Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 13 -- Evidence
Ottawa, Wednesday, May 29, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-8, respecting the control of certain drugs, their precursors and other substances and to amend certain other acts and repeal the Narcotic Control Act in consequence thereof, met this day at 4:00 p.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Senators, our witnesses today from the Department of Justice, are Mr. Paul Saint-Denis, Senior Counsel, and Mr. Gérard Normand, Counsel. From the Department of Health we have Mr. Bruce Rowsell, Director, Bureau of Drug Surveillance. From the Solicitor General we have Mr. Ronald Dykeman, Senior Policy Analyst, Policing, Policing and Law Enforcement.
Please begin, Mr. Rowsell.
Mr. Bruce Rowsell, Director, Bureau of Drug Surveillance, Department of Health: On behalf of the Department of Health, the Department of Justice and the Solicitor General, we are pleased to appear before you today to offer the following comments regarding Bill C-8.
This legislation first entered into the drafting stage about 10 years ago; in 1986. It has had an up-and-down ride since then. As the 1988 convention was coming into force, further changes to the proposed bill were needed to accommodate the requirements of this last convention. The resulting Bill C-85 was introduced by the Conservative government to ensure that Canada would meet its obligations under the three international conventions. It died on the Order Paper when the government called an election, and was reintroduced by the Liberal government as Bill C-7. Today, as a result of the prorogation, it is designated Bill C-8.
During the intervening years, many witnesses have appeared before the committees and there has been extensive review by members of Parliament. While known as Bill C-7, approximately 30 amendments were brought forward to address treatment and rehabilitation issues, and to revise the penalties from the original proposal.
I wish to emphasize that this is a health bill. Many of you may have friends or acquaintances who have been seriously ill. They may have been suffering from cancer and required powerful medicines to deal with their pain. Others may be aware of persons with mental illness who require medicines to treat their affliction.
There are also substances in this bill to deal with addictions. For example, methadone is a substance controlled by this legislation which is used to treat pain but also used in many treatment centres to treat heroin addiction. Unfortunately, when these substances are powerful medicines, they also have greater risks. These risks often result in abuse of these substances.
It is for that reason that this bill has two elements; first, to make substances available for medical purposes and, second, so we have a mechanism in place to take redress whenever diversion or abuse takes place.
Throughout your deliberations you have heard reference to Canada's drug strategy and the notion of harm reduction. Canada's drug strategy attempts to place a balance between supply-control and demand-reduction.
As you have heard, about 30 per cent of the resources are directed toward supply-control. There are processes in place to deal with the importation, exportation and distribution of these substances and to address issues around diversion. Seventy per cent of the resources have been allocated toward treatment, rehabilitation, prevention, education and working with provincial programs to ensure that people are aware of the risks involved in substance abuse. Canada's drug strategy has built an infrastructure that will continue to provide these basic approaches.
At the risk of sounding like a broken record, I want to reiterate that this bill was brought forward to consolidate the Narcotic Control Act and Parts III and IV of the Food and Drugs Act. Health professionals, physicians, pharmacists, dentists, veterinarians and manufacturers of pharmaceutical products have had to work with two separate pieces of legislation in practising their occupations. This has been difficult for them. By bringing the two together, both administration and practise will be much easier. The rules will be clearer.
This bill will also deal with the control of precursor substances. You have heard about the diversion of these substances to clandestine laboratories for the manufacture of illicit substances, usually in the stimulant category. Methamphetamines and other stimulants are a problem for many of the youth in our country. There is also the new control over substances called benzodiazepines. Many of you may recognize the drug Valium. While these substances have a very valid medical use, they have been diverted into the illicit marketplace and used with other illicit substances. This often increases the abuse potential of substances covered by this legislation.
Patients receiving treatment will not see a difference with the accessibility of benzodiazepines. The controls associated with these substances will simply be for importation, exportation, manufacture and to prevent trafficking. Therefore, pharmacists and physicians will see no difference with these substances.
Additionally, the definition for production has been enhanced to include all levels of production and cultivation. This makes the term all-encompassing and avoids the confusion of a multiplicity of terms.
I will address some of the specifics issues which have been raised by the witnesses. In listening to witnesses over the past number of weeks, our appreciation for their concerns has been heightened. I will try to group their concerns by topic rather than speak to the specific groups that have appeared before you.
I will first address alternatives to incarceration. A number of parties have spoken about this issue in the context of a harm reduction model, increased treatment and rehabilitation, or in other approaches. The Department of Health supports and encourages treatment and rehabilitation as opposed to incarceration. However, we must also appreciate the wisdom of the courts. They must review each case and have an opportunity to examine all of the information brought forward in order to decide on the best approach for dealing with persons found guilty of criminal offences under this legislation.
Some witnesses said that not all persons are amenable to treatment and rehabilitation. While there are cases where incarceration is necessary, we support increased treatment. This is an area where inter-governmental cooperation is essential. While the provinces deliver treatment and rehabilitation programs, there is no authority at the federal level to force these governments to provide such services. It will only be through time and by working together that we can encourage change to take place.
I will talk about the needle exchange programs. There has been wide speculation about the effects of this bill on needle exchange programs. From the witnesses who have appeared before you and before the House of Commons committee we have not yet heard of any case of a person being charged by the police while exchanging a contaminated needle or syringe for a sterile one. Under both the existing legislation and the provisions of Bill C-8, most of the concerns which have been expressed are based on speculation.
It is important to note that the proposed legislation is very similar to what exists under the current Narcotic Control Act. Police recognize the value of these programs and would certainly not want to take action when they see that no criminal activity is taking place.
It is very difficult to provide a clear definition of these needle exchange programs. One of the difficulties is that the program can take many forms. Some programs are set up in pharmacies and community centres. Some are provincially funded; some are federally funded. Some communities are served by mobile units. They are able to meet with substance abusers on the street and ensure that they get clean needles and syringes.
The result is that it is very difficult for us to provide a definition for such programs which would allow them to be excluded from the legislation. We would run the risk of reducing the flexibility which currently exists. I can only emphasize that, to date, we are not aware of any cases in which the police have charged a person who has been involved in these programs.
We have heard the concern expressed that with some indictable offences where a penalty of five years less a day corresponds to the maximum penalty, persons would be denied the right to an inquiry or trial by jury. This is one issue which was debated by the subcommittee in the House of Commons. This translates to reducing the penalties and trying to make the court proceedings as efficient as possible.
The subcommittee examined the penalties that have been issued and the types of convictions that were being awarded. The members concluded that, for certain offences, trial by judge may be a more efficient process allowing for the streamlining of the court proceedings and also for consideration of alternatives to incarceration. This is one of the areas where encouraging treatment and rehabilitation would place the onus on the courts to deal with this matter.
I will talk about the powers of inspectors. It is important to remember that these are administrative matters. The inspector ensures that the administration of the law is undertaken and that health professionals are complying with the regulations. In most cases, they are looking at records of the purchase of drugs and the storage of those drugs, ensuring that they are maintained in a secure manner, and ensuring that there are records kept for their sales and distribution. This will apply to physicians, pharmacists, veterinarians, dentists and other health practitioners.
Inspectors would not have access to personal history about a patient since an amendment has been adopted in the house to specifically exclude personal medical history from inspections. This is an improvement over the current legislation. Furthermore, there is a proposed adjudication process which would allow independent third-party review before any action is undertaken by the minister or the designate concerning a health professional and a possible notification.
This again does not exist in the current legislation and will give those persons a better opportunity to defend themselves and to present information that would help in assessing their case.
You have heard representatives from the Canadian Medical Association express their concerns about the "medical use" of drugs. This is a term that is used extensively in the legislation, a term that has been put forward by the World Health Organization, which places these substances in the context of medical as opposed to industrial use.
In examining this section, we observed that in the French translation they used the term "application." We are confident that this would make it more acceptable to the physicians, in that a medical application would certainly not give the impression that the goal of this bill is to spell out the indications for the use of the substance. As a result, this is one change we would bring forward to the committee.
As a point of clarification, on the subject of terminology, persons in the health professions use some language which, when it comes into the legal system, is not as fluent. Therefore, I think the word "application" will satisfy the needs of both.
With regard to hemp, you heard much enthusiasm for a commercial cultivation of hemp. You also heard the concern that there may be too onerous a system in place which places controls on the entire use of hemp products. I believe that one of the witnesses showed you the series of licences and permits that had been issued under the current legislation in order for research to be conducted into using the fibre to make paper, textiles, et cetera. There were suggestions for ways to deal with the hemp fibre once it is in mature stalk format.
A number of parties have spoken of their concern that the legislation still does not go far enough to clearly exempt herbs and traditional medicines from the legislation. You have also heard concerns that the chemical names or nomenclature used in the schedules did not comfort people who were not aware of the exact chemicals that may appear in some of these herbs. These schedules are exactly as they appear in the existing legislation.
Bill C-8 will not affect medicinal herbs or homeopathic products. However, I should like to point out that, further to an amendment adopted in the house, the interpretative clause under former subclause 3(1) has been removed due to concerns expressed before the subcommittee that it could cover herbal products and make them illegal substances.
Related to this matter is the issue of drug schedules. I wish to emphasize that the Department of Health has made a commitment to create a task force of experts to review the schedules and to establish clear criteria and standards for the scheduling of substances.
This may necessitate moving some substances from one schedule to another. As members of the committee are aware, this can be done by an Order in Council. Should concerns be raised that product substances may appear to be in the wrong schedules, corrective measures could be taken.
I wish to emphasize that the department has made that commitment and will carry it forward. We have put forward a timetable of one year to undertake this activity.
Finally, the vast majority of witnesses who have appeared before you wanted to talk about marijuana, its decriminalization or its legalization, or any number of steps to be taken to change the way it is available in Canada. This is not a new issue to the three departments involved in this bill.
You have heard firsthand from many of the people involved in treatment centres and street level programs dealing with adults and young people. You have not as yet had the opportunity to listen to some of the medical expertise, the pharmacologists and the toxicologists, who have studied the adverse consequences of cannabis. You have also not heard from the law enforcement agencies, whether they be local, municipal, provincial or international, such as Interpol.
Other issues raised by the experts within the World Health Organization and the United Nations Commission on Narcotic Drugs have not yet been explored. These people collect extensive information from around the world and can give insight into the programs many countries have tried.
You have had presentations about the program in Amsterdam. There have also been references to the programs in other countries such as Australia and to other drug issues in places such as Frankfurt and Switzerland.
There have been reports of programs in Alaska which made marijuana more widely available a number of years ago. In the last year or so, Alaska amended its program and has taken a more stringent stand. This was a decision taken by the community itself and not by the enforcement agencies within that state.
This is a very difficult area. There are social and health implications, as well as criminal, legislative and legal implications. It is for that reason the Standing Committee on Health has made the commitment that it will undertake a review of policy on substance abuse.
The Minister of Health has written to the Chair of the standing committee to express his support for such a review. As the Department of Health, we will provide whatever assistance and expertise we can to support the members of Parliament in undertaking this review.
Before closing, I should like to give some insight into some of the amendments that the government would like to bring forward to this bill. The first area I referred to earlier in my presentation was the concern raised by the Canadian Medical Association about the term "medical use." While this term can be confusing because it often refers to a specific medical diagnosis, we are proposing that an amendment be brought forward so that it be recognized as a "medical application."
Often, other acts are referred to in any legislation. The scope of Bill C-8, the proposed controlled drugs and substances act, is such several adjustments are necessary to accommodate recent changes. For example, the adoption of the Firearms Act, the Corrections and Conditional Release Act and the Young Offenders Act have necessitated changes to this bill. It is also proposed that there be a consequential amendment to the Criminal Code for the sake of consistency. This pertains to the trafficking definition in the code so that the notion of manufacture is included. This will apply to manufacturing conducted in clandestine laboratories.
Madam Chair, I want to thank you for this opportunity to present our views. My colleagues and I would be pleased to answer any questions you may wish to ask at this time.
Senator Jessiman: You said that we should retain the present system so that flexibility is given to the courts. Is it not true -- and you have read all the testimony -- that the police departments in the larger cities, in particular Vancouver, as well as Toronto and Montreal, do not have the forces to enforce the law? They have much more serious matters to look after. As a result, in those cities this law is just not being enforced. It is not the courts making that, decision it is the police departments.
We were also told that in smaller communities, where there is probably not as much crime, the police have more time on their hands and they are enforcing the law. As a result, our laws are being enforced in different areas in different ways, or at least that is what they are telling us. That just does not make sense. It is unfair to those people living in the smaller communities; or, perhaps, we are making it worse for those in the cities by being so lenient. However, from what I am told, I do not think that is the case.
Mr. Paul Saint-Denis, Senior Counsel, Department of Justice: Senator, I think your observation is correct. However, it is probably also correct to say that it applies to any other number of offences; it is not just with respect to the possession of cannabis.
In the larger urban areas, particularly in recent years with diminishing resources, police forces have had to priorize their law enforcement efforts. Therefore, in some instances, they will not actively seek out people who are committing offences in relation to possession of cannabis.
Having said that, though, the offences are nevertheless brought forward when, in investigating another offence, a law enforcement officer will come across an instance of possession of cannabis. Depending on the circumstances, the police have always had a certain amount of discretion as to how they will deal with an incident of a phenomenon of crime. They can deal with it informally by simply taking the marijuana away and issuing a warning to the person. If he is someone on whom the police have had their eye for a long time, the marijuana possession offence might give them a certain amount of leverage in order to get that individual to comply with a particular type of behaviour that they want to see.
In short, you are right, senator, but this is not something that is particular to cannabis enforcement laws; it is with respect to any number of laws.
Senator Jessiman: We were told that at any one time in Canada between 2 million and 3 million people will be smoking marijuana. Is that statement terribly exaggerated or is it correct?
Mr. Saint-Denis: I do not think there is any way to confirm or to dispel that statement. To my mind, that is a number that has been taken out of the air. It cannot be confirmed. We do not do surveys across Canada as to how many people smoke marijuana and when.
Senator Jessiman: When bands come to town there are sometimes between 20,000 to 50,000 kids who go to listen to this music. They smoke this stuff and no one does anything about it. I guess the reason they do not do anything about it is because they cannot. They do not have the forces to do it. However, maybe it is not hurting anyone.
Mr. Saint-Denis: Senator, I recall the witness who made the comment about large gatherings, in particular rock concerts, where there would be a tremendous amount of marijuana smoking going on and how the law is not being enforced. That is true. I think the police are being very wise in that they do not want to create a riot by going into such gatherings. They are probably not enforcing liquor laws or several sanitation by-laws either. These are unusual events. The police exercise their discretion properly by not wanting to take a high-profile, interventionist attitude.
Senator Jessiman: Is it not true that liquor offences, or any of the other offences to which you have referred, other than smoking marijuana, are not criminal offences?
Mr. Saint-Denis: There are such offences as disturbing the peace, being found to be drunk and disorderly, to name but a few. I think there may be offences being committed other than cannabis possession offences which are not being enforced as well, although perhaps not as many as the possession offences. If your overall suggestion is that there are a lot of possession of cannabis offences going on in Canada at any one time, then your point is well taken.
Senator Doyle: On that particular issue, you mentioned that there has been a downsizing in funds available for the police. What you describe was the case 20-odd years ago when the LeDain Commission found the same uneven enforcement and the same uneven respect for the law. There are several laws with respect to which the police might arrest a person. For example, they might detain you on a liquor offence, depending on how much you have had to drink. I do not see how you can compare the two offences. One has a criminal record attached to it and the other rarely does, although liquor may be more damaging to the user and to the people around him than is marijuana.
Why is it that, with marijuana, the police are told to use their discretion? The implication is that the police will turn a blind eye to large groups using it, but that they will pursue the matter if it is being used on the West Coast or in Toronto on a Saturday night?
Mr. Rowsell: I do not think we can answer your question, senator. I think that is the reason for the request to Parliament to undertake an intensive review of abuse of this particular substance. I do not think anyone in this room or elsewhere can adequately answer those questions for you. You have made common-sense statements. However, no one really has the answers. No one knows the underlying reasons and how we should approach dealing with cannabis.
The legislation we now have has been modified by making it clearer, so that the police can deal with the difference between simple possession and trafficking. In the past, they often would not charge a person with trafficking because it was so much easier to reduce the charge to simple possession.
The hope now is that the circumstances which involve true trafficking will be handled more appropriately. That was the direction the members of the house were trying to get across.
As far as the bigger question is concerned, I think it requires an in-depth review.
Senator Doyle: Is it not true that, when the government of the day decided not to proceed on the recommendations of Judge LeDain, it promised to hold an intensive study of the use of drugs in Canada and from that it would proceed with a revision of the laws in several areas?
Mr. Rowsell: Those statements are on the record in the house.
Senator Doyle: Whatever became of the study?
Mr. Rowsell: I am afraid I cannot answer that question either.
Senator Nolin: Senator Jessiman raised a question about users. I want to point out to Mr. Rowsell that, in 1989, his department put out a technical report concerning the use of alcohol and other drugs by Canadians. That report pointed out that 23.2 per cent of Canadians aged between 15 and 19 use marijuana. Do you have numbers for the other age groups?
Mr. Rowsell: Those are the numbers that came back from that survey. That was a specific survey.
Senator Nolin: Do have you more recent numbers?
Mr. Rowsell: Yes. I think there is now a report for 1995.
Senator Nolin: Is it possible to have a copy of it?
Mr. Rowsell: Yes, certainly.
Senator Nolin: Did the numbers increase, decrease or stabilize?
Mr. Rowsell: I do not have the report with me. I am not familiar with the exact numbers. However, we can obtain that report for you, senator.
Senator Jessiman: What would that represent in terms of numbers? It refers to a percentage of people between certain ages. Are we talking about 1 million people?
Senator Nolin: It is millions.
Senator Jessiman: I am sure we must have received a copy of this article entitled, "The war on drugs is lost" from someone in your department. Have you read it?
Mr. Rowsell: I have seen the article, yes. We did not provide it to you.
Senator Jessiman: This article is based on a symposium attended by seven outstanding people, including judges and chiefs of police. They say that the war on drugs is lost. The article to which I refer relied on Professor Michael Gazzaniga who supplied the background. These people say that the war on drugs is crazy, that those who are caught smoking should not be charged with an offence because it is a health issue. If you become an addict, that is your problem. You are only hurting yourself. They say that nicotine and alcohol are much more addictive than a number of these drugs.
James Q. Wilson, a professor from UCLA, wrote an article on behalf of the drug war. He set out the other side of this problem. Lo and behold, I found that he is talking about cocaine, heroin and whatever it is that is derived from adding water and baking soda to cocaine. Is that called "crack"?
Mr. Rowsell: You were just testing the audience, were you not?
Senator Jessiman: Exactly. I am reading an article from a person in the United States who states that they should not even be considering marijuana because it is not nearly as addictive as other drugs. He does not think marijuana should be in any way part of the criminal system.
Mr. Rowsell: I think you will recognize as well from the article that the United States is looking very seriously at what is happening in Canada in that Canada has been way ahead of them in introducing the demand reduction approach and in taking more and more steps trying to inform and educate people and to deal with the treatment of rehabilitation.
Most of the treatment programs in the United States are provided by the private sector, so the approach taken in the United States is quite different from what we have been trying to do here in Canada.
Senator Jessiman: I should like to think we go a quite a bit further.
Mr. Rowsell: I agree with you, but there is a long way to go.
Senator Milne: I had a small problem with your presentation here today when you quoted to us what we have already heard. I thought you were here to go through these amendments with us and give us a brief overview of them. Would you do that, briefly?
Mr. Rowsell: Each individual one?
Senator Milne: I think the people here deserve that, yes.
Mr. Rowsell: Certainly.
Senator Lewis: These are amendments proposed by whom?
The Chair: By the government.
Senator Lewis: Have they not yet been tabled?
The Chair: No, nor have they been moved. We asked that we provided with an explanation. I understand an amendment will be moved by Senator Milne at the end.
Mr. Rowsell: As a point of clarification, do you wish to do this before they have been submitted and tabled?
The Chair: The problem is that once they have been submitted and tabled, you will not be here. It was Senator Milne's hope that you would provide the explanation and then she or someone else would move them later on your behalf.
Mr. Rowsell: I am sorry. This is the first time I have been through the procedures here in the Senate, and they are somewhat different from what we have done in the House of Commons.
Senator Milne: I am one of the good guys, remember? I might or might not move these on your behalf.
The Chair: We are a much more flexible group.
Mr. Rowsell: Clause 2 is simply an addition whereby, in the House of Commons, Schedule II was omitted in the controlled substances definition. It is to ensure that the wording in both English and French is accurate.
Mr. Gérard Normand, Counsel, Department of Justice: The next amendment deals with clause 31 on page 28 of the bill and arises from a comment made by one of the witnesses who appeared before you. Regarding the English portion, there was some discussion about the concept of dealing in a controlled substance. At some point a comment was made relating to the French version of clause 31(1).
Currently, the bill deals with, as far as the French is concerned, "l'habilitant à faire le commerce de substances désignées ou de précurseurs." After further consideration, we felt that this French version was not similar to the English one, so we are proposing, in order to match the English version, which is more appropriate as far as we are concerned, to change the French text starting at line number 6 to read "à se livrer à des opérations à l'égard de substances désignées" instead of "à faire le commerce."
To deal with the commercial angle, later on, we have proposed it should read, "exerce son activité professionnelle".
[Translation]
This would correspond more with the English version.
[English]
Senator Milne: We do not require a detailed explanation. Could you just go through this and tell us whether the amendment is so that the French text will agree with the English text, keeping in mind the original intent of the bill? However, I think we should go through each one.
Senator Jessiman: How can you do this so quickly yet 14 years have gone by and the Charter has still not been done?
Senator Gigantès: It is done.
Senator Jessiman: It is just simple translation. They had some problem with the English version here. Now they say the French is different from the English. Can someone who speaks both languages take four or five lines and rewrite them within a matter of minutes?
Mr. Rowsell: With your approval.
The Chair: If you could continue. I think we are at clause 55.
Mr. Normand: Clause 55 is the one to which Mr. Rowsell referred. In suggests changing medical "use" to medical "application" because of the concern expressed by the CMA.
The Chair: Have you discussed this with the CMA?
Mr. Normand: Not to my knowledge.
Mr. Rowsell: No, we have not.
Senator Bryden: Was this designed to address their concern?
Mr. Rowsell: Yes.
Senator Bryden: I cannot understand why you did not talk to them.
Senator Nolin: Their concern is much greater than that.
Senator Bryden: Unless it is a term of art that I do not understand, what is the difference between "use" and "application"?
Mr. Rowsell: When a physician is practising medicine or a pharmacist is dispensing, that is medical "use." The interpretation of the Canadian Medical Association is that this drug is used to treat schizophrenia, where the intent here is that this substance is used as a medicine. In the drug approval process in Health Canada, we approve certain uses of a drug. In that regard, we ask: What are the indications that that can be used in treating patients; what are the specific diseases or diagnoses that it will be used for? We are trying to make a distinction between medical use, industrial use, or scientific use. The word "application" would be applied in medical terms, but the CMA were concerned that, as a health department, we would dictate how this drug could be used, and it is the only way that a physician could use it. That was the concern they were expressing to us.
Senator Bryden: How does the term "application" fix that?
Mr. Rowsell: Unfortunately, it is not a term that is normally used. "Indications for use" is a term that would be in what we call a "product monograph" -- the directions as to how a drug would be used.
Senator Bryden: In the limited literature I read about new drugs coming, there is often discussion about whether the drug will have an "application" to HIV, or and "application" to cancer, and so on. The word is not "use." The terminology usually used in discussing new drugs coming on is relates to the "applications" of these drugs.
Mr. Rowsell: Those of us who have practised or do practice in the health care field would not interpret it that way.
Senator Bryden: Very well.
[Translation]
Senator Nolin: Have you attempted to address all of the concerns raised by the Canadian Medical Association or only this particular one?
Mr. Normand: We have discussed all of the concerns raised, in particular those respecting the powers of inspectors. We feel that there is no problem in this regard.
Senator Nolin: We will get back then to this matter.
Senator Beaudoin: If you are acting in response to the CMA's concerns, have you shown them your amendments?
Mr. Normand: No.
Senator Beaudoin: It is one thing to say that we will follow up on this matter, but if they disagree, we will be wasting our time. In life, one must try and avoid mistakes.
Mr. Normand: The problem definitely had to do with the word "use." To my knowledge, there was no problem with the French version. We did check with the law editors to see whether substituting the word "application" in English would be a problem, given that "application" was used in French. They told us that it would not. Based on their assessment, we decided to go ahead and use the word. This would indeed resolve the problem. They have long suggested that we change the word "use." This has never been done until now.
Senator Beaudoin: You must not forget that the two versions have equal status and if you change a word, you have to be very certain that the change is necessary.
Mr. Normand: Yes indeed, but we checked with the law editors to see if the same word could be used in both versions.
[English]
The Chair: Clause 55, page 39.
Mr. Normand: In clause 55(1)(d) on page 39, the English version was lacking Schedule VI, although we had it in the French version, and of course it is needed to cover precursors. We are asking that the English version be amended.
Senator Milne: May I ask where you found this one? I had not heard of this one before.
Mr. Normand: This has been known since the bill was printed.
Senator Milne: You did not mention it to me when you wanted me to move these amendments for you.
Mr. Rowsell: It should have been in the package.
Senator Milne: It was not.
Mr. Rowsell: Excuse me.
Mr. Normand: Clause 64 deals with some amendments to the Corrections and Conditional Release Act. It was rendered necessary because of the adoption of Bill C-45 during the First Session of the 35th Parliament. Bill C-8 modified Schedule II of that new act. Those amendments are consequential.
The Chair: As a procedural question, if we had passed this bill several weeks ago, would you have had to introduce a consequential amendment bill.
Mr. Normand: My colleague François La Fontaine, who was the drafter of the amendments, is here, and he may be in a better position to answer that question since it is a procedural question.
Mr. François La Fontaine, General Counsel, Legislation Section, Department of Justice: There would definitely have been a problem, so we are trying to avoid the problem before it occurs. The act would now be referring to the Food and Drugs Act and the Narcotic Control Act, which would be repealed, so we have to take care of that situation.
The Chair: You are lucky we have been so sober in our second thought.
Senator Nolin: If you recall, every year around Christmas we receive a huge amendment to the Criminal Code and various other acts. I think that is what it is to achieve.
Mr. Normand: Clause 65 deals with the Criminal Code, and the amendment adds subsection 7(2). Clause 65 currently refers to the two sections of the Controlled Drugs and Substances Act. The former version referred to the concept of trafficking, which included manufacture. The concept of manufacture has been taken out of trafficking to be put under the production offence, which is 7(2), so we decided to add 7(2) to cover the notion of production, which is already covered in the Criminal Code under section 100.
Senator Bryden: I apologize because I would prefer to be more precise, but does the amendment create a new offence under section 100(2)(c), the offence of unauthorized production?
Mr. Normand: No. Section 100(2)(c) of the code deals with firearms and restrictions that may be imposed in some cases. Currently, it refers to the concept of trafficking. By definition, trafficking encompasses manufacture. In this legislation, the concept of manufacture has been taken out of trafficking and put in a new offence, which is production, which also includes cultivation. If we do not refer to 7(2), which is the production offence, then we lose this notion of manufacture which was already covered.
Senator Bryden: Is it the case that now a person who is convicted of possessing a marijuana plant could have his guns confiscated? Was that the case before?
Mr. Saint-Denis: I do not believe the offence of possession is covered for the purposes of controlling firearms.
Senator Bryden: What is he is growing a marijuana plant?
Mr. Saint-Denis: If he is producing a plant, that would be cultivation.
Mr. Rowsell: Not possession.
Mr. Saint-Denis: Those are two distinct offences. Your question was whether possession is covered.
Senator Bryden: I apologise. I used the wrong term. I should have said, "unauthorized production of drugs." Just so I am clear, it is my understanding that unauthorized production by growing marijuana was not previously included in the definition of "manufacturing." That is why "production" is now made very clear. It is my understanding that, if a person is growing one marijuana plant in his living room, he is producing marijuana. Under this bill, in producing this one marijuana plant, he could lose his right to possess or to purchase weapons. Are you saying that has always been the case?
Mr. Saint-Denis: It is correct to say that this amendment will make do that, but that has not always been the case. The distinction has been made at the level of trafficking.
With Bill C-8 we will create two offences: one of trafficking, which comprises certain elements of the present trafficking offence, and an offence of production, which comprises certain elements of the present trafficking offence. However, the offence of possession also contains the offence of cultivation. Bill C-8 does not have a distinct cultivation offence. It is subsumed in the production offence. The net result is that, if someone is cultivating or growing a marijuana plant in his living room, he would be caught by this proposed amendment.
Senator Bryden: Then this is not simply a consequential amendment. It causes a penalty to be imposed that was otherwise applicable to trafficking, and it will now also include the production of a single marijuana plant. That was not so before.
Mr. Normand: It was the case as far as the manufacture portion of the offence is concerned, which is still the main portion of the production offence. Manufacture was common in trafficking. However, with respect to cultivation, you are right -- it was not included.
Senator Gigantès: My remarks may seem frivolous, but the implications of this scare me. I cannot tell a potato plant from a geranium plant until the plant blossoms. If there are marijuana plants on my land and I do not recognize them as such, am I guilty of producing marijuana plants?
Senator Beaudoin: No. There is no mens rea; therefore, no intention.
Mr. Saint-Denis: There is no intention.
Senator Gigantès: Would intention have to be proved?
Mr. Saint-Denis: Yes.
Mr. Normand: The intention to grow.
Senator Beaudoin: That may be difficult.
Senator Lewis: If they caught you fertilizing it, you might run into problems.
The Chair: Perhaps we could move to the new sub clause 65.1.
Mr. Normand: Clause 65.1 will be added as a consequential amendment to the new Firearms Act. We must introduce an amendment to that act. Paragraph 109(1)(c) of the act must be amended.
With respect to clause 71, the same comments would apply. It refers to the addition of subsection 7(2) to cover the manufacture portion, which has been left out with the change to the trafficking definition.
Clause 72 refers to the Criminal Code section which creates absolute jurisdiction offences and covers the numbering of items. It used to be ix and x, and now it will be x and xi.
In clause 74, there is a reference in French to section 15 instead of section 16. That is on page 50. It should read section "16(1)" instead of "15(1)".
Clause 76.1 is an amendment relative to the Firearms Act.
The same comment would apply to Clause 83.1 since section 176 of the Firearms Act modifies another section of the National Defence Act.
Clause 93.1 is a consequential amendment to the new Young Offenders Act.
There was some confusion with respect to clause 93.2 because it reads "If Bill C-7..." Bill C-7 is the act to establish a new name for the Department of Public Works. Its name will be changed. We needed to make a change in our act to cover that because we refer to that department under subsection 14(4).
Clause 93.3 deals with a change because the Firearms Act will be brought into this legislation.
Senator Bryden: Once again, it appears to me that this at least allows a judge to prohibit the use or ownership of firearms and the way that applies to sections of the Controlled Drugs and Substances Act. The cultivation of one marijuana plant is caught by section 515(4.1) of the Criminal Code, which is designed to take guns away from people who will probably do damage to themselves or to others. However, I do not think there is anything violent about growing one plant. There is no threat of violence. If the intention is to prevent the use of guns in violent acts or the threat of violence, is that not adequately covered under the general sections of the Criminal Code? Do we have to go so far as to have the judge take a marijuana grower's weapons or make an order that he may never apply for an firearm certificate?
Mr. Saint-Denis: Your point is well taken, senator. However, the offence of production does not just target those who are cultivating one plant. It also applies to those who are cultivating acres of marijuana plants. I can assure you that they are well-armed. It may very well be in our interest to ensure that those people, if they are convicted, are not allowed to have firearms.
As you pointed out, that section of the code gives discretion to the judge. It does not mandate the judge, and it does not impose an obligation on the judge to prohibit the possession of a firearm. However, the judge should consider whether or not the safety of the offender and other persons warrants a prohibition on possession of a firearm.
In my view, the judge is not likely to say to someone convicted of cultivating a plant that he cannot own a firearm.
Senator Bryden: Without analyzing the Criminal Code, it seems to me that there are adequate provisions in the Criminal Code for judges to prohibit people owning and possessing firearms if there is any offence with respect to which the continued ownership of the firearm might threaten public safety without singling this out. That is just an observation.
Mr. Saint-Denis: You are quite correct. However, you would have to say the same with respect to all other offences that are singled out under the Narcotic Control Act and the Food and Drugs Act. If you believe there are sufficient provisions -- excluding this particular provision -- that allow us to deal with firearms, then using that logic, there is no necessity to refer to other pieces of legislation which have resulted in convictions. Clearly, however, that is not the policy the government has intended to impose.
Senator Bryden: I become concerned when we attempt to cover under the umbrella of the criminal system things that were not meant to be there. People are overly concerned that, where there may be a violent act, there must be specific authorization for the judge to do various things. In the interpretation of most people, the Criminal Code gives the judiciary adequate authority to confiscate or prohibit weapons of any sort -- whether they are knives, guns or crossbows -- without singling out various offences.
Mr. Normand: As you probably know, section 515(4.1) of the Criminal Code deals with bail hearings. A judge can issue a condition for the course of the proceedings only. The judge must determine if it is required in the interests of the safety of the accused or of any other person. If someone else is involved, there would be more than one crime. This condition is only valid until conviction.
Senator Bryden: A provision in this bill allows for the confiscation of materials when an offence takes place. If the person is not charged or when the judge decides that the confiscated materials can be returned, the judge can have the person enter into some sort of recognisance. Presumably, he is not guilty of anything.
For example, let us say that the court has confiscated an accused's house or farm and then the court finds that it has no reason to keep it and gives it back to him. If the person then breaks the terms of the recognisance he would be in violation of an order of the court, which would make him criminally responsible. Have you considered that? I can understand a person having his property confiscated until it is determined whether in fact he is guilty of the offence for which he is charged. However, under this bill, if he is found not guilty and his goods are returned to him, he is then put under some direction of the court. If he violates that direction, presumably that in itself is an offence and he can be charged.
Mr. Normand: Section 490(9) of the Criminal Code deals with instances where a demand can be made when proceedings have been instituted but where the continued detention of the property seized is not required for the purposes of evidence. We have had instances where cars were seized as offence-related property, but we did not need the cars for evidentiary purposes and returned them. Obviously we could photograph the car and present it as evidence. At the end of the proceedings, once we had presented the entire evidence and the car was no longer in our possession, there was no way for the Attorney General to use its power to forfeit and to sell.
The purpose of this is essentially to allow for this kind of recognisance if the property is returned while the proceedings are still in force.
Keep in mind that the judge always has discretion in these matters. Ultimately, if the property is not forfeited, then the surety will follow its flow and go back to a person. A car is forfeited to ensure that there is sufficient evidence to link the car to the offence. The car would be offence-related property.
Senator Bryden: And you are convinced that it does not go any further than that.
Mr. Normand: No, because of the link to section 490(9).
The Chair: Senator Milne, have you finished with your questions?
Senator Milne: Yes.
Thank you, sir. I will move your amendments for you.
Senator Beaudoin: After this discussion of very technical problems, perhaps you will consider my question to be very general.
A moment ago, we discussed the problems of the administration of justice. There is also the discretion of the police and the discretion of the Crown attorney. My first reaction is that perhaps we legislate too much, and perhaps we criminalize matters that should be decriminalized.
I have only one major question with respect to this legislation, a question which I consider to be very important. In my mind, we should take the following attitude: criminal law if necessary, but not necessarily criminal law. In other words, if we may attain an objective without criminal sanctions, we should do so. It does not make sense to have too many laws in society. I am sure there are experts in Canada who can tell me if there is another way to reach our objective in this case instead of invoking criminal sanctions. The problem is that, in practice, 1 million individuals or citizens in this country may be prosecuted. I think that we rely too much on the criminal law. There is nothing stronger than the criminal law, but have you given any thought to the concept that perhaps we can reach our objective with some form of regulation?
Mr. Saint-Denis: Senator, you have raised a fundamental question which cannot likely be resolved in a conversation such as this. However, as you know, the Contraventions Act is an attempt by the government to try to decriminalize certain types of behaviour which we do not support by reducing the criminal taint attached to a conviction.
The net effect of the Contraventions Act, when it comes into force, will be to direct, in a totally different stream, the individuals who have committed offences but who will not be criminalized as a result. They may be required to pay a fine. There may be a ticketing scheme attached to their behaviour.
While there will be criminal offences, the individuals who commit such offences will not necessarily be involved in the massive procedural aspects of the criminal justice system.
Senator Beaudoin: In the famous case of Oakes, heard before the Supreme Court, section 8 of the Narcotic Control Act was held to be ultra vires because the court said it is like, "une mouche avec un marteau-pilon." It does not make sense.
[Translation]
I do not see why we should use a hammer to kill a fly. We have a very serious problem here. Drugs are very dangerous and clearly, we all agree on that. People are telling me that marijuana is far less hazardous, and while I am not an expert on the subject, I do wonder whether there is some way of regulating this substance without making it a matter of criminal law. This would be much better.
Legal experts have of course examined this issue, if not in Canada, then at least in other countries. It is all well and good to decriminalize something, but we have to substitute something in its place, and that is what worries me.
Senator Gigantès: Perhaps what we need is a constitutional amendment!
Senator Beaudoin: A constitutional amendment is quite clear and specific, but in this case, we are dealing with a criminal law matter. I think that we invoke criminal law too quickly, because it is easy to lay down the law when a crime has been committed. A good lawyer will be able to handle this and it will not be the end of the world, but resolving a problem without having to resort to criminal law when this is unnecessary, that can be difficult.
The fact of the matter is that I do not know of many laws, although I have studied quite a few, that have succeeded in dealing with this issue, but it surely must be possible. I wonder if this is not the kind of problem we are facing with Bill C-8. Initially, I thought it was a piece of legislation like any other. However, I have come to realize that this bill is extremely important. This is merely a general observation.
Mr. Saint-Denis: The solution would be for the House of Commons Standing Committee on Health, which is going to examine Canada's basic drug policies, to take a look at the same time at the best way of regulating various substances. For example, should a particular substance come under criminal law or not? We hope that the committee will take this initiative.
Senator Beaudoin: There are other problems. Some argue that it is no worse than alcohol or tobacco. However, tobacco poses a dilemma. Consider the Supreme Court decision. Here we have a product that everyone can use, at least in this country, and tobacco advertising is banned. However, the product is perfectly legal. Most likely, the rationale is that it is impossible to prevent people from smoking. This is precisely the same problem here. We say that we are going to invoke criminal law for a particular purpose, knowing full well that there may be one million people who will disregard the law. From a conceptual standpoint, I have a problem with this. That is all I wanted to say.
Senator Nolin: However, it is a very good question and it goes to the heart of the problem.
Senator Beaudoin: It is difficult for me to say that this problem will be resolved in a day or two. I have some difficulty grasping all of the issues. If we have no choice, then I will vote to the best of my knowledge, but I have the feeling that I lack information as far as this issue is concerned. If you say that the Health Committee will perhaps find a way to resolve this problem, then I say that we should summon committee members as witnesses.
Mr. St-Denis: The House Standing Committee has already indicated that it intends to take a serious look at this problem. They are going to take an in-depth look at the drug abuse problem and review the country's basic drug policies.
At the same time, they will certainly consider the issue of whether marijuana, for example, should be deemed a controlled substance.
Senator Beaudoin: In short, I do not have the answer.
[English]
The Chair: The bells are ringing. I would announce that the vote is set for 5:45 p.m. We will adjourn at 5:40 and return when the vote has been taken.
Senator Gigantès: We have a representative here from the Department of Health. We have heard much contradictory information about marijuana.
Since we last saw you, I have received information from some people whom I trust. One is a former prosecutor. That information indicates that marijuana has 17 times more tar than tobacco.
A researchers in the Liberal Party told me that a new strain of marijuana has been bred in Holland which is 30 time more potent, psychedelically speaking, than existing strains. We also hear that the Dutch are considering whether to lower the limit from 30 grams to 5 grams, presumably because marijuana is now much more potent.
Mr. Rowsell: They already have.
Senator Gigantès: The official perception of the harmfulness of marijuana is based upon what studies? When were those studies done and by whom?
Mr. Rowsell: The Department of Health has not collected all the available information on marijuana. That is another reason we have supported the health committee study in the House of Commons. Much information has been recorded over many years. That information is changing. As you report, there are studies of genetically-derived forms, hydroponically grown, which are much more potent and have a higher hallucinogenic property than what we have been seeing.
Most of the information is not necessarily scientifically based. Much of it is anecdotal. We feel the best way to resolve the matter is to search out as much information as possible from the scientific community and the people who have been involved with these substances.
Senator Gigantès: Do I understand that you will likely commission a study by scientists to analyze marijuana, including the ramifications of these new super strengths? Will you tell us about the possible harm of this drug? Is it different from what we hear from the pro-marijuana witnesses; and is it different from what we hear from the anti-marijuana witnesses?
We need some up-to-date scientific evidence. I realize that in the future some clever geneticist will change marijuana so that it will look like geranium plants, for instance, so that the evidence can be more easily disguised.
I feel ill-equipped to take a decision on this because you tell me you have done no studies. The house committee will not do studies; it will hear witnesses. I believe that a group of expert scientists should be commissioned to do a proper scientific study and tell us the current situation.
I feel I cannot maintain my earlier intent to support the decriminalization of possession of minor amounts of marijuana, 30 grams or less, because possession of 30 grams of this new highly potent marijuana means possession of a very dangerous substance. I would like to know more about this. Until then, I am not prepared to decriminalize possession or to lower the limits.
Senator Nolin: Maybe we should have the study to which you refer so we can share that information. I do not have that.
Senator Gigantès: I am asking for a public study.
Senator Nolin: I am referring to the evidence upon which you base your change of opinion.
Senator Gigantès: I am not sure about that evidence. It may be anecdotal. I was told by one of our researchers about the new plants in Holland, and I was told by a former Crown prosecutor about marijuana containing 17 times more tar. The Crown prosecutor is not a scientist, and neither is the researcher.
That is why I am asking that scientists study this substance. Until then, just in case the researcher and the former Crown prosecutor are right, I am not prepared to move towards decriminalizing something which may be a time bomb.
[Translation]
Senator Nolin: Like Senator Gigantès, you admit that to date, the Narcotic Control Act and Parts III and VI of the Food and Drugs Act work well. If we do not move to pass this bill fairly quickly, not much will change. This is not a matter of any urgency.
We could very well continue to live with the Narcotic Control Act and with Parts III and VI of the Food and Drugs Act and wait until the Health Committee has concluded its study of the drug strategy, as our colleague Senator Beaudoin suggested. Then, we could make the appropriate, informed decisions.
[English]
The Chair: Gentlemen, we should use our remaining time to ask questions of these witnesses. We can get into a debate later.
Senator Gigantès indicates that he has finished his questions. Senator Nolin, you are back on.
[Translation]
Senator Nolin: In your opening comments, you referred to Canada's anti-drug strategy and to reducing the damage associated with drug abuse. You then made the following comment:
[...] Canada's Drug Strategy attempts to place a balance between supply control and demand reduction [...]
I would like us to take a few minutes to look at the drug strategy and the balance between demand and supply. We have here a criminal bill. We have spoken often enough about this. However, I would like us to focus on the question of demand. Judging from your opening comments, I see that the Department of Health has been working on this bill for close to ten years. Did you take the time to examine what was done in other jurisdictions, send in experts and compare data?
I will be more specific. In the late seventies and early eighties, eleven U.S. states representing nearly one third of the U.S. population decided to decriminalize the use of cannabis. Our information shows that in these jurisdictions, consumption of the substance decreased, while it increased in other areas.
Australia started out by decriminalizing the substance in one province. If I can go by the evidence that I have here, the Minister of Justice has no objections to decriminalizing marijuana in other provinces. We have heard mentioned the case of Amsterdam. Therefore, have you compared statistics, examined the causes and looked at the impact of resorting to these new methods to reduce demand?
[English]
Mr. Rowsell: No, we have not examined in detail the statistics from these countries. The majority of clauses in this bill will address supply control. The only aspects which really contribute to demand reduction are those aspects which refer to treatment and rehabilitation.
Other steps are being taken by the department such as initiating needle exchange programs, working with the AIDS community, working in education, and working with the provincial governments in helping to provide direction for treatment and rehabilitation. In my own bureau, we operate the methadone program, trying to make substances available to assist physicians in treating addicts.
You have focused on the directions which have been taken in some of the states of the United States, Australia and the Netherlands. Those three countries are all signatories to the conventions.
As Senator Jessiman observed, in some Canadian cities, a conscious policy decision has been made not to enforce the legislation. The United States also has made a distinction between the federal jurisdiction and the next level of government. Decisions have been taken at the state level to move away from observing the conventions but, at a national level, those authorities have been signed.
I am not familiar with the data as to whether there has been a reduction or not. My only knowledge is based on a case in Alaska where the use of marijuana actually did increase. Because of the problems they were experiencing, the community decided to change the law. Alaska may not be representative of any other state. There may be circumstances there which led to that. Those situations must be examined.
Again, I do not want to sound like a broken record, but it is exactly the questions you are raising which we feel need to be brought out in an objective assessment of the issues. We believe that is what should be done by the House of Commons committee. We will try to pull together as much information as possible to provide to the house committee, but it would be up to them to make the judgments in the most unbiased way possible.
The bill focuses on supply control: the import, the export, and the manufacture of substances. It is not designed to deal with the demand reduction component of the strategy. Many departments are contributing to the strategy. Each has a role to play. Our role with this legislation was simply related to supply-control and how to bring all of these other partners together to deal with Canada's drug problem.
Senator Nolin: Do you not think it would have been appropriate for your department to undertake to look at those jurisdictions to at least learn why they are doing what they are doing and, perhaps, to gather some results which they could provide to the government to show what is going on out there? We are not living in a vase clos here in Canada. We are very much involved in the --
[Translation]
Canadian civilization does not exist. We live in a global community and whatever influences the Americans definitely has an impact on Canadians.
[English]
Mr. Rowsell: I agree. You earlier quoted the statistics from the alcohol and other drugs group. They are a unit within our Health Programs and Services Branch. They are the ones that take the lead on the demand reduction. On that side, they may have done these analyses. I, unfortunately, am not aware of some of the work that is being done by that part of the department. It may be that they have those results.
You asked earlier whether we should put this bill on hold and undertake the study. Senator Gigantès asked what we know about the potency of these substances; marijuana in particular. In Health Canada laboratories across Canada we do analyses for the police forces. When a substance is seized, our laboratories conduct the analyses for the court system.
We certainly have data which shows that the potency of marijuana in some areas, grown under some conditions -- namely hydroponic growth -- has substantially increased. In the early years, it was normal for us to see potency of around 3 per cent. We are now finding samples with up 28 per cent potency. There is a much higher potency of THC delta 9 in the country now. I am sorry that I do not know the answer with regard to the levels of tar.
You have often heard it said that we have 35,000 deaths due to cigarette smoking and none due to marijuana. One of the reasons for that is that we do not collect the data. When a death due to smoking is reported, there is no differentiation made as to what that person was smoking. That distinction has not been made in gathering the statistics. It is easy to say that we have zero deaths due to marijuana, but we do not know that.
Senator Nolin: On that point, Statistics Canada is producing those numbers. You have probably read the brief the Canadian Bar Association presented while the House of Commons was studying Bill C-7. Their numbers are from Statistics Canada from 1990. There are numbers. This is not something new. Someone out there is comparing all those numbers. That is what I am trying to get.
Mr. Rowsell: Last year, two delegations from the United Nations met with members of the House of Commons trying to convince them of the urgency of passing this legislation because Canada is a conduit for the diversion of drugs into many other countries. Large supplies of benzodiazepines have been diverted into eastern European countries and developing countries in the Caribbean, South America and Africa. This bill will give us the opportunity to stop the dumping of these drugs through Canada.
Senator Nolin: Can we not do that now?
Mr. Rowsell: No.
Senator Nolin: Why is that?
Mr. Rowsell: We have no legislation to control the import and export of benzodiazepines or precursor substances. Many people are coming to Canada, mainly from the United States and Europe, to buy precursor chemicals. They can take them back for use in clandestine laboratories. We presently have no authority to deal with that problem. The United Nations is very concerned that we are not upholding our obligations to deal with these problems internationally.
This bill deals with the concerns about marijuana much better than does the current Narcotic Control Act; be it simple possession or trafficking. If we do not move forward with the legislation, we will deal more harshly with people with regard to marijuana than if we do move ahead.
[Translation]
Senator Nolin: You referred to the study that the House of Commons Health Committee wishes to undertake and there is no question that we have an interest in it since we began reviewing Bill C-7, now Bill C-8. We are as interested, if not more so, in having some light shed on this matter. True, our concerns stem primarily from what we have heard from witnesses. As for the question that you just raised, there are indeed some very dangerous drugs and criminal activities going on in Canada which must be suppressed.
Earlier on, I suggested that we should perhaps postpone our vote on this bill and take the time required to conduct a review. Following this review, we could take the appropriate decisions from a penal standpoint and recommend to the government that it take more appropriate social measures, in light of our findings. Is this an urgent matter? That is my question. If you are saying that the criminal activities taking place in Canada should be suppressed as quickly as possible, then I would have liked to know about this earlier. We could have taken urgent steps to adopt these measures, even if this meant postponing the application of the rest of the legislation.
If we can move immediately to amend the Narcotic Control Act or the Food and Drugs Act, then let us do it. We must not -- and this is the point of my question -- maintain a prohibitive approach to drug control, either because we are party to international treaties or because foreigners tell us that we should act more quickly or because we have always done so.
We must make an enlightened decision. I believe the committee can give us this type of information. As an attorney, I must admit that I set great store by the opinion of the Canadian Bar Association and it comes down very hard on the proposed legislation in its brief. Let me quote an excerpt from this brief to you:
[...] the Canadian Bar Association is opposed to the passage of Bill [...]
At the time, it was Bill C-7, now Bill C-8.
[...] the section [...]
-- the national criminal law section --
[...] is of the opinion that decriminalizing the use of drugs has proven ineffective as a means of curbing drug use, reducing crime and improving the health of the general public. Many of the changes called for in the bill could result in a significant increase in the rate of imprisonment in Canada as well as in the length of sentences.
What is your reaction to this? I assume that this is not the first time that you have heard these arguments. How do you respond to these comments which, in my view, are very harsh?
Mr. Normand: First of all, you mentioned at the outset that you were referring to Bill C-7. If my memory serves me correctly, this brief was drafted before the latest amendments were made to the provisions respecting penalties and fines.
Indeed, amendments were initially been made, involving either the imposition of maximum fines which the judge is free to set, or the addition of new penalties for simple possession, under Schedule I.
Penalties have been reduced to present levels. Therefore, as far as the Bar's comment about penalties is concerned, I think the changes have been made.
Senator Nolin: However, the Canadian Bar Association was not referring solely to penalties.
Mr. Normand: No, I understand. However, the latter part of the comment referred to penalties.
As for whether decriminalization is a good thing, my job is not to defend policy, but to explain the bill; that is why I am talking to you about penalties.
Senator Nolin: I have a question for you. The LeDain report is now over 25 years old. Is that correct?
Mr. Normand: Yes.
Senator Nolin: What did your department ultimately do with this report? What measures did you deem it appropriate to implement further to the report's recommendations?
[English]
Mr. Rowsell: The report was submitted to Parliament and it was up to the members of Parliament to give direction to the departments. I was not involved with these substances at that time. Back in those days, I was a very young man.
Senator Nolin: As was I as a student in law school.
Mr. Rowsell: I was dealing with the submission of new drugs, not with narcotics and controlled substances. I am not familiar with what direct action was taken back then by the department.
[Translation]
Senator Nolin: Does the department recall whether the review undertaken by Justice LeDain was part of a legislative review of a particular bill or was the review being conducted in tandem with other legislative work?
[English]
Do you know if it was in the course of examining the bill, or was it done by way of a royal commission?
Mr. Rowsell: It was a royal commission that reported to Parliament.
Senator Nolin: It was not in the course of studying a specific bill?
Mr. Rowsell: No.
[Translation]
Mr. Saint-Denis: I can tell you that at the time -- not at the time the LeDain report was published, but later, in the late 70s and early 80s -- a joint initiative was taken on the part of three departments: Justice, Health and Solicitor General. The objective was to draft a document which would deal to some extent with the use of cannabis. For one reason or another, or perhaps because of the political agenda, the process produced no concrete results. The interest shown at the time in decriminalizing marijuana waned during the 1980s, more particularly in the United States, but also around the world. To my knowledge, a much harsher stance was taken on drug use internationally.
The enthusiasm for decriminalizing cannabis declined. Now, the pendulum is gradually swinging in the other direction. It is not that the LeDain report was unproductive, only that unfortunately, it produced no tangible results. A great deal of effort went into the process but no positive results were achieved.
If I recall, the Senate already examined a bill to decriminalize this substance.
Senator Nolin: Twice.
Mr. Saint-Denis: Then, as you can see, some effort has been made. However, no results have been achieved.
Senator Nolin: You have heard the testimony given and listened to the recommendations of other witnesses. To put it bluntly, these individuals cannot all be wrong and you cannot be the only one who is right. How do you reconcile these differences of opinion?
Senator Gigantès: The opposite may also be true, however. These witnesses may all be wrong and the others may be right.
Senator Nolin: Absolutely. There must be a happy medium. How can we go about reconciling these different viewpoints?
Mr. Normand: Which testimony are you referring to?
Senator Nolin: I read to you several excerpts from the Canadian Bar Association's brief. The question was also raised by the Canadian Foundation for Drug Policy. They even wrote to us again recently to provide us with even more evidence. Most of these witnesses told us that we were on the wrong track, and that prohibiting a substance was not the way to go. I believe the proper approach is the one now in place.
I know you will tell me that you received political instructions in favour of a ban and that as a result, Bill C-8 was introduced. Am I to understand that if the House of Commons, through its Health Committee, undertakes an in depth study of drug use in Canada, you are going to help this committee demonstrate that prohibiting the substance is not the only option and that other alternatives can also produce positive results?
[English]
Mr. Rowsell: I think everyone wants to see an in-depth, objective analysis of the situation. Whether it is a swing in the pendulum or whatever, the time is now for us to look at the evidence out there. You have heard, as you mentioned, some of the witnesses. During the House committee, we had representations from the international community, the United Nations and the World Health Organization. They would give you a different perspective. I think there is a need for a body to sit down and weigh the evidence on both sides and decide what is right for Canada.
Senator Jessiman: I would like to paraphrase two statements from 1972 regarding this subject. The first statement, made in 1972, was that "now" is the appropriate time for the principled discussion of the use of the law as an instrument for solving social problems about the non-medical use of drugs. Another statement was there is a standing tendency for drug problems to lead to law abuse. Both of those statements were made in 1972. That is how long ago this was. They were making the same statements then.
Senator Gigantès: They have been calling for abolition of the Senate since 1867.
Mr. Rowsell: Yes, those statements were made, but that was a Royal Commission which made a submission to Parliament, and we did not receive direction to do anything differently.
Senator Jessiman: I am sorry, I interrupted.
[Translation]
Senator Nolin: I have two further questions. My second one will focus on drugs not listed in the schedules to our legislation.
What if we were to ask the House of Commons to undertake its study and at the same time, we were to tell them that since they sent us Bill C-8, we have decided to adopt certain urgent measures? What if we told them that we had decided to stay with the existing legislation until the review was conducted, the review to which we have been referring for some time now? What if we were to tell them that upon the conclusion of the committee's work, we would adopt Bill C-8 as is or we would amend it in keeping with the findings of this review?
How would you react to this if I told you that we would be making this decision?
[English]
Mr. Rowsell: I honestly do not know. As I tried to explain, there are a number of administrative advantages to the current bill, Bill C-8. It may seem insignificant, but for manufacturers, pharmacists, and physicians who have to try to balance the requirements between Parts III and IV of the Food and Drugs Act and the Narcotic Control Act, it is a very onerous burden.
Senator Nolin: But it is not urgent.
Mr. Rowsell: It is not urgent.
Senator Nolin: You have told us what is urgent. The rest is to ease the life of professionals.
Mr. Rowsell: Yes.
Senator Nolin: If we consider the LeDain report and what happened after it, we obviously do not want an in-depth study of the usage of drugs in Canada, done by the House of Commons, to receive the same treatment as Mr. Justice LeDain's report received 25 years ago. That is why I am saying that such a study done in the middle of examining Bill C-8, with all the pressure that comes with the examination of the bill, would provide sufficient leverage to at least consider the findings of such an in-depth study. Do you not agree?
Mr. Rowsell: I can only say that, while I have been involved with this bill, under both a Conservative government and a Liberal government, we have been directed to bring forward this legislation. I think the government does want to take the time to look at the policy issues surrounding substance abuse, and I do not know how much time they wish to take or how they will proceed with it, and then come back with, perhaps, an entirely new piece of legislation or they may exclude marijuana from this bill and put it into a new bill, but we would still have this piece of legislation that we could administer on behalf of Canada.
[Translation]
Mr. Normand: One of the principle, and no doubt the main question that would be examined at the start of a study would surely be the decriminalization of marijuana possession.
This matter could be dealt with quickly with a simple amendment by way of an Order in Council or by amending the Contraventions Act. That could resolve the problem. As far as the structure is concerned, we are implementing a full seizure system.
At present, law enforcement officers must rely either on the provisions of the Narcotic Control Act or, at other times, on the Criminal Code, depending on whether they want to seize a substance or goods related to an offence. It all depends on the situation.
Pursuant to recent Supreme Court of Canada rulings, exceptional powers of seizure have been granted.
We have also had problems recently with a Supreme Court ruling in the case of substances seized in a dwelling-house. What we are proposing would resolve this situation.
The provisions in Part III relate to substances. The system provided for in Part III is much more complex than the existing one. For example, it makes provision for reimbursing people in possession of seized substances which are subsequently destroyed without reason. Such a provision is not in the existing legislation.
Part IV which focuses on inspectors clarifies their powers and ensures that they cannot inspect patient records. This is not in the current legislation. The bill has many things going for it. However, should a study reveal in one, two or three years time that certain substances should be decriminalized or that a softer approach should be taken, the recommended changes could easily be made by way of an Order in Council shifting a substance from one schedule to another or simply eliminating it and inserting it in another piece of legislation.
For this reason, we have no other comments, aside from our comments regarding the witnesses who have criticized the bill and our comments concerning the overall approach taken to marijuana.
When this bill was tabled, we explained it to organizations in Quebec and everywhere across Canada. Recently, I was in British Columbia and I only heard positive things about the bill. This remains a key issue. It is the question that comes up when we talk about the possession issue.
We feel that this is something that could be resolved very easily with a simple amendment, without having to go the parliamentary route, if Parliament were to decide to recommend, further to the study on marijuana, that the penalties be reduced.
Mr. Saint-Denis: Would it be possible to single out certain components of this bill and recommend that these be implemented, that the remainder of the bill be suspended and that the two existing drug laws be maintained?
Technically, I am not certain that this could be done so easily. This bill forms a whole package and cannot be easily divided into separate components.
Senator Nolin: I understand. We cannot say that we are going to adopt some provisions and reject others.
Mr. Saint-Denis: Given the system of penalties in place for substance-related offences, it would be difficult to devise a system that would correct more specifically the problem to which Mr. Rowsell referred and leave the remaining problems in suspense.
Moreover, you suggested that suspending the bill might prompt the House of Commons to quickly come up with a solution --
Senator Nolin: It is not so much that I want the problem to be handled quickly, but rather that I want some follow-up to these findings. That is my concern.
Mr. Saint-Denis: Based on the committee's findings, we could have a bill that is totally different from the one now before us.
The Standing Committee on Health will not simply look at the marijuana question. It will focus its attention on other narcotics and on the use of drugs and prescription medicines. The issue does not merely involve cannabis.
Senator Nolin: I agree completely. It will be looking at a new approach to drug use and so forth.
Mr. Saint-Denis: It is possible that this bill, even if suspended, may not be the right vehicle to bring about fundamental changes to our approach to drugs.
It is quite possible that we may need a bill which is totally different. There is no point in suspending the bill. Of course, I am going with the assumption that the House of Commons would be prepared to accept a final amendment.
Senator Nolin: Because another scenario is entirely possible.
Senator Beaudoin: I see!
Senator Nolin: We may well think that it would be good for Canadians, but again, Canadians have to want this type of review. The last thing we want is to force Canadians make a decision which, in the opinion of many, is not in their interest at this time.
That is why, in my view, an in-depth review is the way to go. If some findings are made, and there always are in this case, we can either choose to follow through on them or not.
We want the findings and the work of this committee to be credible. We have to be able to say to Canadians that we have done some work and achieved results.
The problem with the LeDain report and with the two Senate amendments in the past 25 years is that they have produced no concrete results.
Today, we face a situation in Canada where prohibiting this substance has not given us the results we had hoped for and the population has become increasingly concerned by the use of cannabis because it is the children who are using it. Whether we are talking about two or three million children, this is nonetheless a frightening statistic the department has given us. One quarter of the children between the ages of 15 and 19 use marijuana. These are the children of Canadians and Canadians have the right to be concerned. We have to appeal to them through the work that we are doing.
I am concerned about our sweeping this matter under the rug, adopting a prohibitive bill which definitely has very positive aspects and assigning to a committee, as was done in the early 1970s, or to a very credible judge who did good work, the task of alleviating the fears of Canadians. I am concerned that ultimately, 25 years later, nothing will have changed.
Mr. Normand: The difference is that back then, the issue was examined not by a parliamentary committee, but rather by a royal commission.
[English]
Mr. Rowsell: The big difference here is that the Royal Commission was independent of government. Therefore, the government had to accept or to decline its report. Members of the House will now be conducting the study. Believe me, they have exactly the same concerns as you have expressed, senator.
Senator Doyle: No, they do not.
Mr. Rowsell: I am sorry, but, yes, they do. Many members of the House expressed exactly the same sentiments as have been expressed here today.
Senator Jessiman: Is Bill C-8 exactly the same as Bill C-7?
Mr. Rowsell: No.
Senator Jessiman: Have there been some changes?
Mr. Normand: Just the ones that you were given today, senator.
Senator Jessiman: Did you know that Great Britain will be striking a royal commission on drugs?
Mr. Rowsell: No, I was not aware of that.
Senator Jessiman: Forget for a moment that you are members of the government.
The Chair: Senator Jessiman, they are here to represent the government.
Senator Jessiman: As individuals who know a lot about this, do not you really agree that --
The Chair: That is an unfair question, Senator Jessiman.
Senator Jessiman: Just a moment, Madam Chair. Do you not agree that it is not the use of drugs that is really the problem it is the abuse of stubstances, as is the case with alcohol, that is the problem?
Mr. Rowsell: That is the distinction I was trying to make earlier. Many of these substances have very valid medical uses. They are very potent substances, though. Therefore, yes, they are subject to abuse.
In the last few days you have heard about the medical uses of marijuana. We do not have the scientific evidence yet to look at those uses. It is anecdotal information only. People will claim, "Yes, it worked for me." We need to be able to assess, on a scientific basis, whether there is any validity to such claims.
Senator Jessiman: Do not take another 28 years, though.
The Chair: On behalf of my colleagues I thank all of you for your presentations today.
Honourable senators, I suggest that we not do a clause-by-clause study of the bill tonight but that we do it on Tuesday morning.
Senator Nolin: Madam Chair, my caucus has requested that we have a thorough discussion on this bill next Wednesday. Can we do something else on Tuesday and wait until Thursday to look into Bill C-8?
The Chair: That is perfectly acceptable, Senator Nolin. We will try to line up departmental officials to discuss Bill C-28 for Tuesday morning. Barring that, we will deal with Bill C-243 and hear from Election Canada officials.
The committee adjourned.