The Senate met at 9 a.m., the Speaker in the chair.
The Late Gary Francis McCauley
Hon. Nancy J. Hartling: Honourable senators, I rise today to pay tribute to Gary Francis McCauley, who died suddenly on May 13, 2018, at 78 years old in Ottawa. I was shocked when I read about his death on Facebook. I called Gary a friend and a mentor, and I know he will be missed by his family and friends. My sincere condolences to those who love him.
Gary was an Anglican priest, a member of Parliament from 1979 to 1984, an adjudicator with the Immigration and Refugee Board and the Veterans Review and Appeal Board.
He was also a novelist and an essayist with a quick and inventive sense of humour, a passion for the downtrodden and a compulsive attention to planning meals months in advance.
He has written three novels, beginning with Soldier Boys, the story of a young man who goes off to fight in the Second World War and comes home emotionally scarred. The novels which follow, Faith of Our Fathers and Morgan Le Fay, tell how the man’s damaged psyche affects his life and the life of his son.
Gary is survived by his sister Jane Sullivan; his former wife Dianne Archibald; his children, Randall, Tim and Heather; his loving partner and friend, Maire O’Callaghan; and his “purrfect” cats Daisy, Sadie and Casey Coal. They will be lost without his loving care.
When he was an MP in Moncton in the early 1980s, I had many occasions to work with him while obtaining federal grants for our fledgling non-profit agency working with single parents. Gary could be intimidating, asking critical questions — it prepared me a little for here — but was always concerned about social justice and the well-being of those living in poverty.
We received several grants from the federal government, and I will always remember Gary teaching me to think about outcomes. He visited our centre and showed compassion towards our clients and their children.
At the church where his family, friends and senators gathered last week, we chatted about Gary. He will be missed by many for his intelligence, caring and commitment to social justice. As I walked back to Parliament with Senator Downe after the visitation, we reminisced about Gary, how we knew him and what he meant to us.
That evening, friends gathered at a local pub to share stories, memories and to raise a glass to him.
I will leave you with these words written by Gary Francis McCauley:
Sad thoughts are mine,
for I must leave this place, this place I love.
I must leave: friends, cheer, good times, joy.
and sweet and bitter loves.
From all of this I must turn,
with heavy heart and glistening eye,
and trudge away up to the Spirit in the Sky.
Hon. Michael L. MacDonald: Honourable senators, I bring to your attention a matter of significant public interest, a development that jeopardizes Canada’s reputation abroad and undermines the fundamental freedoms Canadians expect us to protect and promote.
Lately, Communist Chinese authorities have been pressuring private companies into changing the designation for Taiwan to “Taipei CN”, that is, a province of China. The list of companies that have capitulated continues to grow and now includes major Canadian firms such as RBC and Air Canada.
Being Canada’s largest international airline at home and abroad, I find this particularly alarming. Air Canada is a company recognized around the world. It carries the name of our country and the Maple Leaf on its fuselage and, in effect, is a de facto carrier of Canadian values. Air Canada should strive to best reflect what our country and our people represent.
Taiwan has experienced a remarkable political and economic transition since 1949. A relatively poor, rural and non-democratic entity for most of its existence, today it a prosperous, highly urbanized, modern and democratic society.
What has been created in Taiwan in my lifetime is something worth celebrating. Taiwan is today an advanced society by any measurement of social progress. Whether it’s health care, education, quality of life or economic development, Taiwan is a world leader, worthy of emulation. Much of this progress is due to the freedoms they have put to good use — economic freedom, freedom of expression, freedom of the press and the freedom to choose those who govern you. All of these freedoms have taken root in Taiwan, but none of these freedoms can be found in Communist China.
The Beijing bullies have shown no hesitation in their aggressive behaviour to delegitimize Taiwanese democracy or even to impart territorial claims in the South China Sea, in direct contravention of international law.
With that said, I believe Canadian enterprises should also expect their government to have their back when foreign powers seek to manipulate and control our businesses in such a manner. We should be prepared to call out any third party that is actively attempting to interfere with the independent operations of Canadian businesses.
Yet the Trudeau government says nothing. Other governments and world leaders have been outspoken on this issue, so why should we not expect our government to stand up and do the same? Do Air Canada and RBC suspect they would have no public support from their government if they were to have refused China’s terms?
In a statement released by the Association of Taiwanese Organizations in Toronto, the Taiwanese-Canadian community has accused Air Canada of ignoring international law for the sake of commercial profit and has threatened to promote a boycott of the airline. Our government’s only response is to say it’s a private business matter.
The silence of Canada is unacceptable. We must stand up to regimes who seek to undermine human rights, especially in the face of profit, self-interest and in direct conflict with the right to fundamental freedoms.
On behalf of freedom-loving Canadians, I expect our government and private sector operations to do their part in defending and promoting the ideals of freedom and democracy. Taiwan is a free and democratic country, and it is essential that free and democratic countries like Canada defend Taiwan’s right to exist.
Session of the United Nations Commission on the Status of Women, March 13, 2018—Report Tabled
Hon. Salma Ataullahjan: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian Group of the Inter-Parliamentary Union respecting its participation at the 62nd session of the United Nations Commission on the Status of Women, held in New York, New York, United States of America, on March 13, 2018.
Inter-Parliamentary Union Assembly and Related Meetings, March 24-28, 2018—Report Tabled
Hon. Salma Ataullahjan: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian Delegation respecting its participation at the 138th Inter-Parliamentary Union assembly and related meetings held in Geneva, Switzerland, from March 24 to 28, 2018.
Hon. Larry W. Smith (Leader of the Opposition): I have a question that may not be answered today. It is something we would ask Senator Harder to talk to the powers that be whom you work with to maybe give us some insight.
Last year, the government allowed the Energy East pipeline project to fail. The pipeline would have moved western oil to eastern provinces, thereby increasing our energy security. Regrettably, when asked about Energy East in the other place earlier this week, the Prime Minister referred to it twice as “old news.” He kind of dispelled it categorically.
It may be old news to the Prime Minister, but it’s gathered renewed support in recent days from the Mayor of Saint John, New Brunswick, from the co-chief executive officer of J.D. Irving, Limited and from a Liberal member of Parliament from New Brunswick.
We receive each day into our country thousands of barrels, which translates into billions of dollars a year, from either Venezuela or Saudi Arabia. Venezuela, of course, is a country that has a dictatorship that probably doesn’t have the same capability of delivering oil in a cleaner way than even Canada. Look at the money we’re spending in foreign countries where we could have — and I say could have — the opportunity to be self-sufficient.
I would ask that you actually do some work to give us some transparency and feedback over time because we’ll keep asking this question. Will the government look seriously at the issue of energy self-sufficiency in Eastern Canada, which would provide more jobs and opportunities, not just for Eastern Canadians but for all Canadians?
Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for his question and for his ongoing interest in energy issues.
Obviously the Government of Canada has a role, but so does the private sector. The private sector makes certain decisions with respect to investments and projects. Implied in the question of the honourable senator is a suggestion of a more robust nationalization of effort. That clearly isn’t where the government’s intentions lie.
Let me assure the honourable senator that I will bring his concerns to the attention of those responsible for these matters and report back from time to time.
Senator Smith: I’d like to compliment you on your summer outfit, and I’m waiting for you to compliment me on mine.
Senator Harder: Keep waiting.
Senator Smith: I just received a note fresh off the press saying that we have 500,000 barrels a day that come into Eastern Canada. This is a serious issue. It’s great to say, “Let’s keep our oil in the ground and keep on buying,” but do you really want to support countries like Venezuela that treat people with absolutely no respect and have no rule of law?
Environment and Climate Change
Regulations to Encourage Business Investment
Hon. Larry W. Smith (Leader of the Opposition): Second — this goes back to prior governments — the issues of red tape and regulations have been a point that governments over time have always talked about: minimizing it, cutting it, making it simpler. Is there a way we can look at and analyze real steps that would enable business and attract business to come into our country? It’s great to say that the company made the decision not to do Energy East, but let’s be blunt: Regulations and all of the issues that blocked Energy East, and really applied to Trans Mountain, probably still exist. Will the government take an active stance to make it more attractive for business to come in, respecting the environmental concerns that exist in our country, and create a new balance?
Hon. Peter Harder (Government Representative in the Senate): Again, let me repeat that the Government of Canada believes that energy development and environmental protection go hand in hand and that appropriate regulation is absolutely in the best interests of Canadians. That is why the minister has brought forward enhancements to the environmental assessment process to ensure there are both appropriate regulation and a clearer path for those projects that are successful through the regulatory process to reaching conclusion.
I do think in this debate we have to constantly be mindful of two other things. One is that this is a global search for investment opportunities, so therefore there’s a challenge for that, and there’s also a North American marketplace that we have to be attentive to, and those are priorities of the Government of Canada. We have to work with our private sector, our regulators and provincial jurisdictions to ensure that Canada continues to be attractive to global investment, that we have markets, tidewater markets, for our products. That is why the Trans Mountain will be built.
Foreign Affairs and International Trade
Role of China in Domestic Affairs
Hon. Yonah Martin (Deputy Leader of the Opposition): I also have a question for the government leader in the Senate.
Senator Harder, in a recent report from CSIS, we learned that very serious concerns are being raised regarding China’s domestic influence in New Zealand and its use of threats and enticements to bring international business and political partners under its control. In light of your government’s decision to invest C$2.9 billion in the Chinese-run Asian Infrastructure Investment Bank, I believe that transparency on how Canadian tax dollars will be spent will be all the more critical and necessary.
In light of the spirit of transparency, I hope that the government will track the use of Canadian monies in projects abroad and that those details will be made available to Canadians and to this chamber.
Will the government be responding to the CSIS report to assure Canadians that what happened in New Zealand will not happen in Canada? Will that response be made available to this chamber?
Hon. Peter Harder (Government Representative in the Senate): Again, I thank the honourable senator for her question. Let me assure the Senate, first of all, that Canada’s participation alongside a number of like-minded countries with whom we share common values and are participating in the Asian Infrastructure Investment Bank has put in place the highest standards of oversight and project approval processes and transparency.
The minister has assured us in and outside of this chamber that Canada’s role in the Asian Infrastructure Investment Bank is entirely consistent with those practices. The Asian Infrastructure Investment Bank will obviously be part of the suite of opportunities that the Canadian enterprise will be able to participate in, particularly as the growth of the Asia infrastructure requirements takes place.
With respect to the specific question of the honourable senator, clearly the security and intelligence services of Canada remain vigilant, as they ought to be, as they are, and are advising the government appropriately. It would only be appropriate for the government to make announcements or otherwise reveal the intentions of the government in these matters to assure themselves that they were, in their announcements, not undermining the very security and intelligence we wish to protect.
Senator Martin: Yes, I realize that we have important international partners, and there are necessary, very good projects that will be undertaken through the funds. But $2.9 billion is a lot of money.
I’m concerned about keeping track of it because I think we have to follow the money, and it’s very important for Canadians to know where our money is being spent.
On the point of the CSIS report, it’s coming at a time when I’m also hearing about a lot of foreign money in our universities. There are funding shortfalls everywhere. That’s how we get certain projects done. I think the report was raising concerns shared by many Canadians, and it will be important for us to monitor very carefully. I hope that a response will be made by the government and that we will get a copy of that.
Senator Harder: Again, I don’t want to get into a dispute on the Asian Infrastructure Investment Bank, but let me say that Canada’s participation in the IMF and in the Breton Woods organizations is very much in Canada’s interest and continues to be in Canada’s interest. We participate in these international, multilateral agencies because it gives opportunities for Canadians to benefit from the projects and from the work of those organizations.
With respect to the question that was asked, let me remind honourable senators that this chamber in fact passed a law last year to establish a committee of parliamentarians to provide oversight in the intelligence and security area. That work is designed to ensure appropriate parliamentary involvement and oversight balanced with a need for security and enforcement of the requirements for non-disclosure of certain evidence and aspects of the work of our agencies.
I have confidence in the senators who are participating in that work. We ought to have confidence in the work of the parliamentary committee. It has reporting rights and obligations. Let’s see how that takes place.
ORDERS OF THE DAY
Business of the Senate
The Hon. the Speaker: Honourable senators, before we start debate on Bill C-45, let me remind you that today we are dealing with issues relating to the sale and distribution of cannabis, including matters such as procurement and storefront distribution, packaging, health warnings and advertising. As you know, speeches and amendments are to only deal with that theme. A senator can speak only once to the third reading motion today, but can also speak once to any amendment or subamendment moved. Each speech is limited to a maximum of ten minutes, including any questions. There has been agreement that there will be no extensions, so no such request should be made. If there is a request for a standing vote the bells will ring for 15 minutes, and the vote cannot be deferred.
Let me thank you once again, senators, for your cooperation.
Bill to Amend—Third Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Dean, seconded by the Honourable Senator Dupuis, for the third reading of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, as amended.
Hon. Judith Seidman: Honourable senators, questions about advertising and promotion are at the heart of our debate on Bill C-45.
The legal emergence of a burgeoning industry dedicated to the production of a product with demonstrated health harms should give us pause about the conditions in which that industry should be allowed to operate. Deloitte has estimated that the base retail market value for recreational marijuana could be as high as $22.6 billion. This exceeds the value of the legal market for both tobacco and alcohol, and it is in this context that we must consider questions about advertising, packaging and promotion of cannabis.
Of course, advertising and promotion are standard practices for any industry to increase its customer base. We are all too familiar with the marketing techniques used by alcohol and tobacco companies to maximize consumption of their products and consequently their profits. We have every indication that the Canadian cannabis industry will be no different. These companies are like any other: profit-driven and governed by a desire to create value for their shareholders.
Recent history has proven just how difficult it is to reign in these legal industries. We have experienced varying degrees of success in rolling back permissive advertising and promotion for alcohol and tobacco, although we have made much more progress with cigarettes.
However, we are now faced with a unique opportunity as legislators. We have a clean slate with a new market. If recreational cannabis is regulated strictly from the outset, we reduce the likelihood of setting up an ongoing conflict between government and an industry that is seeking to aggressively promote its products.
The Social Affairs Committee acknowledged this inevitability in its observation, calling on the government to impose a moratorium on the loosening of regulations on the branding, marketing and promotion of cannabis for 10 years. This observation was based on a recommendation from Drug Free Kids Canada, the same organization that government partnered with on its Cannabis Talk Kit for parents.
Indeed, the government has been told repeatedly that marketing restrictions will make or break the overall effectiveness of its system. Evidence gained over the years from our experience with the tobacco industry shows that partial restrictions on marketing, like the ones proposed in Bill C-45, are largely ineffective at discouraging use because companies just shift their advertising spend to other forms of non-banned marketing.
Honourable senators, that is why I am proposing an amendment to Bill C-45, brought forward by the Non-Smokers’ Rights Association, to address the issue of brand stretching, a marketing strategy that is effective in growing brand awareness to help increase consumption. In its current form, Bill C-45 contains an exception allowing for companies to distribute promotional products with their brand logo, with vague prohibitions on products that “could be appealing to young people.”
Nevertheless, we are already seeing a proliferation of these products with marijuana company logos emblazoned on T-shirts, backpacks and iPhone cases. To think that these products won’t develop a cachet among teenagers is delusional; we’ve seen this story before with tobacco. And we know that companies will count on lax enforcement of provisions, particularly those that require interpretation.
The exemption for brand stretching is an obvious loophole for brand promotion in a piece of legislation which claims to be based on principles of public health.
To quote Pippa Beck with the Non-Smokers’ Rights Association: “Permitting cannabis brand elements on T-shirts and ball caps, mugs, you name it, is not in keeping with a public health approach.”
Amending clause 17(6) of Bill C-45 to prohibit the use of cannabis brand elements on items that are not cannabis or cannabis accessories, regardless of whether they would be considered appealing to young people or associated with an attractive lifestyle, would close this loophole and reduce the possibility that cannabis companies will market to our kids by stealth.
Now, it was just a few months ago my honourable colleague, the sponsor of this bill, brought to our attention the report from the Centre for Addiction and Mental Health, CAMH. In debate at second reading in this chamber, he, the sponsor, pointed to this report as the rationale for the government’s proposal to legalize cannabis and referred to the report’s recommendations as “eminently solid, balanced and sensible advice.”
The report offers 10 basic principles to guide regulation of legal cannabis use, which should be considered a starting point, in other words, minimum requirements for a public health focused regulatory framework. Principle 6 states clearly, at a minimum, governments must “prohibit marketing, advertising and sponsorship.”
To quote at length from the CAMH report endorsed by my honourable colleague, the sponsor:
[A]s we know from tobacco and alcohol, private-sector actors in the legal cannabis market — like any profit-motivated entity — would seek to push the boundaries of health-focused regulation. But unlike tobacco and alcohol, in Canada we have the opportunity to pre-empt this conflict that exists between public health goals and profit motive:
“For most jurisdictions cannabis offers a blank canvas; an opportunity to learn from past errors . . . without a large-scale commercial industry resisting reform.”
It’s curious, then, that the sponsor of this bill abstained from voting on this amendment that would tighten restrictions on the industry when it was first introduced in the committee. It is stranger still that the CAMH report, cited for years by this government as an endorsement of its cannabis legalization project, seems to have disappeared from the CAMH website. No matter, I thank my colleague for providing me with a hard copy and every one of you as well.
The government says it doesn’t want to promote cannabis use, especially among young people. But Bill C-45 as currently written allows cannabis companies to give away branded T-shirts, hats and other items like iPhone cases. The provision is completely at odds with the stated purpose of the bill, and moreover, it is unenforceable. Who decides if an item is “appealing to young people?” Who will act to police proliferation of these products?
Honourable senators, let me quote Marc Paris from Drug Free Kids Canada once more:
The government’s approach to legalization of recreational cannabis was to better regulate and control the sale and distribution in order to protect our children. Let’s not leave a crack in the door for our kids to become targets of exploitation by big business.
Motion in Amendment Adopted
Hon. Judith Seidman: Therefore, honourable senators, in amendment, I move:
That Bill C-45, as amended, be not now read a third time, but that it be further amended in clause 17, on page 19, by deleting lines 16 to 27.
The Hon. the Speaker: In amendment, it was moved by the Honourable Senator Seidman, seconded by the Honourable Senator Housakos:
That Bill C-45 be not now read a third time, but that it be further amended in clause 17, on page 19, by deleting lines 16 to 27.
On debate, Senator Patterson.
Hon. Dennis Glen Patterson: Honourable senators, I rise today in support of the amendment presented by Senator Seidman for Bill C-45 — the reasonable amendment proposed by Senator Seidman — which was curiously defeated when it was presented to our Social Affairs Committee.
From the outset, this government has made it clear that it seeks to mitigate the risks to young people. We heard this repeatedly from Parliamentary Secretary Bill Blair. This bill is about protecting young people from drug dealers and from bad product. This will be of benefit to the young people who form a majority of the population in my region of Nunavut. You heard that I went through Nunavut consulting on the bill.
Throughout my entire tour in Nunavut, elders, councillors and community members asked me: How can we better protect our youth? Throughout the studies of this bill, medical experts have told us that marijuana is harmful to the developing brain up to the age of 25. Scientific journals such as The Lancet and Neuroscience Volume warn that prolonged marijuana use can lead to or exacerbate psychoses and may increase the risk of developing schizophrenia.
We know that Aboriginal youth, who are all too often dealing with trauma, with the intergenerational impact of residential schools and with relocation, are vulnerable to schizophrenia, anxiety and depression from marijuana use. We hear that among Aboriginal youth who are taking treatment for addictions, there’s a very high correlation with cannabis use.
So, colleagues, I implore you: Why would we not do everything in our power to ensure that young people are not being exposed to marijuana, and are not being made to think it’s okay and normal by powerful advertising interests? If brand elements are allowed on non-cannabis goods and accessories, will we not be normalizing and even glamourizing this product?
As we have heard, clause 17(e) of the bill has said we will be restricting advertising for products that are “associated with a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.” However, I ask you this: If we allow brand elements on T-shirts, ball caps, bags, and so forth, who is to stop a young person from purchasing such an item? Who will stop the celebrities and adults — which may even include role models such as older siblings, parents and other family members — from purchasing and sporting these goods? The Charter certainly allows them the freedom of expression to use and wear these items as they see fit. Does that not send a message about the glamour, recreation, excitement, vitality, risk or daring associated with this product?
During clause-by-clause consideration of this bill at committee, an official from Health Canada told us that this provision is consistent with what is contained in the Tobacco Act. However, colleagues, our restrictions on marketing and promotion in that act fail to meet our obligations under Article 13 of the World Health Organization’s Framework Convention on Tobacco Control, to which we are a party. Canada signed on to the Convention on July 15, 2003 and ratified it on November 26, 2004.
One main principle outlined within the guidelines to Article 13 of the Convention published by the World Health Organization states that:
3.(b) An effective ban on tobacco advertising, promotion and sponsorship should, as recognized by Parties to the Convention in Articles 13.1 and 13.2, be comprehensive and applicable to all tobacco advertising, promotion and sponsorship.
I emphasize the word “comprehensive.” In their overview, they go on to explain the reasons for stressing the words “comprehensive” and “all” in this principle:
5. A ban on tobacco advertising, promotion and sponsorship is effective only if it has a broad scope. Contemporary marketing communication involves an integrated approach to advertising and promoting the purchase and sale of goods... If only certain forms of direct tobacco advertising are prohibited, the tobacco industry inevitably shifts its expenditure to other advertising, promotion and sponsorship strategies, using creative, indirect ways to promote tobacco products and tobacco use, especially among young people.
6. Therefore, the effect of a partial advertising ban on tobacco consumption is limited.
We must correct the same hole in this legislation, honourable senators. So I support any amendments that seek to limit the appeal of this drug to young people.
According to our international obligations, we’re not doing enough to protect young people from tobacco advertising. Why, then, would we adopt the same approach for marijuana? We have, as Senator Seidman said, a clean slate and an opportunity to get this right — an opportunity to make this bill better.
So let’s get it right and support this amendment. If I may, Your Honour, in closing, I am curious about why the sponsor of this bill would abstain on this issue in committee. I hope it’s not because there’s a mantra from the other place about no amendments. I would hope the Senate would be open to thoughtful, fair and important public policy principles, and I would hope they would be open to good ideas for improving the bill, whatever corner of this chamber they might come from. Thank you, honourable senators.
Hon. Tony Dean: Honourable senators, let me start off by telling you how pleased I am that we are having this debate today under these rules and these circumstances. You know I’ve been an advocate of this approach, and yesterday, and I think starting off today, we’re seeing all the richness and benefits of themed and organized debates.
I have a couple of responses before I speak to this motion. Senator Seidman correctly recalls that I distributed the CAMH report from 2014 and recommendations, as one of an extensive bibliography of research materials that I have sent out to all senators. I don’t recall mentioning or purporting that this was a key plank in the government’s creation and rationale for Bill C-45. I just thought it was an interesting report, and it does seem to have caught the attention of a number of senators, so I’m pleased about that.
Senator Patterson raises the age 25 issue in relation to his discussion, and I’ll take this opportunity to say that there has been some evidence about brain development and age 25. There has also been evidence that is much more compelling and that all of us are of one mind on, that the greatest risk of cannabis use is to younger teens who use the drug frequently and extensively. We know that they use it a lot because of consumption statistics. Even then, the evidence about long-term impact is a little bit unclear.
We also understand from testimony at Social Affairs that there’s a steady drop-off in risk of use of cannabis as people approach later teens. There is a vagueness and uncertainty around this magic number of age 25, so I make that point.
Now to the motion: The Task Force on Cannabis emphasized the importance of restrictions on promotion and advertising. It talked a lot about this. It consulted widely with other jurisdictions that have stepped there before us — particularly U.S. states. One of the things it learned is that most of those U.S. states went very light on restricting advertising, promotions and branding in the early years, and they paid a predictable price for that. That wasn’t a price that this government, in developing this legislation, was prepared to pay. That wasn’t a risk it was prepared to take.
We have in Bill C-45 an extensive set of restrictions and proposed regulation on advertising and branding. These move extensively beyond anything that U.S. states have done, even when they started to catch up on this. We’re out there on the leading edge in terms of our comparators.
This is a made-in-Canada approach to cannabis reform — not a made-in-Colorado approach; it’s a made-in-Canada approach, and that’s what we would all want it to be, and that’s what all Canadians would want it to be. This approach represents extensive research and analysis, it takes the precautionary approach emphasized in the report of the task force, and it’s a proposal that was reviewed at the Social Affairs Committee in clause-by-clause consideration and that received considerable attention, as well it should.
At the end of the day, the proposed amendment was not supported, and my view is it shouldn’t be supported here, either. I am confident that Canadians will be well protected by the current proposals.
And I believe there has been a lack of clarity about my position on this. It was pointed out that I abstained on this motion at the Social Affairs Committee. If it’s important that my position be clarified, I can tell you now I’ll be opposing this motion today. Thanks very much.
The Hon. the Speaker: Senator Dean, will you take a question?
Senator Dean: Yes.
Senator Patterson: Senator Dean, you did not address the point that was made that the ban on advertising is only effective if it has a broad scope. This is what the World Health Organization says about tobacco advertising. It applies equally to marijuana advertising. Why are you opposing an amendment that would make for a broader scope to catch all forms of advertising and promotion of this high-risk product to young people? You didn’t address that in your speech.
Senator Dean: Let me put it this way and put it simply: I believe we have an extensive, comprehensive and restrictive set of provisions. My view is that this is a step too far. I understand, for example, that in my own province cannabis stores have developed their own brand. It’s very simple and benign, and most people have described it as an “unattractive” brand. That brand that has been the subject of considerable research and investment and will be ready in stores would be disallowed by this provision. So we’re talking about the extreme edges of branding here, and I think it’s a step too far. It’s simply about that.
There are many virtuous international conventions that I would love Canada to sign on to, and we will always find an area where we are not absolutely perfect. However, I think the government has done a good job here, and I am content with it.
Senator Patterson: Senator Dean, you’re saying that these cannabis companies have spent money developing logos and have invested capital from offshore money sources of dubious provenance, and the interests of the cannabis producers, who have already spent money developing logos, prevail over the interests of protecting young people from the advertising of those logos, which you say are not effective, on T-shirts, ball caps, purses, and hoodies? For the interests of the producers you’re protecting and denying this amendment?
Senator Dean: I wasn’t clear, senator. I wasn’t here the day before yesterday when my testimony at the Social Affairs Committee was mischaracterized. I wasn’t in the chamber. I am here today, and you have mischaracterized what I just said. What I said was that retail stores in Ontario — the proposed retail stores in Ontario — have developed a brand for their stores.
Senator Patterson: At great expense.
Senator Dean: At expense. I wasn’t talking about cannabis companies, private companies. I was talking about a public agency of the Government of Ontario, which has established its own legislation to regulate and retail cannabis, as it has been empowered to do by Bill C-45, that is acting wholly within the responsibility of its authorities, having produced a relatively benign brand for its cannabis stores. I’m saying that is an example of something that would now have to be removed and revisited as a result of this amendment. I’m saying this amendment is a step too far.
In closing, I would add that I will be standing and objecting when other comments that I make in here or any other place are mischaracterized.
The Hon. the Speaker: Senator Dean’s time has expired. I have a list of other senators who wish to speak, and I’m following that list right now. I’ll have you on that list, Senator Pratte, and I have you on it, Senator Oh.
Hon. Art Eggleton: Colleagues, I think the proponents of this motion have it wrong, because in clause 17, in fact, there is an absolute prohibition on advertising, promotion, all of these things that are very similar to what is done now on tobacco. Subclause 6 then walks back a bit on that to allow for reasonable provision of information so that people who are legally buying in a store or by mail can get the information they need as to the kind of product involved.
Our committee was very clear — very clear — that it did not want anything that was going to appeal to youth; it did not want anything that was going to promote lifestyle changes. And that’s what we have in this bill.
Ball caps and T-shirts are not going to be allowed because they are part of lifestyle changes. They are not going to be allowed in the general public domain. They could wear T-shirts and ball caps inside the stores, but the only people that can shop in the stores are adults that are legally able to buy the product. If there is promotion within a store, it is not, in fact, going to affect youth. It is not marketed to youth.
However, if you go with this amendment, it will take away even that possibility. Stores, for example, in Ontario are going to be operated by the LCBO. You see their logo all the time on liquor and wine stores. They wouldn’t be able to put one on if we pass this amendment. Goodness knows what would be on the stores. It will be a big question mark, so you wouldn’t know what it was.
However, even allowing a government agency to put its logo on would be something that gets caught up in this. That’s why we didn’t support it. Yes, we agree in principle that we don’t want the lifestyle advertising and we don’t want the advertising to youth, but we don’t want to be so restrictive in how we do that that it affects freedom of expression and freedom of providing the kind of information that adults legally buying this would require. The way they’re putting all this together, they are mischaracterizing this.
Senator Patterson, I found your admonishment of us in terms of what you call the mantra of the federal government wanting to have this — I know you’re not listening. You never do.
Some Hon. Senators: Oh, oh!
Senator Eggleton: Sorry about that. You are right. I agree.
But do you know what I remember about you and the rest of your colleagues? During the last Parliament, you voted for absolutely everything Stephen Harper wanted. You wouldn’t even consider an amendment to anything at any time, no matter what the argument was.
Some Hon. Senators: Oh, oh!
Senator Eggleton: Sorry, I roused them all up.
Anyway, we have what I think is the right balance that protects our youth; the right balance that allows for very limited kinds of information being provided about the product so that people can make choices on the different brands in terms of the quality of the product. But that’s only to adults. We have to keep it away from children. We have to ensure that we don’t allow lifestyle promotion, ball caps, rock stars or anybody else being a part of that. Yes, some of them wanted to do that, but they’re not going to be allowed. The regulations, when they come out, will cover this to a greater extent than what we see now in terms of the bill.
I think the amendment is wrong, and that’s why the Social Affairs Committee came to the conclusion that it is tight enough to accomplish what 100 per cent of us want to be accomplished in this chamber.
The Hon. the Speaker: Do you have a question, Senator Seidman?
Senator Seidman: Yes, I do.
The Hon. the Speaker: You have a couple of minutes.
Senator Eggleton, will you take a question?
Senator Eggleton: Yes.
Senator Seidman: I think we should be careful not to get caught in a red herring here. I don’t think we’re talking about the logo on the Ontario Cannabis Store. It’s very clear in its current form, Bill C-45 contains an exception, and that is the clause I’m asking to remove. The exception allows for companies to distribute promotional products with their brand logo, with vague prohibitions on products that “could be appealing to young persons.”
So who will decide what is appealing to young people? That is what the clause that is required to be removed, according to this amendment, says:
(b) a thing that there are reasonable grounds to believe could be appealing to young persons . . . .
It is the only kind of exception that could be made to a company promoting, displaying their brand element on any kind of accessory, a T-shirt, a ball cap, whatever it is.
So who is going to decide? You tell me how it is going to be decided that something is appealing to young persons.
Senator Eggleton: It is the same as tobacco or alcohol. Those kinds of challenges exist. Health Canada is going to give the advice. In fact, it has been collecting a lot of information in its consultation on the regulations. The regulations are going to get into that kind of detail. It is formally part of the regulations, and that’s where you’re going to see it. I think the instructions that are given in this legislation are very sound to that effect.
The Hon. the Speaker: We have time for one more question.
Hon. Mary Coyle: Thank you very much, Senator Eggleton. I, too, am very concerned about advertising and promotion, particularly to young people.
And thank you, Senator Seidman. I think everybody in this room shares your concerns.
When I look at paragraphs (a), (b), and (c) in this clause of the legislation, I hear two things. Will this prohibit the distribution, either by sale or by gifting, of swag, T-shirts, hats, you name it, things that will be cool for young people? Will this prohibit the distribution of those things? That’s my first question.
My second question is in regard to sponsorship, which was also mentioned. Is it possible that there will be a Canopy Growth jazz festival? Just so we clarify these things, where do these appear in the legislation?
Senator Eggleton: No, I don’t think there will be. I think you have to look at the regulations. There won’t be. The regulations are where I think you will see the detail of how that is prohibited.
Hon. Pamela Wallin: I would like to follow up, or should I ask Senator Eggleton to ask for more time?
The Hon. the Speaker: You will not get more time. We’re done.
Senator Wallin: Can we go back, if there’s a moment, to Senator Coyle’s question? Your words were “I don’t think,” and it will be dealt with —
The Hon. the Speaker: I’m sorry, Senator Wallin, but Senator Eggleton’s time has expired.
Hon. A. Raynell Andreychuk: I’m sure Senator Wallin can put herself on the list and have a debate.
I want to strongly support Senator Seidman for a couple of reasons. It is about youth. There is no question that youth are very much influenced by adults. If it’s cachet for an adult, it will be cachet for young people. We know that by the trends of what we wear, what we do, et cetera.
What I’m concerned about is that too many of us have not learned from what happened with alcohol and cigarettes. We thought we could make restrictions, but every time we restricted, the industry knew how to stretch the limits a little further.
I want to commend previous Liberal and Conservative governments that have had to struggle with this, because you cannot anticipate where other people or other industries are going to go.
We think we’ve covered it all, but this word “stretching” intrigues me and I think encapsulates what business does. That’s what they do. So if we restrict particularly, they are going to find a way to be more ingenious if they’re good business people. That is a natural tension that will continue to grow.
As Senator Eggleton says, we’re giving instructions. The devil is in the details of the regulations. I don’t believe that the government will get it right the first time. People are very ingenious; companies are very ingenious. Why wouldn’t we give instructions that a signal of stretching — that ball caps sold here are going to end up somewhere else? I’m not even worried about that. Just in the last week, shops are showing ingenuity in cachet cases and all the trendy things that we all want, and they’re going to put cannabis in there. Don’t you think the young people are going to be the first to want to be on the first trend of these things?
What would be the difficulty of putting this in and then leaving the discretion fully to the government to put that in regulations? We’re not binding their hands; we’re giving them one more tool.
Some Hon. Senators: Hear, hear!
Hon. Larry W. Smith (Leader of the Opposition): I’ve been listening and have just a couple of thoughts on perspective. Remember when you were 15 or 16 years old and you had your first drink? I’m not trying to overdramatize this. The reason you got drunk is you drank too much, and then you learned over time. It has happened to girls and boys, to each of us, and we had to make a determination of how far we went. As we get older, you can see people who went too far — your friends, my friends — and I saw a lot of that as a professional athlete, but a lot of that was my friends. They went too far because there's a risk with alcohol.
Cigarettes. It was cool, Lucky Strike and Camel. You watched the cowboys smoking; it was really cool to smoke. Post-war, people smoked excessively.
But there’s a risk. When you get involved with cigarettes, alcohol or drugs, how far do you go? People say they can control it.
Listening to Senator Lankin the other day, she talked about different points of view. The question is, how far do you go with an amendment or a rule that Senator Seidman has proposed? Then the question is, is it better to err in putting something that may be more stringent at the beginning or you manage it? If I understand Senator Dean, he’s saying, in his perspective, that we’ll put something in, but we’ll manage it. I understand that.
We saw historically what happened with cigarettes and alcohol. One of the biggest problems today with alcohol is women aged 18 to 35 — and I have personal experience in this — binge drinking because of the way society works and whatever.
The issue is how far do we go with this now? Is it better to err in something that may be — I’m not saying more restrictive. In the professional sports business, I can remember, as a player and then as an administrator, as the commissioner and running a team for 12 years, how these various people come and sell sponsorship. Don’t ever bet your buck that they’re not going to create opportunity to sell their product, whether directly or indirectly, whether it’s sponsoring some activity that you’re sponsoring for some form of a youth group or young people in the 18 to 25 age bracket. People are great at marketing. We understand that. The issue is, how far do you go?
As an individual who has seen a lot of different situations in life with people and the influence of booze, cigarettes and now drugs, it may be appropriate for us to say, “Hey, let’s maybe be tougher,” because we know, as tough as we’re going to be, the marketers are going to be analyzing every word that we put in any form of a rule or regulation and say, “How can we beat this to get our product to market?” If we’re so naïve not to believe that, there’s an issue in terms of our judgment.
All I’m asking is, whatever way you want to go, let’s go the way that we want to protect young people who can be influenced. We all know, as we get older, hopefully we’ve made the choices to decide how far we’re going to go, whether it is cigarettes, booze or drugs, but it may be an opportunity for us to set up something now because they’re going to come after it. Don’t be naive to think they won’t. We can adjust later.
I’d rather do that than say, “Oh God, we’ll put it in, we’ll have regulations, but you know what? We’ll amend it if we have to amend it going forward.” There are two thoughts in that. I’d rather be safer now because even by being “safer now,” there’s risk. It’s all how you are going to manage risk.
Senator Seidman has something that is balanced and will give people the opportunity. When you put it into bureaucratic hands to develop the rules, what are those people going to be thinking? They’re making the rules and regulations. As everyone says that there are different perspectives of regulations, but what’s our perspective? What’s your perspective? What do you want? At the end of the day, what will you be measured by doing, especially with this, which is fundamentally important to our society? Just a thought.
The Hon. the Speaker pro tempore: Senator Lankin, you have a question?
Hon. Frances Lankin: Yes. Will you accept a question?
Senator Smith: Sure.
Senator Lankin: Thank you for your contribution. I agree with a lot of what you had to say. I’m sure you are aware, however, with respect to sponsorships, that there’s a provision in the legislation that prohibits that with respect to naming facilities, sports arenas and things like that. There’s a provision that makes that illegal to do. You can’t use foreign media to advertise. There’s a lot in here.
Do you accept, first of all, that the government, in its approach and in all of its proclamations and in how it has put together its draft regulations, which have been circulated, has attempted to address this issue and is on side with everything you’ve said? If so, I put your question back to you: What’s the balance?
I agree with absolutely all of the intent of what Senator Seidman is attempting to do. The problem is that the language is not good language that’s been brought forward.
If this is unworkable and gets defeated or sent back from the other side, how have we moved this forward? Do you accept passing an amendment now that is poorly worded and won’t accomplish what it sets out to do?
Senator Seidman: I’m sorry. Can I answer the question?
The Hon. the Speaker pro tempore: Excuse me, Senator Seidman. Senator Smith was the last speaker; you cannot answer the question.
Senator Smith: Honourable senator, thank you for the question. This is about how far we go with the rules at this point. How far do we go with this particular rule at this particular time?
I have to tell you, having spent 25 years in professional sport in marketing, and understanding the ability of people to dissect rules and regulations and to find ways inside to influence organizations of all levels to get their product in is outstanding. All I’m saying now is do you want to maybe be tighter at the beginning as opposed to saying, five years from now, when there’s a study done by the government and we’re looking at what’s transpired, and there’s a problem, and we go, “Oops”? Is it better to take a look at it now? I’m not being partisan; I’m trying to be practical. Is it better to look at it now or do you look at it later?
Based on the history of tobacco and booze, it could be better to look at it now. How do we manage that? Plus, there’s a trust issue with some of the people who may be making up the regulations. I’m not sure I trust some of the folks who may be, with all good intent, making up the regulations because it’s a judgment issue. What’s our judgment going to be?
I understand the perspectives of both sides, but I’m saying that it may be more appropriate to be a little tougher now than later. It’s all in how you manage the approach.
Senator Lankin: Point of order.
The Hon. the Speaker pro tempore: I’m going to give Senator Munson a chance.
Senator Lankin: Point of order.
The Hon. the Speaker pro tempore: Point of order?
Senator Lankin: I’m sorry, Madam Chair. Please correct me if this is not an appropriate point of order. I misstated and mischaracterized Senator Seidman’s amendment when I said that the wording was poor. It is an amendment that deletes wording, and the impact of that is not well understood. That is the way I should have said that, so my apologies to her.
The Hon. the Speaker pro tempore: Senator Munson, you have 40 seconds.
Hon. Jim Munson: Senator Smith, would you accept a question? You say you may not have trust in the people who make the regulations, so are you trusting the people who don’t believe in regulations that are serving up marijuana, hashish, you name it, in the back alleys, in backyards, with no regulation, children having no idea what kind of marijuana they’re getting? Are you saying that you’re in favour of the status quo when regulations can actually be put in place so that this can be managed from a health and educational perspective? Look at the consumption going on today. It’s not working.
Senator Smith: As we are both former athletes, I find that an interesting proposition. You’re asking if I believe in regulation. I believe in regulation. What I’m saying is that as a group, as we look at this, the issue is how far you’re going to go in terms of any form of prohibition.
All I’m saying to you is that based on my experience in professional sport and business —
The Hon. the Speaker pro tempore: Senator Smith, I’m so sorry to cut you off, but your time is up. No, your time is up. Everybody has to obey the rules, including you. I’m sorry.
Hon. Victor Oh: Honourable colleagues, I rise today to speak in favour of the amendment introduced by Senator Seidman to address the issue of brand stretching, a marketing strategy used by companies to launch products in an unrelated and different product category in order to increase and leverage brand equity.
An example of this strategy would be the Guinness or Corona brand of beer selling shirts, hats and other merchandise to the general public often at stores such as Walmart or other popular retailers.
Currently, Bill C-45 prohibits cannabis companies from publishing, broadcasting or otherwise disseminating promotion of cannabis or related accessories or services if they are (a) associated with young persons, (b) appealing to young persons or (c) associated with a way of life that includes glamour, recreation, excitement, vitality, risk or daring.
There is a widespread concern that these rules on marketing and advertising are too vague and can be easily circumvented. For example, some stakeholders have warned that it is unclear whether a commercial could air before a TV show or movie that is intended for adult audiences or how Internet ads would be policed.
Health Canada has noted that the provinces can introduce additional rules, but as Professor Lindsay Meredith from Simon Fraser University has publicly stated, offloading it to the provinces is not the answer. It can lead to commercials that comply with the rules in one province being shown in another where they do not.
Some of you may say cannabis companies that violate the rules on marketing and advertising could face licence suspensions, revocations or fines. This is true, but it is only an after-the-fact measure.
We are talking about an industry with a base retail market value of over $20 billion. What is a $1 million fine to a company such as Canopy Growth with a market value of $5.8 billion, which far surpasses, for example, Bombardier, if they can easily make up their losses?
Ultimately, we need to remember that our goal here is not to help companies make their shareholders profitable but to prioritize above all the health and well-being of Canadians. That’s the intended priority of the federal government, or is it not?
Senator Seidman has already noted that the Standing Senate Committee on Social Affairs, Science and Technology was warned that these provisions are contrary to the public health approach being launched by the federal government, including from the Non-Smokers’ Rights Association and by Professor David Hammond of the University of Waterloo.
Additionally, an article published by the Toronto Star noted that since cannabis companies will be unable to rely on broadcast ads, billboards and flashy packaging often used to promote new products, they are already seeking to push the rules through brand stretching.
The strategies being adopted by cannabis companies include contracts with celebrities, branded mindfulness sessions, mobile promotions and loyalty campaigns focused on return customers, cannabis-flavoured products and the use of augmented reality to allow customers to view through the lens of a smartphone different elements of the package and access brand information.
While the use of a person, character or animal, real or fictional, is prohibited, cannabis companies, such as Beleave Inc. and Canopy Growth Corporation have signed up celebrity investors to endorse their stock but not their cannabis product or brand. Doing so has effectively enabled them to circumvent the rules well in advance of the drug becoming legally available throughout our country.
It would be truly irresponsible for us to ignore that brand stretching will result in the creation of products that young persons will find attractive. There is already a market for cannabis apparel brand for enthusiasts of all ages, and this market will only become bigger once this legislation comes into effect.
Colleagues, I come from a business background. It is abundantly clear to me that cannabis companies, like any other companies, have a duty to maximize corporate profits in order to increase shareholder value. The key priority of these companies is not the health and well-being of Canadians but rather the long-term sustainability and prosperity of their brand. It is our job as legislators to put the interests of Canadians front and centre.
This is a new industry, and we have a unique opportunity to prioritize the health of Canadians from the outset. We simply cannot support lenient marketing and advertising rules that will undermine the stated purpose of this bill:
. . . to protect public health and public safety and, in particular, to protect the health of young persons by restricting their access to cannabis; . . . deter illicit activities in relation to cannabis . . .; reduce the burden on the criminal justice system. . .; and . . . enhance public awareness of the health risks associated with cannabis use.
Bill Blair himself, the Parliamentary Secretary to the Minister of Justice and the Attorney General of Canada and to the Minister of Health, has been quoted as saying, “This is really predicated entirely upon a public health model, and not a commercial model.” If that is truly the case, this amendment needs our support.
Colleagues, cannabis is not a safe drug, and it is harmful to public health and safety. This is an indisputable fact. I encourage each of you to reflect on this amendment. I trust that you will find the arguments in support commonsensical and pragmatic.
Senator Patterson: Your Honour, I rise on a point of order at almost the first opportunity. It has to do with a sharp and taxing attack on a senator.
I was just specifically accused of never listening, Your Honour, by an honourable senator. I don’t want to have that on the record. I don’t think it’s appropriate parliamentary language. I am actually capable of more than one task at once.
Yes, I was not in my chair when Senator Eggleton was speaking, but I have two ears, and with one ear I was listening intently to what he said.
Your Honour, I would like to ask that the unparliamentary language which suggests I am not doing my parliamentary duty by never listening be withdrawn.
The Hon. the Speaker pro tempore: Senator Eggleton, do you have anything to say?
Senator Eggleton: Yes, I withdraw it. I was frustrated because I couldn’t get his attention, so I said something I shouldn’t have said. I apologize, and I withdraw it. It is unparliamentary; you are quite correct.
Hon. Senators: Hear, hear!
Hon. André Pratte: I just want to make a couple of points. First of all, I think it’s important to note that the subsection that the amendment proposes to delete is not only similar or parallel in the Tobacco Act, it’s exactly the same wording in the Tobacco Act.
If you go to sections 27 and 28 in the present Tobacco Act — and as it will be amended in Bill S-5, it is quite similar — if I read it, it would be too long, but it’s the exact same wording. This begs the question: If this isn’t in the Tobacco Act, why would we have more stringent regulation for cannabis than we have for tobacco? Why would we allow this type of extremely limited brand promotion for cannabis? Why would we allow it for tobacco and not for cannabis, as it’s demonstrated that tobacco is much more dangerous for your health than cannabis is?
Cannabis will be a legal product, and we want the legal market to work. We cannot apprehensively say that that the illicit market will continue to operate despite the legalization, and at the same time want to make it more difficult for the legal market to operate. We have to make sure that the legal market can run reasonably well, and one way to do so is to allow legal cannabis producers to do a reasonable amount of advertising — limited and controlled, but reasonable — to adults, to actual consumers, provided that the advertising is for information purposes and is targeted only to adults. This is what the act, and in particular the subsection in question, will allow.
We’ve had a lot of discussion lately in this chamber about freedom of expression, and we’re all in favour of freedom of expression. The only difference we’ve really had in this chamber is that on the other side, they have been the champions of unlimited freedom of expression. On this side, we’ve said there are sometimes limits to freedom of expression. I believe there are sometimes limits to freedom of expression, but we’re all in favour of freedom of expression.
Part of freedom of expression, as recognized by the Supreme Court, is commercial freedom of expression. Let me quote a classic decision of the Supreme Court from 30 years ago. It is Ford v. Quebec (Attorney General), 1988.
Commercial expression, like political expression, is one of the forms of expression that is deserving of constitutional protection because it serves individual and societal values in a free and democratic society. Indeed, over and above its intrinsic value as expression, commercial expression, which protects listeners as well as speakers, plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self-fulfillment and personal autonomy.
We can’t simply take away the right of legal producers of cannabis to any kind of promotion. We can limit it with very stringent criteria, which this bill does, but we can’t take it away completely to address their adult consumers.
Finally, if you go back to the subsection that the amendment proposes to delete, it begins with “subject to regulations,” which means if ever there is some abuse of brand promotion on some objects that are not associated or cannot be reasonably believed to appeal to young persons, then government can rapidly intervene through the regulatory process.
Now, I know the Leader of the Opposition doesn’t believe in people who make regulations, but I have confidence in the officials who make regulations. I trust them. I know that sometimes they can make mistakes, but let’s be honest, we make mistakes also. In general, I have confidence in the officials of the Government of Canada. I think they have the interests of the people of Canada at heart, and the great majority of the time they do the right thing. That is why I oppose the amendment.
Some Hon. Senators: Hear, hear!
Senator Seidman: Senator, will you take a question?
Senator Pratte: Of course.
Senator Seidman: I know you participated quite a bit in our hearings on the Social Committee, so I will respect your interest and concerns on these matters. But, in fact, the Centre for Addiction and Mental Health report that I referred to answers your question about the Tobacco Act and why we would make this more stringent than the Tobacco Act. In fact, they say we have a unique opportunity because we’re regulating a new product, and it gives us a blank canvas to learn from past errors. That was what this report from CAMH told us. That was what many scientific experts from the universities told us.
You are aware, probably, and I might ask if you remember testimony we heard that Canadian kids’ risk perception of cannabis is much lower than their risk perception of tobacco. All the more reason to start with more restrictive legislation, because you really can’t put the genie back in the bottle, as we have heard many times.
Senator Pratte: Yes, but I don’t believe in this blank slate. I think if there was something that we didn’t like in the Tobacco Act, we could simply change it. If governments in the past believed that the Tobacco Act should be changed, they could have changed it.
I personally want the legal market to work. I want companies that legally produce cannabis to be able to do some promotion, because I want it to work. I want the illicit market to be reduced as much as possible. If we prohibit them from doing any promotion whatsoever, the legal market will not work.
Senator Seidman: Senator, are you aware that in fact the cannabis producers will be able to do all the marketing they want, inside the shops where cannabis is sold, for information purposes? This amendment deals with a very different situation. Are you aware of that?
Senator Pratte: Yes.
Senator Seidman: Thank you.
Senator Patterson: Senator Pratte — if you’d take my question — I thank you for admitting that regulators can make mistakes. What I’d like to know is this: With respect our duty as parliamentarians, with there being no provision in Bill C-45 for parliamentary scrutiny of regulations, if regulators make mistakes how are we to correct those mistakes and how are we to know about them?
Senator Pratte: I am pretty certain that if they do make mistakes, we’ll know about it, and we’ll pressure the government to correct those mistakes, like usually happens. Of course, regulators do make mistakes from time to time, as do we.
Hon. Claude Carignan: Senator Pratte, you spoke to us about the Ford decision. Could you tell us about the RJR-MacDonald Inc. decision that the Supreme Court handed down in 2017?
Senator Pratte: It is clear that the Supreme Court also recognized the right to impose very stringent limits on the promotion of tobacco products. There is no doubt about that. However, this does not change the fact that freedom of commercial expression is recognized and that we cannot impose very stringent limits that would fully deprive cannabis companies of their right to promote their products. The limits set out in Bill C-45 are exactly the same as those established in the Tobacco Act.
The Hon. the Speaker: I’m sorry, but Senator Pratte’s time has expired.
Senator Wallin, on debate.
Senator Wallin: I really just have a question.
As someone who did not sit through all of the committee hearings, we sit here today and this debate this morning is very important to us. I read an article from the newspaper this morning about the health minister’s concerns and warnings on the use of tobacco. An estimated 4 million Canadians still smoke. About 45,000 die each year from tobacco use. So the government has agreed through the last budget to bring more than $330 million forward over the next five years. The minister says the money will be used to help fund investments, protect youth, increase scientific research, fund non-government organizations, help curb smoking in Indigenous communities, where rates of smoking are considerably higher. They want to make sure the programs are developed specifically for Indigenous communities.
I’m wondering about where that issue is. I’m wondering about the question that was raised by my colleague, Senator Coyle, and to use her words, “the swag.” We’ve all seen the ability of these companies to promote themselves and find new rules and mechanisms to do that. Certainly Senator Smith spoke to that issue in terms of people finding ways around this.
My gut feeling is the same, that we need to start a little smaller and then maybe let it go, as we see how things develop. I’m hoping that in this debate someone can answer the very simple question of whether this amendment will prohibit the basic things, like signs on a store or business cards by these companies, or will it not? These things are basic. You all heard the testimony. I’m not sure what those things are. I think a store should be able to have a sign outside. I don’t think they should be handing kids T-shirts and hats and every other bit of cool gear to go out and run around with.
I want to make sure, before we vote on this, that I know what we’re voting on. Those are the kinds of things on which we’re getting two very different positions, and I’m hoping for some clarification. I don’t want a lot of things just left to regulation somehow and we’ll fix it in post, as we used to say in the TV business. It’s not enough assurance.
I hope others will now join the debate and help me through this.
Hon. Donald Neil Plett: I would like to ask Senator Wallin a question, which may also be a bit of an answer to her question, if I could.
The Hon. the Speaker: Senator Wallin?
Senator Plett: Senator Wallin, I was at the clause-by-clause consideration for this bill. An amendment was passed. It was an amendment by Senator Bernard, and it deals with when you’re 18 years of age, or 19, I suppose, in some provinces, and can legally purchase cannabis, you can also give that to somebody who is two years your junior. Parents are allowed to give cannabis to their 16-year-old children.
Would we not assume, Senator Wallin, if you can actually give the drug to some youth, that you would certainly be able to give swag to that youth and go and buy all the T-shirts and ball hats as an 18-year-old and give it to a 16-year-old, so certainly youth would have access to it if they have access to the drug?
Senator Wallin: Well, I am assuming it's true that parents or older siblings would be able to purchase these things and hand them off and give them for birthday gifts or whatever it is. Those are questions of the morals of the parents or the siblings, and I’m not sure we can legislate that.
What I’m trying to figure out is what the rules actually say. As I said, I don’t oppose. I don’t have any concern about a store hanging out a sign, whether it’s “Loblaws” or “Cannabis for You.” What I’m concerned about is anything else beyond that. And, of course, the word is pejorative, but the “insidious” nature of advertising. We know how that works, especially with the new technologies we have. So that subtle T-shirt or hat, or whatever it is that’s out there, the associative value of sponsorship and how people tend to do that, tobacco companies were regulated out of that business, whether it was cultural events, musical events or sports events, because of that very idea that the kids were going to see the associative value and think it’s all cool.
Please continue to discuss and debate so that I might learn this before we make a final decision.
The Hon. the Speaker: Senator Eggleton has a question.
Senator Eggleton: Would you not agree, perhaps, that the problem here won’t be so much the industry doing this? The fact is the bill gives clear guidance on no lifestyle appeals and nothing that appeals to youth. Ball caps and T-shirt selling to youth isn’t going to happen from the producers of the product. But there’s a whole industry out there that exists now. You can see kids walking down the street with these items, but that’s not governed by this bill. You’re still going to see that kind of thing. But in terms of the industry itself, it will be very much restricted by this.
Now the detail of that will come in the regulations, but you can’t have the regulations, wouldn’t you agree, until you get the bill passed? They’ve done some drafts, and those drafts would indicate that’s not going to be there, but they can’t finalize that until they finalize the legislation, which gives the guidance to the regulations. Don’t you agree?
Senator Wallin: I realize it’s kind of a chicken-and-egg question, but having sat on the Standing Joint Committee for the Scrutiny of Regulations, when you actually see these things six or eight months down the road in language that’s almost incomprehensible, people would have to be extremely diligent to see that. I think this will be a little higher profile than most regulations, but I’m still torn a bit about giving people who make the regulations pretty clear and direct guidance. It’s easier to add rights and room than it is to take it back after the fact. That was my point.
Senator Seidman: May I ask a question, Senator Wallin?
Senator Wallin: Yes.
Senator Seidman: Are you aware that there were no draft regulations of this piece of legislation, as are usually published in the Canada Gazette, Part 1? So there was merely a consultation document that was circulated, no draft regulations, and in fact the stakeholders complained because they said that they really didn’t know what the reference was for the draft regulations. We won’t see anything, other than a consultation paper, until the regulations are finally written. That is number one.
Number two: Are you aware that a very important piece of legislation called Vanessa’s Law, passed in 2014, still is not in full force protecting Canadians from the unintended consequences of pharmaceutical products —because the regulations are not written. There you go: 2014, legislation passed, can’t enforce the law because the regulations are not written.
So we can talk about regulations. They are very important.
Senator Wallin: I was not aware of that. Thank you.
The Hon. the Speaker: Senator Dean, did you have a question for Senator Wallin?
Senator Dean: Senator Wallin, if you had read the transcript from the Social Affairs Committee on Monday, when this question came up, John Clare, Director, Policy, Legislative and Regulatory Affairs, Health Canada, said he could help answer that question.
The way the provision works is there’s a blanket prohibition against all promotion that’s set out at clause 17, and then the way the part works is there’s a series of exceptions to that prohibition. So subclause (6) creates an exception to display brand elements on things that are not cannabis or a cannabis accessory.
One of the unintended consequences of removing this section, for example, would be that the Ontario cannabis store wouldn’t be able to put its brand logo on a logo outside their stores. The way the provision is crafted is similar to what exists in the Tobacco Act and —
An Hon. Senator: Question.
Senator Dean: Are we set?
The way the provision is crafted is similar to what exists in the Tobacco Act, and now the Tobacco and Vaping Products Act.
The Hon. the Speaker: I’m sorry to interrupt, Senator Dean, but Senator Wallin’s time has expired. I now call upon Senator Griffin on debate.
Hon. Diane F. Griffin: I had a question of someone at one point, but now I’m expressing it as a concern. I’m doing the same thing Senator Wallin did.
In the Social Affairs Committee, on behalf of Senator Black and myself, Senator Petitclerc successfully introduced an amendment that excluded things like fertilizer and growing lights from the definition of “cannabis accessory.” I don’t know the answer to this; I’m just expressing this as a concern. I was only aware of the amendment late last night, so I haven’t done sufficient research.
My concern is this: Would the amendment, which prohibits advertising on things that are not cannabis, or a cannabis accessory, mean that fertilizers cannot say on their labels whether they are suitable for use with cannabis plants?
It is not a big concern, perhaps, to many people, but if you’re looking at it from the point of view of agriculture, the agriculture industry or hardware stores that sell fertilizer products, it could be an issue. I just wanted to put this on the record.
The Hon. the Speaker: On debate, Senator Gold.
Hon. Marc Gold: Honourable senators, questions have been asked, quite properly, as to what the bill does and does not enjoin, and I think Senator Dean was taking us part of the way through there. I won’t repeat it, only to observe, before I get to my main points, that I think we’re all aware that you legally cannot promulgate regulations unless and until a bill is passed. A consultation paper in which witnesses have given us a pretty clear idea of what those regulations would be is really the best we can do. If and when this bill is passed, I have a sneaking suspicion the regulations will become apparent in regulations form and legislative form quickly thereafter.
I want to make a few points about the bill, and the first is the text. As Senator Dean started to advise us, the bill is structured with a prohibition and a series of exceptions. When we get to the exceptions for point-of-sale cannabis accessories and services, it is very restrictive. It provides that a person that sells a cannabis accessory or provides a service, which would be the retailer, “may promote it at the point of sale if the promotion indicates only its availability, its price or its availability and price.” There’s no mention of brand there. If we were to stop there and not create an exception, then, yes, you could know that it is available and it’s $10, but you would have no way to differentiate one $10 unit from another $10 unit.
I think that does raise a problem for store signage, and it certainly raises a problem beyond that.
I turn now to my second point, again to the structure of the bill, because the provisions in subclause (6) that would be removed, were this amendment to pass, provide a structure for restricting the kind of brand promotion that would be contemplated here. I think valid points were made about freedom of expression. I’m not going to go there. Valid points were made about the Tobacco Act, and I need not repeat them. But I would say that at least we in Quebec have had many decades of experience with laws and regulations that limit advertising aimed at children. Words in legislation are necessarily broad. If they’re not broad enough to capture unforeseen circumstances, then you invite litigation until you’re blue in the face. But these provisions, supported by regulations, as these will be as well, are also enforced by government agencies. In other words, it’s not just that we pass a law and hope for the best. We pass a law, it’s reinforced and supported by regulations, and it’s overseen by an ongoing regulatory framework. That’s how we pass, implement and enforce laws in this country. It’s the right way to do it.
On top of that, as Senator Lankin and others have pointed out in debate, we’re recommending — and I hope this bill will include it — a very robust monitoring process. Not only will the government need to monitor and report back to us, but we hope an independent agency will monitor how it’s applied. I have no doubt, senators, with the interest that we have in the important issues at stake, we’re not going to go to sleep at the switch.
We will stay on top of this and we will resolve any problems that arise as soon as possible.
I come to my final point, and that is the same point that I think a number of us who support this bill have been making all the way through our review, through second reading, through committee, and again here. This is a complex social policy issue. This is not just an ordinary piece of legislation. Even those of you who fiercely oppose it on principled grounds and on any grounds, we all agree that this is complicated. This is a big step. And in a matter of this scope, there are a number of objectives that the bill is trying to reach. Some of them are complementary; some of them are a bit competing. That’s the policy dilemma that responsible response to a real social problem carries with it, and we can’t wish it away. We can’t simplify it by cherry-picking evidence. I’m guilty of doing that, as we all are when we’re in our advocacy mode. But when we’re in our senatorial mode, if we’re putting principle ahead of everything else to do the best for Canadians, let’s acknowledge that we’re trying to do a couple of things that don’t always fit together so easily.
We don’t want to promote the use of cannabis for young people, honourable senators. Goodness knows, they’re using it enough already. And it’s not good to use too much of it too early and too often. But we’re also trying to put a dent in the illicit market. I’m not naïve, and none of us should be naïve. It’s not going to go away tomorrow. They’ll find other products, as they already have, to make their dollars off the misery of Canadians. We want to put a dent in that illicit market, not only because we don’t want organized crime to profit from the misery, or euphoria, or anything in-between of Canadians, but also because we want to have a clean, regulated, dependable product so people know what they’re getting and can safely assume that if they use it responsibly, they’re not going to have unintended health consequences.
In that context, allowing some brand promotion, as Senator Pratte properly pointed out, is necessary to achieve that objective. The law makes it clear that you can’t aim at children. You can’t do these things. Will there be hacks that we’ll see on the street with logos? Yes. And some of it will appeal to teenagers, some of it to baby boomers and some of it to kids. We’re going to need to monitor that very carefully.
Senator Batters: Isn’t that what you’re supposed to be doing?
Senator Gold: This is a complicated policy, but this is a reasonable and prudent accommodation for these competing and complementary objectives. This amendment, respectfully I believe, goes too far, and I will not support it. Thank you.
Senator Patterson: I’d like to ask Senator Gold a question. Senator Gold, you say the exceptions in clause 17 that this amendment proposes to remove are restrictive, but you’ve just said, yes, there will be people walking around with a logo on their ball caps that might appeal to young people. The exception that will remain in the bill does allow promoting a cannabis accessory on “reasonable grounds to believe,” except where there are reasonable grounds to believe it could be appealing to young persons.
What does that mean? Who enforces that? The impact of this amendment is to allow no exceptions. Isn’t that where we should go, that there should be no exceptions, no ways of driving a truck through proposed section 17?
Senator Gold: Thank you for your question. I’m not sure how much time I have to answer it.
The Hon. the Speaker: A minute and a half, Senator Gold.
Senator Gold: Thank you. I will govern myself accordingly.
Thank you for the question, Senator Patterson. There are always going to be aspects of a law or a consequence to the law that we can’t fully anticipate. I was trying to be realistic and not naïve about the possibility that a parent or an older sibling may pass on an accessory or not.
I don’t know about your neighbourhood, but here in Ottawa; or in Montreal, where I live; or in Quebec City, that I represent, when you walk down the street today, you will see a lot of marijuana leafs on T-shirts. You will see an awful lot of visible promotion — not of companies, it’s true, but of cannabis. I believe that the regulatory framework that is contemplated here, the oversight of the government regulators, armed with not only the legislative provisions but also the regulations, informed by the experience of consumer protection agencies that we have in all kinds of other sectors, are sufficient to strike the right balance between the objectives of this bill. Thank you.
The Hon. the Speaker: Your time has expired, Senator Gold.
Hon. Leo Housakos: Honourable colleagues, I intend to be brief. I would like to weigh in on the debate in regard to the regulatory side and aspect of this piece of legislation, which is really at the crux of how this legislation will be delivered and applied.
I also want to respond briefly to my good friend Senator Gold in regard to his lauding how the Province of Quebec has dealt with some of these elements and jurisdictions. I want to point out that he’s absolutely right. They do a great job. I want to remind this chamber that the Province of Quebec has a total ban on the use of tobacco brands elements on non-tobacco goods including accessories. They’re doing the right thing and we should learn from the Province of Quebec.
The other thing I want to point out, honourable senators, is that Senator Gold pointed out that the regulatory framework is going to be put together later and that, of course, we’ll be vigilant and on alert. I’d like to remind colleagues that the way it works and the way laws work in this country, when we give Royal Assent and the bill leaves this place, the regulatory framework will be set up by bureaucrats, by the government, and it will be based on the legislation we provide them. So you better be vigilant and alert right now, because if we don’t have the right piece of legislation, and if it doesn’t reflect exactly what we would like it to reflect on the regulatory side of things, it will not be implemented at all the way you would like to see it be implemented, and it will be too late. Going back to the point of Senator Smith, we have to be vigilant now. It’s better to make it a little narrower now than have to be forced to clean up a mess later.
Honourable senators, if I take at face value the government’s commitment, which is to make this legislation the cornerstone of helping us to reduce the use of cannabis by young people, I think this is an amendment that fits right in with that philosophy. So I think it’s a reasonable thing. If anything, on a non-partisan basis, it supports the overarching goal of the government, which is to help reduce the use of cannabis amongst young people.
It’s also highly unusual, on a piece of legislation as important as this, that there isn’t a preliminary regulatory framework provided with it. It’s also highly unusual, on a piece of legislation as important as this, that we didn’t demand that regulatory framework to be presented in advance.
Senator Gold, I know you find that surprising, but with most pieces of legislation that come here, a preliminary regulatory framework is provided and accompanies the legislation. There are instances where the government waives that and there are instances where we’ve accepted that as well. As Senator Seidman has pointed out, when that has happened in the past, it has been chaos. Legislators then come back and say, “That was never the intent of the legislation.”
I wanted to put all those points on the record. I think this is an amendment which is very reasonable and fits in with what the government’s goal is and I think we should support it. Thank you very much.
Senator Dean: My question is: Are we ready for a vote?
The Hon. the Speaker: Are honourable senators ready for the question?
Hon. Senators: Question.
The Hon. the Speaker: It was moved by the Honourable Senator Seidman, seconded by the Honourable Senator Housakos:
That Bill C-45 be not now read a third time but that it be amended in clause 17, on page 19, by deleting lines 16 to 27.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Hon. the Speaker: All those in favour of the motion will please say “yea.”
Some Hon. Senators: Yea.
The Hon. the Speaker: All those opposed to the motion will please say “nay.”
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the nays have it.
And two honourable senators having risen:
The Hon. the Speaker: We have an agreement on a 15-minute bell. The vote will take place at 11:13. Call in the senators.
Motion in amendment of the Honourable Senator Seidman agreed to on the following division:
YEAS The Honourable Senators
NAYS The Honourable Senators
ABSTENTION The Honourable Senator
Some Hon. Senators: Hear, hear!
Hon. Victor Oh: Honourable senators, I rise today to speak to third reading of Bill C-45 with respect to an amendment that seeks to address concerns regarding the clear indication of the levels of tetrahydrocannabinol, also known as THC, on labels affixed on cannabis products and its derivatives.
It is no secret that the cannabis available today is two to four times more potent than the cannabis used four decades ago. These higher potency products and derivatives can have serious and harmful effects.
A known scientific study from the United Kingdom found that young adults who smoked a high-potency cannabis known as “skunk” every day had five times the normal risk of psychosis.
Researchers also found evidence of changes to the white matter of the brain and that the risk of heart attacks increased fourfold to eightfold in adults with cardiovascular disease in the hour after use. These findings are alarming enough to justify a cautious and restrained approach to the legalization of cannabis.
Through a quick Internet search, I was able to find various companies selling skunk. One website would sell me 3.5 grams for $24 and would deliver it to my house. No potency was specified.
Cannabis is a harmful substance that requires strict control. The earlier and more frequent the use, and the stronger the potency, the more serious the physical and mental effects and the higher risk of developing an addiction.
This information is not new. We have heard evidence about the adverse effects of the use and abuse of cannabis for months.
Various witnesses who testified at the Standing Committee on Legal and Constitutional Affairs emphasized that the use of high-potency cannabis can result in more harmful effects unintended by the user.
As a result, they called on senators not only to ensure than an extensive public awareness and education campaign is in place sooner rather than later but to ensure that all cannabis products and derivatives clearly outline the potency being consumed by recreational users.
For example, on March 28, the committee heard from the Canadian Centre on Substance Abuse and Addiction, who urged senators to indicate the level of THC as well as other cannabinoids clearly on the packaging.
The committee also heard that consumers should be provided with accurate information about the potency of THC in cannabis products to help them make informed decisions and to protect those most vulnerable, such as youth and people with mental illness.
The potential legal implications of not mandating clear indications of THC and other cannabinoids on the packaging could be substantial for the government.
The Chair of the Barreau du Québec’s Consumer Protection Advisory Committee, Mr. Luc Thibaudeau, agreed that the government must set standards to warn Canadians about the risks and dangers associated with the use of marijuana. He also warned that producing marijuana and packaging it without clear labelling could lead to class action lawsuits against the government.
Mr. Thibaudeau said:
You are going to tell me that it’s possible to operate such warnings by way of regulation. We at the Barreau du Québec believe that the government has to be more severe than that. It has to set standards in the act that will warn society about the dangers of using marijuana for the simple reason, as an example, not to be stuck with a class action against the government 10 years from now, stating that you should have warned us and now you’re liable and we’re suing you for hundreds of millions of dollars.
While it is expected that regulations under Bill C-45 will require THC potency to be clearly indicated on the product label, this requirement is not enshrined in law. To me, this is concerning because matters that are not enshrined in law are sometimes overlooked or ignored by either present or subsequent governments.
Colleagues, I want to make some things clear. The purpose of this amendment is to make it illegal to sell cannabis in a package or with a label that does not set out the THC content, expressed as the percentage of THC the product yields and by unit or dose based on how the product is represented to be consumed.
This amendment is needed because it will not only protect the government against costly legal action, but, most importantly, it will ensure that Canadians are well informed about the content of the cannabis products that they are consuming.
A similar amendment was rejected at the Standing Senate Committee on Social Affairs because of concerns with its language. The concerns raised by senators at committee have been specifically addressed in this redrafted version of the amendment which allows for quantity and concentration of THC, CBD and other chemicals to be clearly marked, not specifically a percentage, so that there is greater flexibility as we gain more knowledge of these products through regulations. However, it will be set in the legislation that consumers will know the quantity and concentration of what they are consuming.
I would like to note that this amendment is separate from other proposals to set a maximum level of THC content. That is absolutely not its purpose.
Colleagues, our goal through this legislation has to be to protect the health and safety of Canadians, in particular children and youth.
Motion in Amendment Negatived
Hon. Victor Oh: Therefore, honourable senators, in amendment, I move:
That Bill C-45, as amended, be not now read a third time, but that it be further amended in clause 26, on page 22, by replacing line 23 with the following:
(d.1) that does not set out, in the prescribed manner, the quantity or concentration of tetrahydrocannabinol, cannabidiol and any prescribed chemical in the cannabis; or”.
Colleagues, I urge you to support this key amendment to Bill C-45 to ensure that THC levels are clearly indicated on labels affixed on cannabis products and its derivatives. Thank you.
The Hon. the Speaker: On debate.
Hon. Art Eggleton: Colleagues, I want to point out page 82, section 139(1)(k), because this is covered already. This is the clause that deals with regulations and exemptions. This is very instructive to the people drafting the regulations.
On page 83, it says:
Respecting the characteristics, composition, strength, concentration, potency, intended use, sensory attributes — such as appearance and shape — purity, quality or any other property of cannabis or any class of cannabis;
I think this has already been adequately covered in the legislation and, in fact, is very clear. The health officials also indicated that. It’s in the draft regulations. I realize they haven’t been finalized, but it is a part of what is being drafted at the moment, and that is that products would be required to be labelled with specific information about the product, such as THC potency and CBD, contain mandatory health warnings and be marked with a clearly recognized, standardized cannabis symbol, which in the document called “Summary of Comments” received during the public meetings, but it also says “proposed approach.” There are some very clear drawings and diagrams about how the packaging and the labelling would work.
This is covered in the legislation. It’s mandatory to be covered in the regulations and, in fact, as the officials indicated in the Social Affairs Committee, it is very much on its way to that finalization. Have a look at section 139(1)(k).
Hon. Pierre-Hugues Boisvenu: Honourable senators, I rise to speak to Senator Oh’s amendment. The purpose of this amendment is the protection of youth, which is one of the fundamental goals of legalizing this drug.
This amendment has been requested by scientific experts, as well as by the Association des médecins psychiatres du Québec. In its brief, the association recommends imposing an obligation to clearly indicate THC concentrations on packages and labels. This amendment would enshrine that obligation in law. The amendment is based on a recommendation made unanimously, and I stress the word “unanimously,” by the Standing Senate Committee on Legal and Constitutional Affairs in its report on Bill C-45.
The amendment is also inspired by approaches taken in other jurisdictions, such as Maine and California. The goal is to protect the public, especially youth, by inserting strict, clear rules into the act that would require THC concentrations to be indicated on the packaging and labelling of cannabis-related products. It also gives the government the power to pass regulations requiring other chemicals to be shown.
On April 18, 2018, the Standing Senate Committee on Legal and Constitutional Affairs heard from Dr. Karine Igartua, President of the Association des médecins psychiatres du Québec, who said the following:
Cannabis consumption predisposes vulnerable youth to developing psychotic illnesses. The earlier youths begin consuming, the more potent the THC and the more frequent the use, the higher the risks of psychosis. Continued use worsens the prognosis of psychotic illness.
The Standing Senate Committee on Legal and Constitutional Affairs was also informed that the THC content of cannabis in 1994 was around 4 per cent. By 2012, it was around 13 per cent, and in places where growers can perfect their art, it is possible to raise the THC level to 28 per cent, 30 per cent, and even 32 per cent. At such high THC levels, cannabis starts to become a powerful drug, which is why Dr. Igartua stated in her testimony, and I quote:
The THC content should be clearly identified on packaging.
That is why individuals and organizations that sell products with packaging that does not clearly show TCH concentrations must be penalized. If we include this new amendment in the law, we will be sending a very clear message. Think about how organized crime could sell products with much higher concentrations of THC, such as shatter, or products with false labels.
The legislative framework is strict and must remain that way. The penalties set out in section 44 for contraventions of section 26 are as follows: a fine of not more than $5 million or imprisonment for a term of not more than three years or both for those guilty of an indictable offence and a fine of not more than $200,000 or imprisonment for a term of not more than six months or both for those guilty of a first offence punishable on summary conviction. For any subsequent offence, offenders are subject to a fine of not more than $500,000 or imprisonment for a term of not more than 10 months, or both.
Furthermore, as Senator Oh mentioned, the Barreau du Québec was very clear when it testified before the Standing Senate Committee of Legal and Constitutional Affairs regarding the risk of class action suits against the federal government, like those we have seen in the tobacco industry.
If information on prevention is not sufficiently detailed, given the obligation to inform the public, especially young people, then some risks will remain unknown and it will be difficult to measure the impacts.
The Barreau du Québec went on to say, and I quote:
We have to be preventive and inform people in order to avoid that two, five or ten years from now, lawsuits are launched once people discover the risks and the dangers. People may perhaps want to blame the producers.
As a lawyer who specializes in consumer law, Mr. Thibaudeau warns against the cannabis marketing industry, which is very powerful, much like the alcohol and tobacco industries.
Internationally, some jurisdictions have made it a legal requirement to indicate THC levels on their products. That is the case in California, which enshrined this requirement in its Business and Professions Code - BPC. DIVISION 10. Cannabis [26000 - 26231.2], which was amended in 2017. Its chapter 12 is entitled “Packaging and Labelling 26120-26121”.
It states the following:
All cannabis and cannabis product labels and inserts shall include the following information . . . .
Paragraph 5 clearly mentions the need to include THC.
Colleagues, I urge you to support Senator Oh’s amendment. It is, therefore, proposed, the amendment, the bill, in order to ensure that THC levels be clearly indicated on labels affixed on cannabis products and its derivatives.
In terms of penalties, under the cannabis bill, a person that contravenes section 26 provisions is guilty of an indictable offence and is liable to a fine of not more than $5,000,000 or imprisonment for a term of not more than three years, or guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $200,000 or imprisonment for a term of not more than six months.
To come back to the basic principles of this bill, which are primarily to protect young people and take action against organized crime, amending Bill C-45 as Senator Oh proposes only makes sense. Thank you.
Hon. Scott Tannas: Honourable senators, I wanted to stand in support of Senator Oh’s amendment. I listened to what Senator Eggleton said. He said that it’s already there in a description. I don’t think he should mind if we make it explicit. A belt and suspenders are sometimes good.
We have this approach on alcohol. I would say that as we look at impaired driving, it’s important that, as people are managing their consumption, with impaired driving laws in place that they know exactly what it is they are consuming.
Right now my understanding is that the potency is in a fairly narrow band from the most potent to the least. That’s today. We must never underestimate our wonderful crop science industry, who will be focused on this particular area of growth for their business. I’m sure that they are already working hard to figure out how to make more potent marijuana for sale, for development and sale. So this issue of potency, from a consumer’s point of view, is going to become increasingly more important in the future.
For those reasons, colleagues, I think there is nothing wrong with being explicit about what we already hear is the intention of the draft regulations.
Hon. Claude Carignan: I will be brief because I think the debate is clear enough. However, I would like to quote a witness my colleague, Senator Boisvenu, referred to. That witness is Luc Thibaudeau, Chair of the Barreau du Québec’s Consumer Protection Advisory Committee and one of Canada’s foremost experts on consumer law. This is what he said when he appeared before the Standing Senate Committee on Legal and Constitutional Affairs on April 18:
You are going to tell me that it’s possible to operate such warnings by way of regulation. We at the Barreau du Québec believe that the government has to be more severe than that. It has to set standards in the act that will warn society about the dangers of using marijuana for the simple reason, as an example, not to be stuck with a class action against the government 10 years from now, stating that you should have warned us and now you’re liable and we’re suing you for hundreds of millions of dollars.
I wanted to make sure this important statement by an eminent legal expert in consumer law would be on the record in the Debates of the Senate. Thank you.
Hon. Dennis Glen Patterson: Your Honour, Senator Eggleton said that the purpose of the intended amendment is covered by clause 139(1)(k) and he invited us to look at it, which I did.
With respect, clause 139(1)(k) does not cover the subject matter of the amendment. Clause 139 gives the Governor-in-Council the authority to make regulations with respect to the administration and enforcement of this act; and 139(1)(k) specifically gives the Governor-in-Council the authority to make regulations on the potency of any property of cannabis or any class of cannabis, which is what this amendment is getting at. The amendment describes potency in different words. However, honourable senators, 139(1)(k) does not refer to advertising or labelling, and the amendment is about the labelling.
Honourable senators, 139(1)(k) simply gives the authority and requires that there be regulations governing the strength, but it says nothing regarding what the amendment is about, which is about selling in packages or with a label.
With the greatest of respect, all 139(1)(k) says is there must be regulations requiring that the potency be measured. It doesn’t say anything about selling, packaging or labelling it. So we do need this agreement if we want the public to know about the potency or strength of this risky product. That is the intent of this amendment. Yes, there will be regulations requiring potency to be measured, but it’s going beyond the regulations to make sure that it is on the label. That’s what this is about.
This is a dangerous drug. The danger is in the active ingredient of THC. That’s why we need this amendment, Your Honour. Clause 139(1)(k) does not go far enough. We need to go into the sale, the packaging and the labelling to protect all consumers. That’s why I support this amendment.
Hon. Tony Dean: Again, I’ll say what a terrific debate this is this afternoon, and I’m pleased and proud to be a part of it.
This was another motion that was considered during clause by clause in the Social Affairs Committee on Monday. It received considerable attention, and it was not supported. We were aided considerably by advice from officials who were available in the room to support us.
For context, I want to mention and remind senators that at the Social Affairs Committee, and much to the credit of the chair and deputy chairs and members, we had a very collaborative set of instructions, helped by good technical advice from officials. In the context of that, there were a number of amendments. Some were proposed by the Independent Senators Group and some by Conservatives.
I just note that five proposed amendments from Senator Seidman were supported by either ISG members or Liberal members, and that will result in better legislation. I myself supported a couple of Senator Seidman’s amendments. I think we’re doing our job well and focusing where we need to focus, and doing good work on behalf of Canadians.
Our minds came together where we felt, collectively, that we needed to make amendments, and amendments were made. There was support around this chamber, as I know there will be support from around the chamber on June 7, when we have the final vote. That’s the way that we do our work here, of course. We’re influenced by evidence and debate. That’s certainly the case for my colleagues in the independent group and our independent Liberal colleagues. I’ll remind us of that on June 7.
Let’s look at the motion, which I think isn’t required.
First of all, packaging and labelling — and we all agree with this — is hugely important. We’ve heard a lot about public education and risks, and we know that risks are best managed with clear, risk-based information. Nowhere will that be as important or impactful than at point-of-sale.
When people go into those stores and buy their legal cannabis products, only two low-potency products will be available in the first round, but people will, at point-of-sale, be subject to the influence. It’s the largest single opportunity to influence behaviour and consumption, and the government clearly understands this.
The regulatory — I’m going to call it the document reporting on consultations on the government’s intentions to regulate once this bill is approved by senators in this chamber on June 7, makes this very clear. That package is clear in saying that the regulations will require that THC potency, labelling and health warnings will be and must be displayed on packaging, and it already signals that, in the regulations to follow on edibles, a unit-based dosing requirement will be there. Indeed, that’s evident in the first tranche, because it talks about pre-rolled cannabis cigarettes being single unit dosing where they are bought. It talks about single-unit ingestion or products that involve cannabis oil.
There was a lot of discussion at Social Affairs and a number of questions to officials. Officials were clear with us and put on the record, as has been put on the record previously, that the regulations will deal with THC potency levels. They will provide health warnings. They will be in childproof packaging. We know all of that, and I believe we can rely on that.
The process of regulation making, as you all know, is central to our legislative process. We don’t put some things in legislation because regulations are flexible and allow us to adapt to changing circumstances that we can’t predict now. There have been lots of things said about what we can’t predict. So regulations are flexible and adaptive, and governments make a careful call about where they legislate and where they regulate. And governments are generally transparent, as this government has been, in indicating clearly where it wants to go.
Officials advised us at the Social Affairs Committee that the importance of displayed THC content and health warnings is already recognized, and I quote that the requirements proposed in the motion are already echoed throughout the proposed regulatory authorities.
I understand the motivation. I think it’s a little bit of overreach. It is not unusual that legislators and senators will want more certainty. But this is a case, I believe, in which we don’t need it. These are central components for the regulations. They should be dealt with in the regulations, and those regulations should be flexible in response to changing circumstances.
For those reasons, and because I have my 20-odd years in legislation and public policy, I’ve seen the downside of not allowing regulations to regulate and be flexible. And because I tend to trust to a large degree the advice of government officials and experts, and because I’ve had a close reading of the regulatory proposals document, it’s a motion that I think we don’t need and that I will respectfully oppose. Thank you.
The Hon. the Speaker: Senator Eggleton has a question. We have two minutes left.
Senator Eggleton: Senator Dean, Senator Patterson seemed to think that 139(k) didn’t do what it’s intended to do, but it talks about regulations and it quite clearly says “respecting the characteristics, composition, strength, concentration, potency, intended use,” et cetera, all of these things. Why would the government say it needs those in regulations if it wasn’t going to tell anybody, which is what he’s suggesting might be the case, if you didn’t put it on packaging? I can’t see the logic in that.
Senator Dean: I will simply say that the regulations will go to a finer degree of detail, which is where we need flexibility. One can establish in the legislation the broad parameters of what’s intended in the regulations. The precision of those regulations has been the subject, obviously, of further work and further analysis over the last now 14 months since this legislation was introduced in the House of Commons—14 more months to think about the precision and nature of those regulations, which is important. So I say again that regulations are regulations. There could be no clearer statement of the intent of these regulations than we have seen laid before us, and I don’t think that we need legislative language which, by its very nature, will not be flexible.
Hon. Renée Dupuis: Would Senator Dean accept a question?
Senator Dean: Yes.
The Hon. the Speaker: There is only one minute remaining.
Senator Dupuis: I can ask my question in 30 seconds. Clause 25 of Bill C-45 states:
It is prohibited for a person that is authorized to sell cannabis to sell cannabis that has not been packaged or labelled in accordance with the regulations.
Do I understand correctly that the reference to paragraph 139(1)(k) relates directly to this general clause, which provides that all packaging and labelling will be regulated?
The Hon. the Speaker: I’m sorry, Senator Dean, but your time has expired.
Are honourable senators ready for the question?
Hon. Senators: Question.
The Hon. the Speaker: In amendment, it was moved by the Honourable Senator Oh, seconded by the Honourable Senator Dagenais, that Bill C-45 be not now read a third time but that it be amended—shall I dispense?
Hon. Senators: Dispense.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Hon. the Speaker: All those in favour of the motion will please say “yea.”
Some Hon. Senators: Yea.
The Hon. the Speaker: All those opposed to the motion will please say “nay.”
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the “yeas” have it.
And two honourable senators having risen:
The Hon. the Speaker: We have a 15-minute bell. The vote will take place at 10 minutes past 12. Call in the senators.
Motion in amendment of the Honourable Senator Oh negatived on the following division:
YEAS The Honourable Senators
NAYS The Honourable Senators
ABSTENTION The Honourable Senator
Hon. Diane Bellemare (Legislative Deputy to the Government Representative in the Senate): I move the the adjournment.
The Hon. the Speaker: Let me explain, honourable senators. This is a motion to adjourn debate on Bill C-45 because we’re dealing with the bill thematically. On Monday we will resume debate on Bill C-45 on another set of issues pertaining to the overall bill.
(On motion of Senator Bellemare, debate adjourned.)
Hon. Diane Bellemare (Legislative Deputy to the Government Representative in the Senate), pursuant to notice of May 31, 2018, moved:
That, when the Senate next adjourns after the adoption of this motion, it do stand adjourned until Monday, June 4, 2018, at 6 p.m.;
That committees of the Senate scheduled to meet on that day be authorized to sit even though the Senate may then be sitting and that rule 12-18(1) be suspended in relation thereto; and
That rule 3-3(1) be suspended on that day.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to.)
(At 12:21 p.m., the Senate was continued until Monday, June 4, 2018, at 6 p.m.)