. Saint-Denis: Take the example of a person who is
convicted and over the last 10 years spent five years in prison. The fact that
they didn't commit any offences, since they weren't able to, because they were
in prison, should not count in their favour. So this 10-year period would start
to run only from the point when the individual got out of prison and not from
the point when they were convicted.
Senator Joyal: That is not the way I interpreted it. That
is not the way I read the bill. I will explain how I interpreted it at reading.
I am not a lawyer; I am only reading this provision and I want to understand
what it is.
The person "was convicted of a designated . . . offence," so
to me it means that among the designated offences, the person has been found
guilty of trafficking; that person gave an ecstasy pill to another person in a
rave and has been found guilty. This paragraph says to me that the person has
been convicted "of a designated substance offence, or" — so that is another set
of circumstances — "had served a term of imprisonment for a designated . . .
offence, within the previous 10 years."
The way I interpret that provision is that the other
circumstance is that the person has been in prison as a sentence. It means that
he might have served one day, two months, five years or nine years. For me, this
is the second set of circumstances and those two conditions would be within the
previous 10 years, the way it is written in English, because "within the
previous 10 years" could apply as much to the person who was convicted as to the
service of the term of imprisonment. The way it is drafted is not as clear as
you might want to explain it to us tonight.
Mr. Saint-Denis: We thought it was clear, but perhaps by
working on it, sometimes we have a sense of where we want to go and maybe it
does not come out that way. However, on reading that provision, my
interpretation is that the 10 years would run from either the time the person is
convicted or the time the person essentially has finished serving the term of
imprisonment. They can have a conviction and receive no term of imprisonment, as
Senator Joyal: Yes, of course. They can be discharged.
Mr. Saint-Denis: They can be discharged, or they can
receive parole or any number of things.
They can be convicted and serve a term of imprisonment. In
our thinking, it made sense to have a provision that dealt with previous
convictions for the previous 10 years if 9 of those previous 10 years were spent
in prison, where an individual would not have a chance to commit a drug offence.
Senator Joyal: That is not what we heard.
Mr. Saint-Denis: That is theoretically.
The Chair: May I have asupplementary question?
Mr. Saint-Denis: The whole purpose of this provision is
to try to give a benefit to the individual who has remained conviction-free for
If the individual has had a previous conviction 11 years ago,
then there is no aggravating factor, or if the individual served a term of
imprisonment that ended 11 or 12 years ago and that individual commits another
designated offence, then the aggravating factor will not apply.
However, if the individual stepped out of prison after nine
years of imprisonment and committed a second aggravating factor, a second
designated offence, then this factor will come into play.
The Chair: I withdraw my supplementary question.
Senator Nolin: Clause 10 of the act, under the heading
"Sentencing", sets out a series of aggravating factors. Paragraph 10(2)(b)
says: "was previously convicted of a designated substance offence". I presume
that is where you have taken the factors from — they can't be called aggravating
factors now, because they are part of the actus reus
of the offence.
Mr. Saint-Denis: Yes.
Senator Nolin: Although the chair is not a lawyer, she
has pointed out a major problem. We see a huge difference between a judge
considering the aggravating factors, as set out in the existing section 10, and
a judge having to deal with a constituent element that forces them to make a
decision. You are making the constituent elements harsher by adding this item
about serving a sentence, the time in incarceration, within that 10-year period.
Mr. Saint-Denis: That's right.
Senator Nolin: Ultimately, we're talking about a double
sentence for the same offence.
Mr. Saint-Denis: I wouldn't say that.
Senator Nolin: At least, some people will try to see it
Mr. Saint-Denis: I don't think so.
Senator Nolin: No?
Mr. Saint-Denis: The 10 years starts to run from when the
individual is convicted or from when they have completed their prison term.
Senator Nolin: I understand, but why did you not limit it
to what is said in section 10?
Mr. Saint-Denis: Because we thought it was important to
cover the situation of an individual who had been in prison and had not
committed an offence or not been sentenced for an offence, because it was right
within the 10 years.
Senator Nolin: Outside the 10 years. In section 10, there
is no 10-year limit.
Mr. Saint-Denis: No, there isn't. That's correct.
Senator Nolin: It can be anytime in the previous lifetime
of a person convicted, or of the accused.
I think the chair has put her finger on a major problem. The
lawyers are certainly going to exploit this distinction. It seems to me to be
Again, we are narrowing judicial discretion, and that is one
of the norms and the good features of our system of justice.
In the examination of the bill that preceded bill C-25, the
Minister himself almost applauded the work done by our courts. So I don't see
why we would not trust them in this case, and why we would have mandatory
sentences, and list a series of situations that would compel judges to impose a
mandatory minimum sentence.
The chair has put her finger on a situation and is making a
distinction between sentencing, which is the judge's job, and the elements of
The Chair: That is a lovely speech full of compliments
for me, but it is not a question.
Senator Nolin: My question is still the same one. Do you
not see this as an opening for an amendment that would allow a judge to get
back, to retain, full judicial discretion with everything that implies regarding
aggravating factors — we still have not talked about Aboriginal communities,
that are disproportionately represented or overrepresented in the prison
clientele — having regard to everything that surrounds the exercise of judicial
Why not give judges back that discretion? It would be
appropriate for a judge to be able to look at the case, in light of the facts,
but retaining their discretion, to be sure that a person who comes within an
excuse there is no provision for but, and it's always possible, and rule that
they were not subject to that sentence.
Mr. Saint-Denis: The policy as set out in this bill is
not intended to give more discretion to the judiciary, but to give them less.
Senator Nolin: The bill removes judicial discretion. So
by removing it, it is part of the bill.
Senator Joyal: You have transformed a factor in
sentencing and you have made it an aggravating factor in the offence, by
transforming paragraph 10(2)(b) into 10(2)(d).
Senator Nolin: It's the same for all the other elements.
Senator Joyal: Exactly. By removing paragraph 10(2)(b),
which was one of the factors the judge has to consider in sentencing, when they
judge had to assess that factor. I will take an extreme example because it is
the absurd examples that enable us to follow the logic to its end: a person has
been convicted of giving someone an Ecstasy pill at a rave — that is the minimum
we can find in the Controlled Drugs Act — and when the judge had to determine
sentence, they thought: "it's minor, we'll give them a chance", and so on. Now,
you have transformed this into an aggravating factor in the crime. So the judge
can no longer assess whether a single pill is significant as compared to
10 kilos of heroin, the mere fact that the person has been convicted within less
than 10 years, with an Ecstasy pill, that person will now get a one-year minimum
sentence, straight off. The judge has no discretion; it is a minimum of one year
You have changed something fundamental in the drug law as it
was previously interpreted.
Mr. Saint-Denis: You are quite right, Sen. Joyal. That is
the purpose of the amendment.
Senator Joyal: It is extreme because it should at least
delineate the severity of the offence, of the sentence. You are assigning the
same importance to the aggravating factor consisting of a pill as to 10 kilos of
heroin. The system has to be rational. If we do that, the judge has to be able,
at some point, to assess the circumstance sin which the conviction was obtained.
Mr. Saint-Denis: But we have to remember a couple of
little things still. But with your example of the Ecstasy pill and the 10 kilos
of heroin, we have limited judges' discretion in relation to the minimum they
can impose, but not the maximum.
In the case of the individual with the pill, the law would
require — it is not entirely clear in your pill example; if the aggravating
factor was one of them. But let's say yes. Let's assume it is.
Senator Joyal: That's right.
Mr. Saint-Denis: That in this case there was trafficking.
Senator Nolin: The person had a fake identity card. They
weren't 18 years old, they were 16. That can happen. I think it happens
Mr. Saint-Denis: That brings makes it one of the
aggravating factors and the judge has to impose a mandatory minimum sentence.
But in the case of 10 kilos, the judge will not impose a minimum sentence. The
maximum sentence for trafficking is life in prison. The judge isn't going to
stop at one year. They are going to aim a fair bit higher. Judges still have
discretion to assess the aggravating factors that go beyond what is provided in
the legislation. We have not eliminated judges' discretion. We have
Senator Nolin: That's why it is part of this bill.
The Chair: You have imposed a threshold.
I think we have made a fair tour of this particular topic.
Senator Joyal: I haveanother question: clause
5(2) amending subsection 10(5) on top of page 6:
If the offender successfully completes a program —
Why have you put "successfully" or "avec success"? On what
will the decision that the program was successfully completed?
Why have we not said, "If the offender completes a program"?
Why include the qualifier "successfully"?
Mr. Saint-Denis: It seems reasonable to me to want
someone to be able to complete a treatment program successfully. It will be up
to the courts to decide whether it was done successfully. Ordinarily, when a
treatment court is dealing with an offender, it will impose certain conditions,
including abstaining from using drugs, and possibly psychotherapy or trying to
find a job or things like that. The court will examine the situation and decide,
at the end, whether the individual has met the requirements imposed by the
court. That is what successfully is.
Senator Joyal: Why was it not in section 720(2) of the
Mr. Saint-Denis: Because section 720(2) of the Criminal
Code doesn't talk about addictions courts.
Senator Joyal: Yes, it refers to treatment, "Treatment
program approved by the province". That is exactly what there is in the courts.
The Chair: Mr. Saint-Denis is entitled to answer the
questions he is asked.
Mr. Saint-Denis: It is because the addictions courts are
a very specific phenomenon, as opposed to other types of courts approved by the
province that may hear offenders who appear before the courts.
The courts for what are called court-ordered addiction
treatment programs are a phenomenon that was created six years ago in Canada.
They have a certain style of operating, and if I understand correctly they
operate differently from other treatment programs available to the courts.
Senator Joyal: I understand, except that "successfully"
applies both to treatment courts and provincial treatment programs; and in the
latter case, the qualifier "successfully" wasn't used.
Mr. Saint-Denis: That's true, but the court — you're
talking about discretion — will have the discretion to determine whether the
individual has completed the treatment successfully. In both cases, the court
supervises the treatment. And in both cases, the court will undoubtedly want to
impose certain conditions. For people with a drug addiction, they will require
at least that the individual not use drugs. There will be urine testing,
ordinarily, done randomly, to make sure the individual is complying with the
conditions. If there are relapses, the court will be able to assess whether,
having regard to the other factors, the other conditions, that is enough to
determine that the individual has not successfully completed, or that it was
successful, even if there were one or two relapses.
The Chair: Mr. Saint-Denis, we heard testimony making it
very plain that in drug treatment programs — and my recollection is also under
the drug court programs — people enrolled in those programs are kicked out of
them if they fail along the way; if they fail their tests or if they have
relapses into usage. The fact that they come out the other end having completed
the program means that they actually did complete the program. They did not just
show up and pretend to be doing it; they completed the program. The program
includes the kind of conditions you are talking about.
Therefore, I was mystified by the addition of this word
"successfully." How do you define that word in a law? How do you define
"successfully complete" as distinct from "complete"?
Mr. Saint-Denis: It will be left to the discretion of the
court. "Successfully" might not necessarily mean that the individual has met 100
per cent of the conditions 100 per cent of the time. My understanding is that
there are individuals who do successfully complete the program in spite of
possibly having had a relapse at the beginning or at some time during the
The Chair: However, they are allowed to stay in the
program, on the judgment of the program operators.
Mr. Saint-Denis: I do not believe that a single relapse
will necessarily result in an individual being kicked out. The court will say,
"Yes, you have successfully completed the program," or "No, you have not
successfully completed the program, for these reasons," and it will be up to the
court to determine.
You want to set up some form of yardstick by which one can
say, "I did not just go through the motions; I was able to meet the conditions
imposed by the court," and the court will acknowledge that. That will be the
person who has successfully completed the program.
The Chair: I see. We have another supplementary.
Senator Nolin: We aren't asking you these questions for
the pleasure of criticizing you. We have heard addictions treatment experts,
doctors, and not just from Vancouver, but from Toronto and people in this
region. Virtually all of them said: "what does ‘successfully' mean?" The thing
is you are at the intersection of the law and medicine. It is a health issue;
there isn't one addict going through a process for whom all the mechanisms are
tailored to the individual. There is no one size fits all.
Mr. Saint-Denis: Agreed.
Senator Nolin: The doctors said that it worked well as
long as they were able to adapt it, to each patient, the objective of the law.
"Let us be the judges", the doctors said. If the person goes through the
process, they will report to the judge, but the evaluation of whether it was
successful may not be the same from one doctor to another. To talk about curing
a disease, no doctor will say that the person is cured; maybe death will be the
cure. The person may have relapses, numerous witnesses have told us that.
Mr. Saint-Denis: That's right, but the phrase doesn't
mean that the person is cured.
Senator Nolin: What does it mean then, "successfully"?
Mr. Saint-Denis: It simply means that the person has
completed the program and complied with the conditions imposed by the court. The
court will never require that an individual be cured of an addiction.
Senator Nolin: We have public health experts who have
told us: "the word ‘successfully', we don't like that." They are entirely in
agreement with the idea of having alternative treatments, an alternative
Senator Joyal: We all agree with that.
Senator Nolin: Everyone agrees with that; we were the
first ones, 10 years ago, to agree with that. We just think there isn't enough,
but that's another subject. Here, at least, it is extended to provincial
The Chair: I had a question also.
My question also has to do with drug treatment programs. We
have heard testimony to the effect that drug treatment programs tend to be full.
There are more candidates for those programs, in at least a reasonable number of
places in Canada, than there are spaces available.
What happens to someone who is willing to enroll in a drug
treatment program and says to the judge, "I would be glad to do it, but there is
not a space?" Does that person just sit in remand for a year or two? What
Mr. Saint-Denis: I would rather doubt that. If there is
absolutely no space, then he does not get access to the program.
The Chair: In that case, he or she is stuck?
Mr. Saint-Denis: That would be correct. My understanding
is, however, that not all of the drug treatment court programs are filled. I
think some of the newer programs have space available.
Senator Joyal: I take exception. That is contradicted by
other witnesses. We have heard witnesses who do not corroborate your answer. I
The Chair: We have at least had testimony that, as I said
a moment ago, in a good many cases there are not spaces available. We are not
into the statistics here.
Mr. Saint-Denis: Please do not misunderstand me. My
understanding, for instance, is that in B.C. and Toronto, there are no spots
available. Those programs are running at 100 per cent capacity. With regard to
the newer courts, I was told — this goes back three or four months — that there
was capacity to take in more.
The Chair: The problem, of course, is that even with
newer programs, if they are any good, they will fill up quickly, will they not?
Mr. Saint-Denis: Yes, they will fill up quickly. However,
the individuals who make it into these programs, it is not an endless supply of
drug addicts. Drug addicts who have committed a drug offence using violence or
using a weapon, or who are part of an organized crime group, will get screened
out. There is not an endless supply of potential customers for these treatment
Senator Milne: I have a supplementary question.
The Chair: I was intending to give you the floor on a
second round, Senator Milne, so why not pretend that has happened.
Senator Milne: An organized crime group is three people.
Three drug addicts on the street is an organized crime group.
Mr. Saint-Denis: They have to do more than hang around on
a corner. They have to be involved in committing an offence of some sort.
Senator Milne: One is procuring it. I read you the list
of the four that normally take part in a drug transaction on the streets of the
downtown east side in Vancouver. That group is an organized crime group and
these are all addicts who are doing this to support their habit.
The Chair: Was that a question?
Senator Milne: I am offended by the constant use of
"organized crime group" as defined in the law, at which we are told this bill is
aimed. To me, it is clear that the bill will scoop up these poor people off the
streets of our cities who need help. They need medical care, they need all sorts
of things such as mental care, but they are not what people think of normally as
an organized crime group.
Mr. Saint-Denis: Point taken.
Senator Milne: These people will be the low-hanging fruit
that are scooped up.
We heard from a witness tonight, who was representing the
Canadian AIDS Society, who said that the average amount a medicinal marijuana
user would use in a month is approximately two ounces. Suppose this individual
was scooped up with two ounces en route between one of these compassion clubs
and home, what charge will that individual face if this bill is passed.
Mr. Saint-Denis: None; do they have an authorization to
possess under the medical access?
Senator Milne: There are few people in Canada who have
that proper authorization.
Mr. Saint-Denis: If they do not have authorization and
they are picked up, technically, the police will have discretion to either
charge or not charge. Are you saying the amount is the average consumption over
Senator Milne: This is what we were told.
Mr. Saint-Denis: If it is over a month, then at any one
time the amount of cannabis will be small. The peace officer will have a
decision to make; do I want to charge this individual who has a tiny amount or
not? If the officer charges them, this legislation does not come into play. The
individual is charged with possession and that is it.
Senator Milne: What about the second time that individual
is picked up?
Mr. Saint-Denis: It is still the same thing. This
legislation does not deal with possession per se. Individuals can be picked up
as many times as they want; it does not make it into this legislation.
Senator Milne: That is a bit of a comfort, I suppose.
Senator Nolin: I definitely agree with you, governments,
one by one, have stated doubts as to the therapeutic virtues of cannabis. To the
point that most of the time they have put the question to their medical
organizations, to the people with the authority, and the capacity, the
intelligence and the wisdom, to set aside partisanship and politics to really
determine whether the effects of cannabis are genuinely good. Who has answered
I was fascinated when you said that there is essentially a
kind of mythology around cannabis and you questioned the compassion clubs. Our
American colleagues approached the question with considerable doubt; nonetheless
they came to the conclusion that in fact cannabis has therapeutic virtues. The
Europeans said: "That's American, it's no good, we are going to do our own
research." What did the European medical research institute conclude, after
doing three years of evaluation? In fact, it is not benign, it is not
ineffectual, and yes, cannabis does have therapeutic effects.
Essentially, there is no question; unfortunately, there are
people who perpetuate what many Canadians, in their heart of hearts, in the
privacy of their homes, have concluded: yes, cannabis has virtues for medicinal
purposes. That is probably why 85 per cent of the population of Canada agrees
with medical marijuana. It is probably why, in spite of the law, people organize
compassion clubs, and grow cannabis, that it would be much more profitable to
sell on the ordinary black market, and then supply compassion clubs. Tell me,
are these people all crazy? Are they all doing it because they are a band of
true believers or they are blind to the facts? No.
I will conclude by saying that I think we have to include an
evaluation amendment, because this bill unfortunately has consequences that are
certainly unforeseeable. We will see over time. In fact that is why you have
agreed to a two-year evaluation amendment, which we consider a little short, but
we shall see. What do you think about it?
Mr. Saint-Denis: You are quite correct. Cannabis has
therapeutic characteristics, that is recognized. But it is not a miracle drug.
Senator Nolin: No one is claiming it is.
Senator Joyal: It is an analgesic.
Mr. Saint-Denis: In the compassion clubs, they don't know
exactly what ailments people want to alleviate or cure or mitigate, if you will,
with cannabis. Certainly in some cases, and in fact even in the United States, I
think it is for glaucoma, people use marijuana to alleviate that condition. And
there are undoubtedly others that have been recognized, as you say. But there is
nothing to suggest that in those compassion clubs they limit distribution to
those cases. In fact I am reasonable sure that is not the case.
The use of marijuana is permitted for a range of conditions;
some more justified than others, but the same approach isn't taken to cannabis
use for therapeutic purposes as is taken for other drugs that are just as
controlled, for example heroin, morphine, codeine, for which the precise dosage
is known, the strength and purity of the product. All those other substances
have gone through a rigorous system of scientific evaluations and production; we
know where we are going, we know where it comes from, we know what the
quantities are. We don't have those data for cannabis.
Senator Nolin: You know the answer to that. We both know
Mr. Saint-Denis: I know the answer to that.
Senator Nolin: Heroin, the poppy and its derivatives,
have been synthesized by scientific laboratories and they can reconstitute the
molecules and patent them. When it became possible to patent a THC molecule,
drugs were created. Now, we have had witnesses telling us that in the case of
cannabis, the product has to be natural and no one can patent that. We find
ourselves in a vicious circle.
Mr. Saint-Denis: Yes, but we are still having to deal
with the phenomenon of a drug that people want to use for therapeutic purposes
without knowing exactly what the quantities, the origins or the production are,
what happened between the point when the product was grown and the point when it
is manufactured, or rolled into cigarette form.
There are a lot of unknowns in this system and that could
cause problems at some point.
Senator Nolin: I will conclude with this: the Institute
of Medicine in the United States, INSERM in Europe, our committee, we have all
done this. We started with the same premises and we reached that conclusion.
Yes, there may be problems, but if we compare it to other
substances, it is not as serious. Forget what our report said. The people at the
Institute of Medicine in the United States have decided it systematically. The
danger in prohibiting the substance, we can have a lot of fun with that. We have
The Chair: The range of opinions is vast. However,
everyone on this committee has benefited from Senator Nolin's experience and
expertise in this matter, as we have benefited from your experience and
expertise this evening, Mr. Saint-Denis.
Mr. Saint-Denis: Thank you.
The Chair: We are grateful to you.
Mr. Saint-Denis: If I may say one thing, Senator Nolin
and I go back a fair bit, and I have to tell you that I have also benefited from
his expertise and the work he has done — and the work that his previous
committee has done, particularly in the area of cannabis.
The Chair: Thank you. Colleagues, we shall meet again in
this room at 10:45 tomorrow morning to conduct our clause-by-clause examination
of Bill C-15.