May 2nd 2018 - Social Affairs Committee with the Legal and Constitutional Affairs Committee Steering, the Aboriginal Peoples Committee Steering and Other Witnesses
Senator Poirier: My thanks to all three of you for being here. Thank you for the work your committees have done over the last few weeks to prepare the report you have just presented. I have some questions for you.
The first question I have is a follow up to the question my colleague Senator Seidman was asking. We were talking about Jean-Marc Fournier. Can you speak to the constitutional question that Mr. Fournier raised during the hearings?
Senator Joyal: I will ask Senator Dupuis, who is also a lawyer and a professor. She can certainly express the constitutional issue that is at stake there.
Senator Dupuis: I feel your committee is like ours, and is faced with the reality of hearing a lot of things. It is an extremely complex issue, and priorities will have to be established. You will have to do it, since you will have to provide us with a report based on everything you have heard.
However, I would like to draw your attention to the fact that there is a reason why the first recommendation unanimously passed by this committee is about the need to amend the bill to specify the provinces’ jurisdiction to legislate in order to authorize or prohibit cannabis with respect to possession, cultivation and propagation in specific places.
The position that was very quickly indicated by the Government of Quebec is actually supported by the Government of Manitoba. After Minister Fournier came to the committee, the Government of Manitoba, which we had invited, declined our invitation for its own reasons. However, Manitoba has indicated that it supports the comment made by Minister Fournier, who told us that there was not necessarily a conflict in either the objectives or the implementation of the two pieces of legislation, Bill 157, which Quebec is currently discussing and which is before the National Assembly, and Bill C-45.
However, the speech made by the federal Minister of Justice before the Legal and Constitutional Affairs Committee created some uncertainty, which led Minister Fournier to insist on the need to clarify the issue, namely that the provinces have the authority to legislate in terms of the authorization or prohibition. The reason they have come to this conclusion is that they do not want to leave it to the courts to discuss, for years, or maybe even decades, whether a piece of provincial legislation, either from Manitoba or Quebec, must give way to Bill C-45.
So the issue for them is that uncertainty has been introduced by the federal Minister of Justice’s speech, and they are asking for clarification on that. According to them, in any case, the legislation will be reviewed in three years, and it is easier to be very careful at first, even if the ban is revised afterwards, than to do the opposite and give authorization from the outset, and to realize, afterwards, that there is a big problem, that people are used to a system and that we want to take it away from them.
The other factor that has led us to this recommendation, which I think is our priority, is the fact that the situation is very different from one province to another, even if, currently, there is an overall national prohibition on consuming and producing cannabis. In other words, it is important for us to leave it up to each province to establish its own system based on its own socio-economic and legal situation.
Senator Poirier: Your report recommends unanimously also that the bill should be amended to impose a limit on the quantity of dried cannabis or its equivalent that an individual is allowed to possess for personal use in the home.
Can you tell us which witnesses who testified before the committee supported this recommendation? Do you believe there are any constitutional loopholes in the proposed legislation? Have you heard any comments on what that limit should be?
Senator Boisvenu: Most police forces will not be able to enforce a law that does not mention predetermined quantities. If you enter a home where the quantity of cannabis plants exceeds the reasonable limit, you may be faced with someone who is dealing. A limit will therefore need to be established.
We had set a limit during the negotiations with our colleagues in the Independent Senators Group, but we did not reach a consensus. There is already a limit of 5 grams for minors; there should be a limit for adults too. We could go to 30 grams, 50 grams, but I think that will be part of the upcoming discussions. It was agreed that a limit was needed, and all police forces have called for it. Now we must determine what it will be.
Senator Poirier: Thank you.
Senator Poirier: Thanks to all three of you, and all the members of the committee for the great work that you have done on this.
My question has to do with the challenges in the northern communities that you speak of in your report, particularly with the lack of addition treatments program in the North. Do the Northern residents feel that they are ready for this legalization?
Senator Dyck: No, they don’t.
Senator Poirier: Do they feel supported by the federal government to put the necessary tools in place? Do they have confidence that will happen?
Senator Dyck: I don’t know if we can answer that.
Senator Tannas: My own answer is no, but that’s not because we asked them that specific question in such a plain way.
Senator Poirier: Okay. Would additional time provide more opportunity to consult about what tools and support are required? Is that one of reasons why we are asking for more time?
Senator Dyck: Yes, definitely. We heard that there are no treatment centres in the North and you have to fly out to get treatment. And in other regions of the country, treatment centres are not in your own home community.
There are not enough treatment centres and facilities to deal with what we have now, let alone any increase that might occur after this bill comes into effect.
Senator Poirier: It’s very clear in your report how crucial this up-to-one-year delay is, which you are recommending for the communities due to all the concerns and the lack of consultation you feel that has happened there. And I think that has been very clear by the way you have stated it.
What consequences do you feel could happen if for some reason this recommendation is not accepted by government?
Senator Dyck: I think the witnesses were really concerned that, as other senators have noted, the rates of drug addiction in some communities and suicide are very high, the rates of graduation are very high, and there is concern that it will get worse. Those communities can’t afford that, particularly with the large proportion of young people. They are at a time right now where things could go really well just because they have so many young people. I think this would really slow the recovery of the population.
Senator Christmas: Senator Poirier, the current situation in many communities is already in crisis without Bill C-45. So you have communities that are traumatized, that have the generational effects of residential school and colonization. We already have serious mental health issues and serious addiction issues, and some communities are even dealing with suicide epidemics. Currently, some communities are in crisis. Add Bill C-45 to this mix, and my fear is the social impacts will only be dramatically increased.
We really have no social safety net that’s big enough to deal with these issues. For instance, Senator Patterson was one of our witnesses, and he testified that Inuit communities in the North are not ready and they are pleading with Parliament that, before this bill is passed, they have an opportunity to be ready. That is not only in terms of public education materials but also, as Senator Dyck mentioned, there are no residential treatment centres to deal with the current problem. How are they going to deal with the issues arising from Bill C-45 in the future?
That’s one of the reasons we have strongly felt that we have to deal with this whole mental health service and addition treatment centre issue prior to Bill C-45's coming into force.
Senator Poirier: Thank you. We hope that this plea is well heard.
Senator Dyck: In December 2017, the Assembly of First Nations passed a resolution at their chiefs assembly to delay the implementation of this bill by a year. They have already heard the concerns from across the country.
Senator Poirier: Thank you, chair.
Senator Poirier: Thank you all for the presentations.
I have two questions. The first one is for Mr. Spratt. We heard about people being turned away from the United States, not for having been charged with marijuana-related offences but for admitting to consuming marijuana in the past. And lately we were hearing more of that and, with the possibility of Bill C-45, the consequence of people trying to get over to the United States.
We have even heard things go as far as people being at risk of having their NEXUS card taken away and being barred from the United States. What are your thoughts on that?
Mr. Spratt: Those concerns are valid and legitimate. The stigma that some view these offences with remains so high that it might not even be a conviction that bars entry.
To illustrate the absurdity of the situation we are dealing with, I can tell the committee I have had clients who have had convictions, small fines, suspended sentences for small amounts of marijuana that are decades old and who are routinely turned away from the border. And I have clients who have been convicted of manslaughter and other violent offences who make it through the border no problem.
That is what we are dealing with. And that is an illustration of some of the harms that go along with continued criminalization. It is not because someone who has possessed marijuana is a danger to society on par with someone who has committed manslaughter, but that’s how these offences are viewed. That is the danger of criminalizing them and keeping them in the Criminal Code.
Senator Poirier: Do you think Canadians aware of that or are informed enough about that?
Mr. Spratt: I don’t think they are. A good illustration of that is the number of Canadians who believe it is already legal to have marijuana or, like the clerk at my local convenience store told me last year, having marijuana is legal one day a year as long as it is done on 420 on Parliament Hill.
It is humorous, but it shows that it is through education and social engagement that we change societal attitudes on what is harmful and not and what is dangerous and what is not. And it is not through criminalization.
Senator Poirier: My second question is for the Canadian Bar Association. The committee heard from different people who talked a lot about the education. We need more education on the risks associated with cannabis, but we don’t seem to have heard nearly enough on the education of the consequences of the law when it comes to possession of the home growth or age limit, et cetera.
In your opinion, are Canadians young and old well informed and aware enough of the consequences of Bill C-45? If they are not fully aware of the consequences of Bill C-45, what would be the impact on our juridical system?
Mr. Calarco: First of all, Canadians are not nearly informed enough about the impact of this legislation. There is massive misunderstanding, and I think the average Canadian has no idea what is in a very large bill.
People get their information from the news, and you’ll see a few seconds on television. That doesn’t tell you what is going on. Because of the lack of information people have, they will easily be able to transgress into serious criminality, and that will have a serious impact on our criminal justice system. It will add a lot more cases in the courts; it will cause a lot more delay. It will strap resources not only for the Crown, which has to prosecute these cases, but for individuals charged and for legal aid plans where legal aid will cover those.
There will also be many people whom legal aid will not cover, so they will have to face the criminal justice system alone. That will cause even more delay because the last thing any judge wants is an unrepresented accused person in court. I trust that answers you.
Mr. Lévesque: Clearly, no one is supposed to ignore the law, but that said this is a legal fiction in a sense. That does not necessarily mean that people are aware of this. I agree with the two previous speakers. The bar association has already said that there is a strong duty to educate the affected populations, especially youth. The Barreau du Québec has already begun thinking about this. Éducaloi, a non-profit organization that does legal outreach, will be developing programs specifically for youth. This is not systematic or mandatory, however. It will be added to the already full curricula of high schools and colleges. I agree with Mr. Calarco and the Canadian Bar Association that it is essential for the public to be informed of any detailed changes to the legal regime that are made. Otherwise, offences will be committed inadvertently.