Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 42 - Evidence - April 30, 2018
OTTAWA, Monday, April 30, 2018
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-45, an Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, met this day at 2:02 p.m. to continue the study of this bill.
Senator Art Eggleton (Chair) in the chair.
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
I’m Art Eggleton, a senator from Toronto and chair of the committee. I would ask the other members of our committee today to introduce themselves.
Senator Seidman: Judith Seidman from Montreal, Quebec, and deputy chair of the committee.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Poirier: Senator Rose-May Poirier from Saint-Louis-de-Kent, New Brunswick.
Senator Raine: Nancy Greene Raine from B.C.
Senator Bernard: Wanda Thomas Bernard from Nova Scotia.
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Mégie: Senator Marie-Françoise Mégie from Quebec.
Senator Munson: Jim Munson. My heart is in New Brunswick, but I’m an Ontario senator.
Senator Omidvar: Ratna Omidvar, Toronto.
Senator Petitclerc: Senator Chantal Petitclerc from Quebec.
The Chair: We continue today with our hearings on Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts. Particularly today we are focusing, in two panels, on the subject of home cultivation, or the four plants issue, as is part of the bill that is before us.
On this first panel we have a number of witnesses. Representing the Canadian Real Estate Association, we have Michael Bourque, Chief Executive Officer, and Randall McCauley, Vice-President, Government and Public Relations. From Anandia Labs, we have Jonathan Page, the Chief Executive Officer. By video conference, you can see on the screen that we have the Canadian Association of Chiefs of Police, Deputy Chief Constable Mike Serr, Co-Chair, Drug Advisory Committee. And from the Vancouver Police Department, we have Inspector Bill Spearn. Then, from Agriculture and Agri-Food Canada, we have Ernest Small, Principal Research Scientist, Science and Technology Branch.
We have this panel between now and four o’clock, some two hours. Let me start as they are listed on our agenda for today. I would ask all of our opening presentations to be no more than seven minutes, please.
Michael Bourque, Chief Executive Officer, Canadian Real Estate Association: Thank you, Senator Eggleton. The Canadian Real Estate Association represents over 125,000 realtors across the country. However, we are here today on behalf of homebuyers, property owners and their tenants.
Bill C-45 will not directly harm realtors, but it will impact their customers.
I will focus on one particular element of the bill: the cultivation of cannabis in dwellings, homes and apartments. Indoor cultivation can cause damage that will result in increased expenses, especially for landlords, who will then have to pass on these costs to tenants. This will raise rents for Canadians and will disproportionately impact lower-income Canadians.
The stated purpose of the bill is to protect public health and public safety, and yet the legislation ignores evidence that growing cannabis indoors can be hazardous to the home and health of homeowners.
Last month an agency funded by the Public Health Agency of Canada released a report confirming that indoor cultivation and processing of cannabis can introduce and exacerbate environmental health risks in a home. Just two weeks ago, the Federation of Canadian Municipalities singled out personal cultivation of cannabis as the most problematic issue towns and cities will face following the passage of this legislation. In fact, municipalities have struggled for years with major problems caused by the legal home cultivation of marijuana for medicinal purposes.
The legislation will allow individuals to grow four plants in their home. On the surface, this sounds moderate, but the legislation doesn’t limit the number of crops or the size of each plant. With proper irrigation and lighting, an individual could grow very large plants and harvest three or four crops a year. Yields could reach over 5 kilograms a year. At that level of production, four plants have the potential to cause damage to a dwelling, with associated health consequences to residents.
Health Canada and the Canada Mortgage and Housing Corporation both place indoor air quality as one of the most important elements to maintaining a healthy home. The federal government is spending millions of dollars researching indoor air quality, building and construction standards, yet the documented risks associated with increased levels of mould, spores and fungus when growing cannabis indoors seem to have been ignored in the proposed legislation.
Exposure to mould and fungus can cause a range of respiratory diseases. Senators need to consider the impact and hardship to people living in housing units in proximity to air pollution from this activity. Contamination from pesticides and fertilizers can lead to further issues with air quality, and these chemicals can also pose a risk to children.
How many thousands of apartments have shared ventilation systems? Many realtors have witnessed first-hand the damage done to homes where cannabis has been cultivated without adequate ventilation or appropriate electrical infrastructure. Improper installation and the use of grow-op equipment, including high-wattage lights and irrigation, pose safety risks. Growing four large plants in a room with heat from lights and excess moisture, without adequate ventilation, creates risks.
I hope you will also hear from fire chiefs, like Surrey’s Len Garis, as many have been vocal about the consequences, including fatalities, they have witnessed from these hazards.
We question whether personal cultivation is even necessary. Canada has the production capacity to deal with new demand for recreational cannabis thanks to a well-funded, well-capitalized cannabis industry. The company operating in Smiths Falls, Ontario, the former Hershey chocolate factory, is now employing more people than Hershey ever did.
After legalization, most Canadians will have ready access in stores and online to cannabis that has been grown in safe conditions. Arguably, there will be no clear need to grow your own.
Senators could reduce the risks associated with the legalization of home cultivation with a simple amendment to Part 1, Division 1, that would state:
Notwithstanding anything to the contrary in this act, an individual is prohibited from cultivating, propagating or harvesting any cannabis plants in a dwelling house until the Governor-in-Council, by order, declares that the province in which the dwelling house is situated has adopted codes and standards for cultivation, propagation and harvesting of cannabis plants in a dwelling house.
In other words, you need regulation prior to the implementation of home growing. This would be a prudent and responsible approach, one that respects the rights of provinces and allows the ultimate intent of the act.
The federal government should also provide a framework, available to provinces, territories and municipalities, on regulations and guidelines for the safe home cultivation of cannabis. These guidelines would be based on evidence and designed to mitigate the hazards that are already being experienced. If the purpose is to protect public health and public safety, then these provisions need to be in place before home cultivation is permitted.
Canadians voted for the legalization of cannabis, but it is a huge undertaking. I ask you consider the interests of people, young and old, who will be affected by home cultivation. What problem does home growing solve? And yet, how many problems does it create? If we’re going to legalize cannabis, we need to roll this out — pardon the pun, I couldn’t resist — in a careful, sensible way that will protect vulnerable Canadians. Thank you.
The Chair: Thank you very much.
Jonathan Page, Chief Executive Officer, Anandia Labs: Mr. Chairman, it is an honour to speak today on the important topic of cannabis legalization.
I am a scientist who has studied the cannabis plant and its chemistry and biochemistry since 1999. I am currently an adjunct professor in the Botany Department at the University of British Columbia and the CEO of a cannabis testing and biotechnology company called Anandia Labs.
I want to specifically address the subject of personal cultivation or home growing. This is clearly one of the most controversial aspects of Bill C-45, and it is important to discuss these concerns in light of the present state of knowledge about the cannabis plant.
Before I turn to the science, I’d like to state that I think it is fundamentally important that cannabis legalization includes the ability to grow the plant itself. The cultivation of plants is a foundational aspect of human culture. The advent of agriculture via the cultivation of plants and the planting of seeds is one of the key forces in the creation of human societies. Humans continue to have an innate urge to grow plants, as is now apparent as we Canadians emerge from our winter hibernation and return to our gardens.
Cannabis has been grown by humans for thousands of years and has served as a source of food, fibre and drug. Given this long-standing relationship, and the fact that we are legalizing use by adults, it seems untenable that we could contemplate legalization without allowing personal cultivation. Imagine being able to buy a tomato at the grocery store but being prevented by law from growing one yourself.
Some senators and witnesses are concerned that our cities will be overrun by dangerous cannabis gardens; others worry that cannabis plants in homes are dangerous for children. I think these concerns are misplaced and can be reduced by a better understanding of the risks involved.
One point is that children cannot get high from deliberately or inadvertently eating cannabis plants. Cannabis does not contain the drug THC but rather its precursor THC acid, which itself is non-psychoactive. Cannabis needs to be smoked or heated, for example, in baking brownies, to convert THC acid to THC. This means that a toddler accidentally nibbling a cannabis leaf will not become intoxicated. Even this is highly unlikely since cannabis is not sweet or colourful and is actually quite unpalatable.
A second point is that the cannabinoids such as THC are not volatile at room temperature. Although the plant can have a strong smell, that smell is due to chemicals called terpenes and not cannabinoids such as THC. It is impossible for children or adults to become intoxicated just by breathing the air near cannabis plants. Allergic reactions to cannabis are infrequent and not serious.
Although it is not easy to grow well, cannabis is not a special plant. The water, light and space needed for growing up to four cannabis plants in a private dwelling or a backyard are not more than a regular houseplant, and they are not cause for concern. The smell of cannabis, which arguably is one of the more difficult issues around its cultivation, can be mitigated by proper ventilation or air filtration.
Our homes contain many products that can harm children and youth: brightly coloured laundry pods, solvents, alcohol in unlocked cupboards and refrigerators, leftover painkillers in medicine cabinets. We already grow toxic plants such as philodendron, foxglove and yew. By these standards, cannabis is not a safety concern.
Will personal cultivation make cannabis more available to teenagers? This seems to be an area where drug education of our youth and parental supervision are better solutions rather than an outright ban on personal growing. The risks here are no different from those contemplated for cannabis purchased by adults and then stored in their homes.
I will also point out that it is unlikely that many Canadians will actually grow their own cannabis. I read the testimony of one witness to this committee last week who said that a 100-unit high-rise could contain 400 cannabis plants under the proposed legislation. While perhaps factually correct, I think this is an exaggeration. Canadians can produce their own beer and wine at home and they can grow tobacco for personal use as well, but the vast majority buy these products from stores. Similarly, most people will purchase cannabis rather than growing it, and it seems unlikely that homegrown cannabis will enter the black market on a large scale. The retail system that the provinces are now implementing, which is robust and growing, as the previous witness stated, will mean that cannabis is widely available for purchase.
Although Bill C-45 is silent on whether outdoor cultivation should be permitted for personal or commercial production, I will add that I think it is important that it is included or at least not excluded by an amendment. There are significant environmental costs to indoor production, including electricity usage. This is more on the commercial than personal scale. Outdoor production can mitigate some of these problems and should be considered an option. For small-scale personal cultivation, careful placement of four plants out of view of neighbours is a simple and reasonable security measure. For larger commercial production, I’m sure that Health Canada will mandate sufficient security requirements to protect outdoor crops from theft and diversion. I note that the majority of cannabis grown by the U.S. government for research purposes at the University of Mississippi is grown outside.
In conclusion, personal cultivation is an important aspect of legalization that enables our basic human connection to the plant world. I speak for both the plant and for gardeners when I say legalization without personal cultivation included is a half measure. The exclusion of outdoor cultivation for personal use and at commercial scale is also unnecessary.
Thanks for the opportunity to speak. I’m happy to answer questions later.
The Chair: Thank you very much. Next we go to the video screens and welcome the first of two who will come to us on video. That will be Deputy Chief Constable Mike Serr.
Deputy Chief Constable Mike Serr, Co-Chair, Drug Advisory Committee, Canadian Association of Chiefs of Police: Good afternoon and thank you. Distinguished members of this committee, by way of introduction again I’m Deputy Chief Mike Serr of the Abbotsford Police Department and Chair of the CACP Drug Advisory Committee. We are pleased to be given this opportunity to meet with you today and to discuss Bill C-45.
The mandate of the CACP is safety and security for all Canadians through innovative police leadership. The mandate is accomplished through the activities and special projects and some 20 CACP committees and through active liaison with various levels of government. Ensuring the safety of our citizens and our communities is central to the mission of our membership and their police services.
In terms of Bill C-45 and Bill C-46, our role from the beginning has been to share our expertise with the government to help mitigate the impact of this legislation on public safety. Extensive discussions with the CACP membership and various committees formed the basis of our advice.
We participated in a number of government-held consultations and provided submissions to the federal task force. We produced two discussion papers, entitled “Recommendations for the Task Force on Cannabis Legalization and Regulation,” on February 8, 2017, and “Government Introduces Legislation to Legalize Cannabis,” on April 28, 2017.
We have appeared and provided written submissions to the House of Commons and Senate committees on both Bill C-45 and Bill C-46. This is our fifth committee appearance on the issue of the legalization of cannabis.
While police leaders across Canada have identified a number of major themes which impact policing resulting from legalization, we continue to strongly advocate against in-home production and in-home possession aspects of this legislation.
With respect to in-home production, our members are of the view that realistically we do not have the capacity to enforce nor determine what is illicit and licit cannabis. Additionally, it will provide for additional opportunities for the illegal possession, distribution and over-production of cannabis. Also, we fear that it will pose a further risk to youth due to increased exposure and accessibility.
The cultivation of four plants is being greatly underappreciated. There are many variables. However, typically, each plant can produce approximately 1 to 3 ounces of cannabis, four times yearly. This amounts to a potential cultivation of 48 ounces per home per year, assuming that legal limits are adhered to.
Moreover, unlike the 30-gram possession of cannabis outside a dwelling, Bill C-45 remains silent on the quantity of cannabis permissible indoors. At this time, possession in a dwelling is virtually unlimited, thereby making it difficult to determine whether the cannabis is derived from a lawful or unlawful source or whether the amount in possession is in fact for the purpose of distribution.
Given these issues, we recommend that a limitation on indoor possession be imposed.
The Government of Canada, when this legislation was introduced, was very purposeful in stating that the goal was to legalize, strictly regulate and restrict access to cannabis in Canada. When it comes to personal cultivation and in-home possession, it appears that this goal has been overlooked. Certain provinces have indicated that they will apply further restrictions in this area. Other stakeholders, with expertise in the health and real estate sectors, for example, have also indicated concerns.
The CACP is recommending that the Government of Canada adhere to one of the strongest messages that came out of the Colorado experience with legalization, that being to take a slow and incremental approach and to continuously review and assess as time goes on. Let us catch our wind when legalization becomes a reality and agree to review in-home cultivation at a later date.
In conclusion, our recommendations are not intended to dispute the government’s intention of restricting, regulating and legalizing cannabis use in Canada. Instead, we raise these issues because we have concerns about the impact of this act and, as previously stated, we all have a responsibility to mitigate the impact on public safety, which is our primary goal from a policing perspective.
The CACP supports many of the overall goals of this act while recognizing that other stakeholders are better equipped to provide specialized knowledge in their areas of expertise. We also support efforts to deter and reduce criminal activity by imposing serious penalties for those breaking the law, especially those who import and export cannabis and those who sell cannabis to our youth.
Sincere thanks are extended to all members of this committee for allowing the Canadian Association of Chiefs of Police the opportunity to offer comments and suggestions on Bill C-45. We also look to answering your questions.
The Chair: Thank you very much. In addition to hearing from the chiefs association, we wanted to hear also from a police department that would be involved in dealing with this thing on a street-by-street, community-by-community basis. So we invited the Vancouver Police Department. They are both in Vancouver, as it turns out, so they’re both sharing the screen.
Next is Inspector Bill Spearn.
Inspector Bill Spearn, Vancouver Police Department: Distinguished members of this committee, by way of introduction, I am Inspector Bill Spearn of the Vancouver Police Department’s Organized Crime Section. I am also a member of the CACP Drug Advisory Committee.
On behalf of the Vancouver Police Department’s Chief Constable Adam Palmer, I would like to thank you for inviting me here today. I am pleased to have the opportunity to meet with you, provide information about our concerns in relation to Bill C-45 and answer any questions. Being mindful of the committee’s time, I’ll be brief.
The Vancouver Police Department is preparing for the legalization of recreational cannabis. We have participated in a number of consultations and expressed our concerns to different levels of government. We support the CACP’s recommendations outlined in the two papers highlighted by Deputy Chief Serr, and our concerns are the same as those of the CACP.
In the local context, one of our primary concerns with Bill C-45 continues to be home production. Permitting production within a residence goes against the objectives of creating a regulated environment, where priorities such as limiting youth access and deterring a black market should be paramount.
If we use our experience with medical cannabis production as a baseline indicator, overproduction will be an ongoing issue within a legalized recreational regime. We believe that home production will result in an increase in calls for service concerning odour, overproduction, fire, flooding and landlord and tenant disputes.
We expect an increase in the number of oil extraction operations that utilize solvents to remove oils from cannabis plants and are highly explosive. We also believe that home production will result in an increased number of property and violent crimes.
Having cannabis available to purchase inside government-approved stores and supplied by licensed producers, without allowing home production, would be our preferred approach. Home production could then be reviewed at a later time.
We support the CACP’s recommendation for a cannabis possession limit within a dwelling. Any limit should be reasonable and well defined to make a stronger distinction between personal possession and possession for distribution. Without reasonable possession limits inside a dwelling, it will be difficult to identify and seize illicit cannabis. This could result in indemnification issues and place law enforcement in jeopardy.
In conclusion, the concerns of the Vancouver Police Department highlight some of the impacts we believe this bill will have on public safety.
Thank you to the members of this committee for allowing me to speak, and I look forward to answering any of your questions.
The Chair: Thank you very much to both of you. We’ll get back to you when the questions start coming your way.
Finally, we have, from Agriculture and Agri-Food Canada, Dr. Ernest Small.
Ernest Small, Principal Research Scientist, Science and Technology Branch, Agriculture and Agri-Food Canada: I’m honoured to appear before this committee as it studies Bill C-45, the cannabis act. In the next few minutes, I propose to briefly review my studies of cannabis on behalf of the Science and Technology Branch of Agriculture and Agri-Food Canada.
I began my employment with Agriculture Canada in 1969, as an agricultural crop scientist. For almost half a century now, one of my specialties has been the cannabis plant, the species known as Cannabis sativa. This includes two basic classes of plants. Plants with very low amounts of the intoxicating chemical tetrahydrocannabinol, known as THC, are grown either for fibre from the stems or for their edible oilseed and are collectively known as hemp.
Plants with very high amounts of THC are called marijuana plants and, of course, they are used to produce the drug preparation called marijuana. The word “cannabis” is often used in a generic sense to refer to marijuana. Many advocates of the medical use of the drug think it’s more polite to talk about medical cannabis than medical marijuana, but it is really the same thing.
During my career, I have authored about 400 scientific reports, including 15 books. My latest book is a review, in reasonably simple language, of all aspects of cannabis science. This is available online in the Federal Science Library.
By the late 1960s, society had become polarized about the wisdom of marijuana prohibition, and the Parliament of Canada established the Le Dain Commission of Inquiry into the Non-Medical Use of Drugs, with a particular mandate to assess marijuana. In 1970, I was seconded half-time to provide botanical advice on cannabis to the commission and to prepare an extensive report on its agricultural aspects.
I want to acknowledge the tremendous support, over the last several decades, by Health Canada, which financially supported numerous of my studies on cannabis. In 1970, Health and Welfare Canada, subsequently divided, in part, into Health Canada, established a long-term joint program of research with AAFC into cannabis to be conducted by me, in association with chemists at Health Canada. The goal of these studies was to obtain basic scientific knowledge in order to base legislation on a sound footing. Because marijuana has been a prohibited, albeit popular, drug for many years, authorized scientific research has been limited, and a great deal of misinformation was in circulation.
In its wisdom, the Government of Canada has supported targeted research for decades. Starting in 1971, I grew hundreds of different varieties, both hemp and marijuana, on the Central Experimental Farm, and these were analyzed chemically. This research established clearly that many varieties of cannabis plant have insignificant amounts of THC and can be grown without fear that they will be utilized as a narcotic.
Conversely, many varieties have large amounts of THC, and of course, these have been favoured for illicit purposes and, in more recent times, for medical usage. I proposed that low-THC varieties, with less than 0.3 per cent THC, be defined as a class of plants that can be considered for legal cultivation because their THC is too low to merit concern.
To my great satisfaction, this criterion has been employed in numerous countries, including Canada, as the basis for allowing hemp cultivars to be grown. In 1997, after about 60 years of prohibition, Bill C-8, the Controlled Drugs and Substances Act, was amended, allowing Canadian farmers to grow hemp.
Prior to the re-legalization of hemp cultivation, the rationale for Agriculture and Agri-Food Canada’s participation in cannabis research was to assist the Government of Canada, particularly Health Canada and Justice Canada, in conducting research on the harmfulness and control of cannabis.
With the resumption of hemp cultivation, a mandate was added to assist the expanding hemp industry to develop, supported by both Agriculture Canada and Health Canada. Several contracts between Health Canada and the private sector supported hemp-oriented research that I conducted. For example, with the support of Health Canada, I was able to establish storage conditions to maintain hemp seeds in a viable condition for many years.
In return, I have been a member of Health Canada committees formulating and modifying regulations, controlling hemp cultivation in Canada and annually reviewing cultivars that are allowed to be grown.
Similarly, our sister organization, the Canadian Food Inspection Agency, has been responsible for conducting hemp purity trials to maintain hemp variety quality, and for years I have assisted them in this activity. Notably, several contracts with private sector companies have also supported collaborative hemp research with Agriculture Canada.
The activities summarized here have contributed significantly to Canada becoming the world leader in developing hemp as an oilseed industry.
In 2001, the Marihuana Medical Access Regulations provided medical marijuana to Canadians. The main way patients could obtain medical marijuana was to purchase dried material from a private company, Prairie Plant Systems, which had contracted with Health Canada. A cooperative project between the firm and Agriculture Canada, conducted by me, was key to establishing a production system. For 12 years, until 2013, the marijuana strain I selected was the standard form of medical marijuana in Canada and was used by about 100,000 patients. Until 2013, I was tasked with maintaining the reserve of seeds of the standard medical strain on behalf of Health Canada.
Finally, I would like to emphasize that I and my many colleagues at Agriculture Canada have expertise that can contribute to the safe and efficient implementation of government policies concerning marijuana. Thank you.
The Chair: Thank you very much. That completes the speakers list. Now we’ll get into questions from members of the committee. Again, we’ll operate on the basis of five minutes, which covers both questions and answers, so it would be best if you directed your question to a specific panellist or two. I note Mr. McCauley is here with Mr. Bourque to answer for the Canadian Real Estate Association. So please direct your question; that way you’ll get more into your five minutes rather than getting everybody to answer, which could take up the whole five minutes.
Senator Petitclerc: Thank you. I direct my questions to our guests on the screen in Vancouver, Mr. Spearn and Mr. Serr.
You have both touched on this from different angles, but before digging into the home production topic, I would like to get a sense of the scale of the risks and challenges. From some witnesses we hear that it’s going to be pretty minimal and not that big a challenge, and then we hear the total opposite, that it’s going to be very challenging.
I would like to hear from you about your experience, what you know internationally and what we know from the medicinal experience already in place. What we should expect in terms of scale and challenges for you in particular in monitoring?
Mr. Serr: I’ll start off. With regard to the medical regulations, in Canada we have consistently seen overproduction and diversion of the product with persons who have licences to grow medically. So it certainly is a challenge for us.
With regard to the four plants, I think one of the challenges for us is capacity. As this legislation starts to unroll, our focus as law enforcement will be organized crime. We are very engaged with the opioid crisis, so managing persons who may be overproducing with, say, six or seven plants, it will be challenging for law enforcement to be engaged in those types of investigations. The capacity for us to be able to do that is going to be a challenge.
A third point I’ll raise is youth and diversion to youth. What we know from Colorado State is that 45 per cent of youth were able to get their cannabis through an adult who obtained it legally, and 22 per cent of the time it was from a parent. So, of course, some of that is from a store, but some of that is also from diversion of product that was grown. From our perspective, we want to protect the youth.
We also have continued concerns about there being no limits to the amount that can be held within a private residence. That’s a lot of marijuana. As we said, 12 ounces every three to four months is a significant amount and exceeds what a typical heavy user would use in that time. So where would the excess cannabis be directed? Unless it is stored properly, there is a shelf life to that.
Mr. Spearn: Recently, the Vancouver Police Department had a few members go down to Seattle and liaise with members of that police department to get an idea of some of the challenges they have faced since 2012 with the implementation of recreational cannabis down there.
Among the things they’ve run into since that time is an increase in large-scale marijuana grow operations and an increase of street-level trafficking, and this is due to the disparity between a black market price versus a regulated price. They’ve also run into an increase in the number of these oil extraction labs that I talked about, which are dangerous and explosive, and an increase in impaired driving, break-and-enters, armed robberies and other property crimes that revolve around cannabis.
I think you asked about what other jurisdictions that already have legal recreational cannabis are facing, and that will give you an idea.
Senator Seidman: Thank you all for your presentations. I might start by addressing my question to Mr. Bourque.
I’m sure you’ve heard that some witnesses and experts have told us that we have nothing to worry about when it comes to cannabis home growing because it amounts to little more than tending to a plant at home, and it’s no different than a house plant. We’ve even heard that it’s good therapy to grow plants.
So on the face of it, four plants per household might not sound so bad, and I understand that the bill places no limits on the size of the plants.
Could you perhaps paint a picture for us of what this might actually look like in a home? So we have four plans, what, in a small corner, or could it be in a whole room? You alluded to how much four plans could actually produce in a year, but you might tell us again. Also, could four plants sustain a commercial grow operation?
Mr. Bourque: Thanks. There are a lot of questions in there, so let me try to unwrap it a little bit.
I think the amount I said was five kilograms. That’s based on growing plants very quickly, because you can use lights and fertilizer to grow them. There’s no limit in the size of growth. It could be the size of me. It’s not unusual for a plant to be that big. There’s no limit to the width of it.
What realtors have seen in homes is typically where there have been more than four plants grown, but as the constable was saying, they won’t have the resources to monitor whether somebody is growing five, six or seven plants.
The point, from a housing standpoint, is that you’re going to see damage to the home, and this might be overlooked by a home inspector. The second owner gets this house and then the home inspector finds a problem, and you could devalue the house.
The problem within a rental context is that shared ventilation systems where you’re growing and smoking marijuana are going to create all kinds of problems. I think that’s reflected in the police suggesting there are going to be many more service calls.
What I think is important, though, is to really just address the mythology that seems to exist that there’s going to be a sort of benign approach to this, the sort of aging hippy who is growing their own plant to smoke it. In B.C., the BC Hydro folks found that there were 40,000 dwellings operating grow ops, and that’s in an environment where it’s illegal. I think you can safely expect that people are going to take advantage of the fact that it’s legal to grow plants, and they’re going to do so in a way that isn’t necessarily safe. They’ll have, perhaps, electrical problems and other things that will arise as a result of not knowing what they’re doing.
It really comes back to the point that the government was elected with a promise to legalize, but the fact is, home growing is a whole different thing, and it unleashes all kinds of problems that have been identified — some of which have been identified today — and yet I don’t see the solution that it’s providing.
Senator Seidman: I presumed that in a multi-unit residential building, this would be an issue not only for condo owners, for example, but also for landlords who rent apartments.
Mr. Bourque: I think it’s not a stretch to suggest that landlords who have rental buildings will try to convert those to condominiums where they can have more control over what goes on within the building, and then that will decrease the rental stock, which is already at a premium in places like Vancouver and Toronto. More lower-income Canadians rent than own, so they are disproportionately affected by these kinds of policies.
Senator Seidman: If I could just move over to the police chiefs for one moment, and then on my second round I’ll come back at you if I can.
You’ve talked about this being unenforceable. We’re just hearing now about what we could find in a home or in multi-unit buildings. Could you speak quickly to that, and I hope to come back to it.
Mr. Serr: Very briefly, as far as a priority for us to attend if we were to receive information that someone is growing five or six plans versus the legal four, where that would be a priority for law enforcement, certainly as legalization unfolds, we have a lot of other priorities, namely organized crime and more of the larger scale. For the most part, it would be a low-priority call for law enforcement, and it would be very resource intensive as well. I’ll leave it at that and await your next question.
The Chair: Okay. Let me move on. By the way, on any of these questions, if any of the other panellists want to weigh in, please signal to me. It depends on the time that’s left in the senator’s time frame and whether the senator wants to work you into that time frame. But signal to me, and I will bring it to the attention of the senator, if you know what I mean.
Senator Munson: Thank you for being here. Anyone can answer this question. There seems to be a mild case of Reefer Madness hysteria taking place.
In any case, in the Tobacco Act, a person can cultivate up to 15 kilograms of tobacco at home, but who do we know does that much? In the country today, there must be tens of thousands of people who are growing marijuana in their homes illegally. I’m curious about how you address this issue. It hasn’t seemed to cause a major concern before, unless I’m missing something, of police swooping in on four, six, eight plants or whatever.
Also, if you look at the Tobacco Act and the exemption, it’s manufacturing for personal use. That goes on everywhere across this country, yet we don’t hear that much outrage and hysteria, saying, “Please don’t grow tobacco in my 100-unit apartment building because I could get sick as well.”
I’d like to have some kind of balance in terms of approaching this issue, if anybody would care to address it.
The Chair: That’s addressed openly to anyone on the panel. Mr. McCauley and Mr. Page.
Randall McCauley, Vice-President, Government and Public Relations, Canadian Real Estate Association: Thanks for the question, senator. I think one of the primary differences is, first of all, the availability of tobacco. Despite recent efforts to crack down on it, tobacco is readily available everywhere, and there’s no need to grow it at home. I would submit the same would likely happen with marijuana, given there’s a fundamental difference in Canada versus many other jurisdictions that have legalized marijuana, including most of them in the United States.
In Canada, it will be available by mail. The provinces will make it available. Where it’s not available by the provinces, you can go online and the federal government will make it available.
You have to keep in mind that in Colorado and those other states, home delivery doesn’t exist. In fact, the Colorado Senate just voted it down. So Canada, unlike any other jurisdiction, should have an ample supply of marijuana available to everyone who wants it. Why would you go through or want to risk the potential consequences of growing it in home where, I think, the possession limit when transporting it on yourself is 30 grams, and there’s no limit in your house?
All the marijuana you could possibly need will be made available by the provincial and federal governments without any of the attendant risks or confusion outlined by the Federation of Canadian Municipalities, realtors, home inspectors, appraisers, and the list goes on. I think that’s one of the fundamental reasons we see that this does not solve any problems yet potentially creates many.
Mr. Page: I was going to respond to that and also to the questions around how big a space are we actually talking about here. Tobacco plants can get quite large. Cannabis plants can get quite large as well, but in general, in a commercial setting, we’re talking about one plant per one and a half feet. In the area that I’m sitting in here, this would be the area suitable for four plants.
I think people who are going to five kilos annually would like maximum capacity, not a corner of an apartment or the patio of someone’s condo. The largest cannabis plants in the world could generate that volume of material.
Dr. Small referred to Prairie Plant Systems earlier. This is the commercial producer in Saskatoon that had the contract for so many years. I think they were about 30 grams per plant on average per harvest. It’s not a huge amount of material. It’s not bales of cannabis that are being produced.
In terms of the moisture, you can have Norfolk pines to the ceiling in your apartment, and other plants. You water those plants every day, and they’re generating moisture. It’s not particularly damaging to the house or to the patio. Obviously we can plant a fir tree in an apartment and it would be damaging, but that’s not what we’re talking about with cannabis.
As well, we’re hearing from the law enforcement representatives a very important description of the world that they’ve been working in for a number of years where we’ve had a black market in cannabis and there has been over-growing of cannabis and Canada’s medical cannabis producers in some instances supplying a black market.
What we need to think about with Bill C-45 is we’re trying to close that off. We’re going to have a legal supply. The idea that basements and garages and barns are going to be filled with these illicit grow ops and we can extrapolate the sort of problems with mould, moisture, smell and the rest of it to this very small, limited, four-plant limit is not realizing that legalization is happening and prohibition will soon be over.
Senator Mégie: Mr. Page, is it absolutely necessary to use pesticides and fertilizers when growing plants indoors?
Mr. Page: In terms of the use of those materials for cultivation indoors, yes, all plants need fertilizers. That can be simple garden store soil with the fertilizer that’s already there. It could be organic fertilizer from your compost. It could be chemical fertilizer in some situations.
In terms of pesticide use, there’s no requirement to use pesticides for cannabis. In fact, the current medical cannabis regulations and the licensed producers who grow under those regulations are prohibited from using the majority of chemical pesticides. There are 20 or so benign pesticides that they can use. You absolutely don’t need pesticides to successfully grow cannabis.
Senator Mégie: Thank you. I have another question.
Does someone want to add something to that answer?
Mr. Bourque: I would like to add to that. Again, this relates to the mythology of the benign producer versus the person who has other intent. Perhaps we’re not creating a black market, but we’re going to create a very large grey market for cannabis because you would be allowed to grow, and even though the average would be small plants, you can grow very large plants and do it as quickly as possible.
If you look at the experience of Canadian farmers in just about every crop in Canada, the fact is the science allows you to grow these record crops, and it’s thanks to fertilizers and other science that people are able to grow them very rapidly. What we’ve argued for is an amendment that would put regulations in place before we allow home growing. If you had proper regulations, then maybe you could limit to some of these smaller plants less frequently, and you can do that in consultation with law enforcement and others.
We have a list, and we’d be happy to table it, that has about 19 organizations. I’m sure this is not an exhaustive list of organizations that are scared of the repercussions of home growing because of the people who will grow it and who will allow their product to enter the grey market. Since anybody who’s over the age of 25 will be able to grow it legally, then this leads to people who are underage having access to the product.
Senator Mégie: Thank you. Mr. Bourque, regarding shared ventilation systems in apartment buildings or duplexes, I understand that, even before legalization, a home where marijuana was cultivated was very difficult to sell on the market. The value of the property decreases, even if one can find a buyer. In addition, there is the problem of ventilation. As you have proposed an amendment which would allow marijuana to be cultivated, tell us what you feel may become a problem for homeowners in the future.
Mr. Bourque: It is already a problem for homeowners. Now, it will be a problem for apartments, when renters have the right to cultivate and smoke marijuana. Once they have acquired that right, it is difficult to take it away. This will allow residents to smoke and cultivate cannabis, which will not improve air quality.
Senator Mégie: Thank you.
Senator Poirier: Thank you all for being here and for your presentations.
My first question is for Mr. Bourque from the Canadian Real Estate Association. In your presentation you talked about the possible problems of indoor air quality. You talked about respiratory diseases, mould, spores, fungi and things that could affect the home.
Can you share with us what a short-term or long-term consequence to a house structure would be if they have that type of air quality of mould, spores and fungus, and how it would affect the home?
Mr. Bourque: Thanks for the question. First, I’m not a scientist but we’ve done our homework on this and we’ve looked at what experts have been saying. We also have the benefit of the experience of tens of thousands of realtors who have been in these properties where there have been grow ops. For years, the police have familiarity with drug labs that are in homes that are much worse than just marijuana cultivation, where there is sewer damage and all kinds of moulds and potential explosions from the precursors that are being used to make drugs.
Realtors have had long experience dealing with these kinds of properties. It’s not very difficult to find someone in the real estate business who has personally encountered a home that has been affected because people have grown large quantities and have not done so properly. They rewire to the panel in an unsafe way. This creates fire hazards. They don’t have proper ventilation. There is a lot of humidity. Often they’re hiding this growing so they’ll have it in a closed-off room or in the basement. A good realtor will ensure an inspector is brought in and a thorough inspection is done on a home, and that’s usually when they’ll find the problem.
The Chair: Mr. Page also wanted to respond. Is that okay?
Senator Poirier: I just want to add something to it, and then if you could please respond, I would appreciate it.
Do you feel there would be an impact on the valuation of the home? Also, in my local end of the province lately we started hearing that some insurance companies are saying they fear that it could increase the cost of insurance. One mentioned to me that their insurance company said they would even make that a question when you insure your home, “Are you growing within your home,” and that could affect it. Could you comment on that, and if other people could comment on the first and second part of the question, I would appreciate that.
Mr. Bourque: There is absolutely no question it impacts the value of the home. You’re right, there are insurance companies and mortgage insurance companies saying they want to know if somebody has been growing, and now they’re in a quandary because if it’s grown legally, what are their rights? They have many concerns as well.
Mr. McCauley: I could add to that, senator. Because there are no remediation standards across the country in terms of what to do once you discover mould or fungus growing in the home, what we’ve seen is mortgage insurers are reluctant to offer insurance on that property, and financial institutions are reluctant to lend money against that property. So what you’ve effectively done is taken that home off the market. We’ve seen remediations from ripping all the walls down to the studs to make sure you’ve gotten rid of all the mould for the home to be palatable to those institutions willing to put it back on the market. You’ve heard the evidence from BC Hydro 40,000 grow ops while it’s illegal. Who knows what’s going to happen when it’s legal, but, when you take homes off the market, that creates secondary and tertiary problems in terms of the availability of property as well.
Mr. Page: I think what we’re hearing here, though, are facts and figures, if I could call them that, based on large-scale, commercial, illicit grow ops. When I hear the term “grow op,” that does not describe the limited four-plant personal cultivation as contemplated in this bill.
In terms of moisture, having a shower without the fan on, in a basement, over a period of time, will probably put more moisture into a home than four plants that are just watered judiciously in regular pots.
My house has more than that nine square feet just of regular orchids that my wife really likes. In terms of the moisture coming out of those plants, I’m sure that boiling a pot of spaghetti in the kitchen is generating more moisture. So I don’t think we can fear monger based on some of the horror stories around illicit grow ops when we’re talking about four-plant-limit personal cultivation.
Senator Stewart Olsen: I’m just going to go over the safety of the plants themselves, if you don’t mind. This would be for Dr. Small.
You mentioned that you had been developing many of the cannabis plants, et cetera. Years ago, the marijuana that you would buy on the streets was nowhere near — I’m told — the strength that it is today. I’m wondering, with the home-grow operations, do you have to have a special seed to grow those extra strong plants, or is it the method of extraction? What it comes down to is that then you have a whole bunch of plants that are producing a very strong drug. I worry that this will not protect Canadians. There are no quality controls over what’s being grown in the homes.
Should that be distributed outside the homes or even to the people in the homes?
I’m wondering about how you safely grow plants. Should that be something the government should get into teaching people? Because they’re saying, “Go ahead; it’s all fine.”
Mr. Small: You’ve asked a very broad question, and I know I’m required to answer briefly.
I find it a little difficult to accept the idea that at this time the Government of Canada is going to issue a manual on how to grow cannabis for the average consumer, although maybe it isn’t the worst idea in the world.
I do think there are legitimate safety concerns for growing cannabis indoors that relate to the question of mould production. Also, the way that illicit cannabis is grown sometimes is rather unhealthy. I’ll just leave it at that.
In terms of strength, it is true that modern strains produce larger concentrations, larger amounts. It is also true that people have learned — and this is the case commercially — how to trim off the weaker parts so that the final product is quite concentrated, kind of like producing rye whisky as opposed to beer.
However, I also share Dr. Page’s basic philosophy that it’s nice to allow people to grow plants. Excuse me for saying so. Even though this is not your typical plant, it does provide an opportunity for many people to become amateur horticulturists, and, in my opinion, it can be done in a safe fashion. It can also be done in an unsafe fashion, as I think has been pointed out by several parties here.
From my perspective, I really can’t predict what the present legislation would do in terms of safety considerations. To me, it’s a bit of a gamble.
Senator Stewart Olsen: Thank you. I really want to get down to, though, what I perceive as a danger, an unforeseen danger, perhaps, that people growing the plants in their homes will be producing varieties. You can’t help it. You just want to make it better. You’re cultivating the best, and you’re growing the best. It’s like people who do their own wine at home or their own beer.
I’m just going to be worried about how you manage to keep people safe with this kind of thing. I am speculating; you’re right. But you managed, in your development, to keep people safe. You recommended the strains and the dosages for the medical marijuana. If people are growing their own, how do you manage to keep people safe?
Mr. Small: Medical marijuana is produced with practices that are far more stringent than are possible for your home grower. For example, medical marijuana is commonly irradiated to remove microbiological contamination safety issues. Commercial medical marijuana — and, indeed, this will be the case for recreational marijuana — is produced with careful attention to humidity so that mould possibilities are kept low. Also, you can control fertilizer. Even if you use pesticides, you can control your chemical inputs.
That being said, for recreational marijuana, you’re not necessarily talking about a population that is immune-compromised and much more susceptible.
One can, I think, only examine the general situation in Colorado, Washington, elsewhere, as people are doing, and draw one’s own conclusions about the level of safety involved. I don’t think there’s a clear evaluation available at this time.
Senator Raine: The more I hear, the more questions I have.
I’d like to ask Dr. Small, if you don’t mind telling me: You say they’re now growing a standard medical marijuana. What is the THC level of that?
Mr. Small: The marijuana strain that I selected could be altered somewhat, but, generally, it produced a THC concentration of around 12 per cent.
The kinds of concentrations that are currently being reported by commercial medical marijuana suppliers are kind of artificial because what’s done is that the part of the plant that is highest in THC concentration, namely, the flowering parts, are often carefully trimmed away so that the larger parts of the plant, the leaf-like parts — they’re called bracts — which have lower THC concentrations, are trimmed away, artificially building up the THC level. That’s done because high THC concentration is a selling point in many marketplaces. People like the idea of purchasing something that’s stronger. It obviously is problematic in that respect.
Senator Raine: If you don’t mind me following up, I thought that what you were looking for in medical marijuana was a high CBD and low THC. What would the CBD levels be in the standard medical marijuana?
Mr. Small: Both THC and CBD have medical properties. There are indications that they are independently and collectively useful for certain medical conditions.
In the main, the recreational market has gravitated very, very strongly to high THC levels and very low CBD levels. On the other hand, there is evidence that cutting down the THC level and building up the CBD level — in other words, having a kind of a hybrid product — has less potential for illness.
Senator Raine: Actually, I guess one of the exciting things about the coming legalization of marijuana is the fact that there will be more research, and doctors will eventually be comfortable in prescribing the different kinds.
The Chair: We have indication from Mr. Page that he wanted to — if that’s okay with the senator?
Senator Raine: I would like to, then I have one more question for both of you as well.
Mr. Page: I’ll respond in terms of percentages. You asked where THC levels are in the current medical system. My lab does a lot of that kind of testing.
It would range from about 10 per cent to 26 or 27 per cent with really the average for THC strains around 17.5 per cent. That’s been consistent since 2015.
As Dr. Small indicated, there are more and more CBD products and products that contain both. CBD is typically topping out around 18 per cent in a pure CBD strain. There are things like 7 and 7 and 6 and 4 and those kinds of mixes between THC and CBD.
Senator Raine: There’s a lot of concern out there about people smoking dried cannabis or dried marijuana and the harms that can do to your lungs. I always think that people who move, once it’s legal and once it’s produced and sold in other forms, that a year from now we’re going to be looking at legalizing all different kinds of types of forms that are maybe not as harmful to your health.
I’m just wondering. I have a concern with it being grown and then you get into the production of oils and things like that, which is at this point quite problematic.
Would you have any thought on where do you think it’s going to go? I don’t know who I would ask. Maybe Mr. Page and Dr. Small.
Mr. Page: Where is it going? Yes, I think what we’re going to see is, over time, a reduction in smoking and vaporizing, so inhalation as a route of consumption and the emergence of ingestion via beverages or edible-type products where people are not smoking. Bill C-45, I think, contemplates a one-year period before the rollout of those non-smoked products. I think this is a good step forward in terms of public health, not to have the reliance on inhalation.
Ingestible oils are now available as part of the medical system. I assume we’ll see those being part of the recreational system immediately, but they are not the sort of beverages and things that you see in Colorado and other places.
Mr. Small: There is a lot of current interest in the role of these volatile compounds that we referred to earlier as terpenes. That’s really what gives the smell to cannabis. The cannabinoids really don’t have an odour.
Commercial strains today, yes, they are differentiated on percentages of THC and CBD, but often it’s the terpenes that qualify a given strain as different and give it a certain image. The role of the terpenes medically is currently, I would say, an exciting area of research with potential for medical applications. It’s not my area of specialization.
Currently in Canada compounding of cannabinoids and other medicinal ingredients, to my understanding, is not allowed, but one day it may — this will have to be demonstrated by research — opening up an exciting new vista for applications.
On the other hand, I recall reading a notice recently about terpenes also having possible harmful effects. One has to be careful here that terpenes, these basically odour and taste components that differentiate strains — really, it’s the only basis of the more than a thousand strains that are being marketed one way or another around the world; really it’s the terpenes that are the critical ingredients. Whether they are harmful or beneficial, or harmful under some circumstances and beneficial under other circumstances, awaits research, but it is an interesting area.
Senator Omidvar: Thank you all for being here. My first two questions are for the real estate association. If I have time, I’d like to move on to the representatives of the police forces.
Thank you, Mr. Bourque. You note in your brief that you speak for homebuyers, property owners, their tenants and customers. In a sense, you’re speaking for all Canadians because we’re all homebuyers, property owners or tenants somewhere.
You’ve talked a number of times about the mythology around cannabis. I’d like to put some evidence in front of you. The Task Force on Legalization and Regulation of Cannabis got 30,000 submissions; 92 per cent responded that they were in favour of personal cultivation. Just recently, the national cannabis survey demonstrated that only 9 per cent of Canadians either grow it or get someone to grow it for them, and this is both recreational and medicinal.
I think we’ve heard the discussion around the difference between four plants and a grow op. Four plants do not a grow op make. I think we can all agree on that. We’re not looking at a “Breaking Bad” kind of scenario.
I’d like you to consider your comments again within the limitation of four plants or less in a home.
Mr. Bourque: Thank you. I think the four plants itself is part of the mythology. The fact is that there is no size limit to that plant, and there is no limit to how many times I can grow that quickly. If I have nefarious goals in mind, then I will use whatever lighting, fertilizer, technology is available to grow those plants as quickly as possible so that I can grow as much as possible, and that will be legal. There’s no regulation currently around where I would grow that, what kind of ventilation.
If I take Health Canada’s current regulations for medical growing — and we have copies of this that we can circulate in both languages, Mr. Chair. These are the regulations. This is what you have to fill out in order to grow medical marijuana.
So what we’re suggesting is, listen, I completely understand the politics of people wanting to grow, but we’re unleashing something without any regulation. What we’re suggesting is that regulation would help separate the mythology of the four plants from what would be something that is safe and more benign.
Senator Omidvar: Thank you. That was very helpful. So you do support the development of regulations that are national or provincial, in this matter, to —
Mr. Bourque: In my remarks I gave a specific amendment that senators can consider which would essentially require provincial regulation before this part of the act is enacted. I think once those regulations are in place then perhaps we could do this more safely.
Coming back to the police, one of the things they said they learned from Colorado is to proceed slowly. One of the lessons from Colorado is that they had a higher number of plants initially and then they reduced it. So why would we go through all this and make the same mistakes that they’ve already made? Let’s just put some regulation in place first and then proceed accordingly. We’re already going to legalize marijuana and, therefore, make marijuana available all across Canada, and this is a very big-scale experiment.
On the plus side, legalization has the opportunity to remove organized crime and provide education and medical research, but it can also increase the grey market, increase access to kids, destroy property and have negative health impacts on vulnerable populations. I think we could mitigate all those things if we regulated before we allowed people to grow at home.
Mr. Serr: We want to reiterate what Mr. Bourque is saying. It has been our experience over the years that people are continuously overproducing with medical grows. Again, the Canadian Association of Chiefs of Police is not saying never. We’re saying allow the regulations, allow the legalization to unfold, allow us to better understand how the impacts will affect public safety, and then we can take an evidence-based approach on what we want to do next.
Again, I think four plants is very subjective. We are seeing very large plants that are being produced and that are typically producing much more than the average heavy user would consume on a regular basis. There will be overproduction, that is a fact, and I think the fact is what will happen with that overproduction is critical. As law enforcement, we want to ensure that we’re not seeing that overproduction.
Senator Bernard: I have a question that I want to ask the police officers, and it’s one that I’ve been thinking about for some time. We’ve heard many of the witnesses that have come before us use the term “black market,” and I believe that term sends a subliminal message which may contribute to unconscious bias in the criminalization of cannabis.
I’d like to you tell us, please, what you mean by the term “black market.”
Mr. Spearn: When we speak of the black market, what we’re speaking about is cannabis that is produced outside of a legal regime. It’s sold illegally. Specifically, right now, if you want to buy your medical cannabis, there’s a way to do it. Vancouver has more than 100 stores operating right now that are being supplied by the black market — by overproduction in the medical marijuana scheme — because these stores are not getting their products from producers that are licensed under Health Canada.
So when we speak about the black market, we’re talking about producers who are producing cannabis outside of any legal regime.
Mr. Serr: Our experience from Washington State and Colorado is that approximately 30 per cent of the product being purchased in those states is black market. Certainly, that is a priority for the Canadian Association of Chiefs of Police, and one of the foundations of this legislation is to disrupt and, hopefully, down the road reduce the black market supply. That is a priority for us. Any ability we have to limit grows outside of the licensed producers will certainly assist us in managing the black market.
Senator Bernard: Should we be using the term black market, or should we be using the term “illegal or illicit market”? Is there an unconscious bias that seeps into the use of the term “black” — and I put that in quotation marks — market?
Mr. Serr: You’re correct, senator, that it is an illegal market. Anybody that purchases outside of the legal regime is purchasing illegal cannabis. I know the terminology varies. In policing, we typically have used “black market” and, in some cases, “grey market” depending on where it’s purchased, but for anyone purchasing outside of that regime, it’s an illegal market.
Senator Bernard: I don’t think my point is being understood.
The Chair: I think it was at the last part, perhaps.
Senator Bernard: It’s not just the police, of course, that are using the term. Other people have used the term even here today. It’s been used consistently.
For the record, I think we should really look at the use of that term and how that term may be feeding into and may have already fed into the criminalization of black bodies.
Senator Lankin: My first question is to Mr. Bourque. Let me say that I understand the concern of someone who owns a house, condo or apartment and rents it out. That is your property and you should have some say about what goes on and what could potentially be damaging, although I completely agree with the comments that have been made about there being many things that can be abused within a home that would create similar conditions.
One of the things we know is that whenever there is a law, there are people who will break the law. I don’t know that we legislate for the extreme; we legislate for the common person.
Having said that, I’m very empathetic where it is a rental situation and where it’s a homeowner situation. Maybe we need to look at regulations about what’s included and what you must disclose. If you have a car crash and you sell your car, you’ve got to disclose it; if you have asbestos, you have to disclose it. Perhaps there’s something there that we could look at.
Similarly, I rent a condo in Ottawa. In the contract I signed, there could be no smoking, at all, in the building or on the balcony. Other people I know live in places where cats and dogs aren’t allowed.
Is that a matter of regulation that provides for that, or is that a matter of the contract between the homeowner or unit owner and the renter?
Mr. Bourque: Well, one thing I can say for sure is that, going forward, you’ll see that clause in any sale agreement because the purchaser, who’s going to be protected by a realtor, is going to have a clause that says the seller certifies that this home was not used as a growing operation.
One of the problems that you could run into with a legal limit that is this large — four plants cultivated many times in a year — is that you could have damage anyway, but what’s the person’s requirement to disclose if it’s not really an illegal grow op or not even classified as a grow op? So we do get into a grey area.
Senator Lankin: Can I ask you to think that through just a little bit? It’s legal for me to have a dog, unless, in my province, it’s a pit bull. We don’t step in to regulate everything, but we create conditions, and contracts are one of the ways we regulate our relationships with each other.
I’m actually really empathetic. Your amendment is an interesting idea and I’m going to give some consideration to it, but I’m wondering if it is necessary because anything above four plants is illegal, and there are 40,000 grow ops in B.C., which are not four plants. There’s a lot of this going on now and it is illegal, and there should be ways in which we have protection against that for homeowners or unit owners renting or for purchasers buying a home in terms of what’s gone on there.
Can that not be done through disclosure and contract provisions in your rental or lease agreements? Does it have to be done by the government stepping in?
Mr. Bourque: One would hope that it could be done through a contract, but what I was painting was a scenario where the person who owned the home was growing four plants legally. Right now there is no regulation, so all we know is it’s four plants. It doesn’t limit the size and it doesn’t limit the number of times that can you grow that, harvest it and start growing more.
So if you do that to the maximum of what’s possible and you do it in the wrong way in a small space that’s not properly ventilated, then you’re not doing anything illegal, but you could be damaging the home. Therefore, you could sign a contract that says I did not operate a grow op, but you might still be damaging the home. Then you’re putting the onus on the home inspector. Home inspectors are trained to look at these things.
But we’re introducing risk, and, I would add, at the same time that the government seems very concerned about the amount of debt people are taking on to purchase their homes. Yet, at the same time, we’re introducing something that would potentially damage a home.
All kinds of new regulations are making it harder for, in particular, first-time homebuyers to access the market, yet we’re introducing an unregulated activity which could potentially damage the home.
Now, when it comes to the renter, I think, again, you can have a contract, but it does open things up for legal challenges if you’re a landlord and the tenant makes the case, “I’m doing something that’s legal; why should I not be allowed to do it?”
Senator Lankin: Having a dog?
Mr. Bourque: Having a dog is maybe a little less dangerous, but it’s the same kind of thing.
Senator Lankin: Apparently before they banned pit bulls it wasn’t.
Senator Gold: Welcome. I do apologize for having arrived late, so if the question has been asked, I won’t be offended if you say “asked and answered.”
First, with regard to health concerns about home cultivation, I’d like to ask this of Dr. Page or Dr. Small.
Is there a health risk for, say, a child consuming the buds or flowers of a plant at home? Could that child overdose or be harmed by eating parts of the raw plant?
Mr. Page: I raised this in my opening remarks, but I can go over it again. It’s a chemistry issue where the plant is actually making an inactive precursor of THC. It’s making THC acid, which doesn’t bind cannabinoid receptors and doesn’t have the same ability to make you high or intoxicated. You need to smoke that plant or cook it or heat it in some way to convert THC acid to THC.
A child nibbling on a cannabis flower will not get intoxicated from that ingestion. And as I also mentioned, they’re quite unpalatable, and it doesn’t seem like that be very likely.
Senator Gold: With regard to home cultivation, perhaps I can ask this generally. We’re a big country with sparse populations. If you live in the North, it’s very expensive to buy anything. We heard testimony from Senator Patterson before the Aboriginal Peoples Committee that up in Nunavut, he’s finding people paying over $50, sometimes $100 per gram, whereas we expect the street price in Ottawa or elsewhere legally to be $10 or less per gram.
Do you see home cultivation as a remedy for people in rural and remote areas to have access to reasonably affordable, regulated cannabis?
Mr. Page: Yes, I think that’s a worthwhile sort of solution. One of the points raised earlier here was what kind of solution is home cultivation. There’s no problem it’s solving if cannabis is widely available in retail stores. But in rural areas or northern communities where that’s not the case, four plants in a well-done, small cultivation facility in someone’s home could be a solution to high costs and lack of distribution, yes.
Mr. Bourque: I’ll just add quickly that I think it’s another argument for having regulation before you make this legal, because there may well be instances where, as a priority, you would want certain people because of access problems. I take the point that it’s more expensive to ship things to the North. But it’s also true that governments are going to supply these markets and they’re going to do that through Canada Post or some other way. There may be ways that they can do that affordably. But it speaks to the need for rules.
The Chair: Dr. Small?
Mr. Small: Dr. Page has a comment first.
Mr. Page: I just wanted to make the comment that we’re not talking about an absence, a vacuum of regulations around home cultivation. The federal act provides the four-plant cultivation, but the provinces are already enacting their own legislation. Quebec has actually said no home cultivation, full stop. Alberta has said cultivation only inside the home, no outdoor cultivation. B.C. just this past week put out legislation — it’s not passed yet, but it would have significant fines for backyard plants that are visible from the street or from public areas. So it’s not like we’re talking about just a free-for-all in this case.
Mr. Small: In some northern communities, the very long light regime in the summer could be an advantage to growing certain strains. On the other hand, for the rest of the year, your heating costs would probably be prohibitive.
The Chair: Thank you very much. Let’s go to round two now. We have 25 minutes. I’ve got eight people on here. There’s no way five minutes each will work, so I can either do five minutes and see where it runs out or I could do three or four minutes.
You’d rather the smaller and try to get everybody in? We’ll try that.
Senator Seidman: I’ll try to be fast. I’m going to address my question to Constable Serr. It’s about the personal possession issue. Actually, I think Deputy Chief Constable Serr and also Inspector Spearn both discussed this. There’s no limit on personal possession at home.
I’d like you to speak to that and give us a sense of what the consequences would be for law enforcement, and if there were a limit, what the maximum should be and why.
Mr. Serr: Thank you, senator. I’m really glad you brought up this question because it is very important to us.
Right now, without any limits, somebody could hypothetically have 10, 15 or 20 kilograms of product in their residence. Without us being able to prove knowledge that it was for distribution or having any evidence to that effect, we’re really challenged because they are allowed to have as much cannabis as they would like to have in that residence.
We often find that private dwellings are utilized as a spot to transport illicit cannabis to other locations. So we do have a concern with that.
There’s also a concern with what constitutes a dwelling. As another example, a person in a motor home driving across the country with a very large volume of cannabis — where does that fall in? That could be, again, for illicit purposes and us to prove.
To your point about what could be a recommended level, one of the bases we’ve used, if four plants were still allowed, which we’re not in favour of, but if that were the case, on the high side that could produce 48 ounces per year — using that as a baseline as to perhaps what should be allowed.
We are mindful that, like with alcohol, people will have more than what they need. But like I said, a heavy user will typically use approximately 11 grams a week. So let’s go on the high side and say 50 grams per month to push it. If you have four adults, 200 grams of cannabis in a residence is a lot of cannabis, especially since there’s a shelf life to cannabis if not stored properly.
It’s very important for us for law enforcement to have limitations on what would be allowed in a private residence.
Mr. Spearn: I’ll just echo what’s already been said. Rather than having things open-ended with no limit, I think a reasonable amount that somebody could possess in their home would be something we would ask for, and it would solve a lot of issues for us in that we would be able to determine much more easily what is illicit and what is legal.
Mr. Serr: Just to add, very quickly, diversion is one of our priorities, and we don’t want to see the product diverted. As we said, youth have typically had it diverted to them through these types of means of production, so to try to give us more tools to address that.
Senator Petitclerc: I have a short question for Mr. Page. I was interested when you talked about and described the risk to children or the non-risk, really, of ingesting and then compared it with other elements in the house that would be riskier.
I want to hear from you, with regard to Bill C-45, if you feel that the bill the way it is designed now is sufficient in terms of safety and home production and safety for children, or do you feel we need to add protection in terms of security?
Mr. Page: I think it is sufficient. However, we see this with Health Canada now on education programs around Tide Pods or something toddlers are chewing on or teenagers on YouTube are talking about. I think it’s sufficient, overlaid with a level of education that says, “Make sure, especially with dried cannabis that probably would be purchased from a store and not cultivated, you store it appropriately,” like we would see with alcohol or prescription drugs.
Senator Petitclerc: Mr. Bourque?
Mr. Bourque: I just wanted to mention, because I did reference, in my remarks, the impact on children, that I really wasn’t speaking about small children eating plants. I was referring to the smoke and air contaminants from fungi and mould that could occur, in particular where there’s a shared ventilation system in a building.
Senator Petitclerc: Thank you.
Senator Munson: I have two brief questions, first for the realtors’ association, Mr. Bourque. Just for the record, can you tell us what other groups you interact with and how they feel about it? You alluded to some names, but, just for the record, we need to know that.
I’ll pose this other question so that the police can think about it. When it comes to strongly advocating against in-home production and in-home possession aspects of the legislation, you say that, given the issues, you recommend that a limitation on indoor possession be imposed. How do you police that?
Mr. Bourque: I’d be happy to table this list. The ones that are close to us include the Canadian Association of Home and Property Inspectors, the Canadian Federation of Apartment Associations, the Appraisal Institute of Canada. We’ve talked to all of the home folks, and they all have concerns. But it ranges. The Canadian Medical Association, the Canadian Paediatric Society. Senator Lankin, I’m happy to report that the Canadian Veterinary Medical Association also has concerns on behalf of animals.
Mr. Serr: How this would probably come to our knowledge would be in one of a couple of ways. One, we’re there for another call, and then our members are able to identify or see a large volume of cannabis that is over and above what they are entitled to have. Another would be through obtaining some sort of information that somebody is storing large volumes of cannabis at a private residence, in which case we would then be looking to initiate an investigation.
So, really, those would probably be the two most common ways in which it would come to our attention that someone has in excess of what they’re entitled to for cannabis.
Senator Munson: And the limitation would be what? You recommend a limitation on possession. What is the limit? Do you have a number?
Mr. Serr: We have not provided a number purposely because there are a lot of variables. As we said, if indoor cultivation is permitted, typically, that would be approximately 12 ounces every three months. There is sort of a foundation that the Senate could look at.
If plants are not allowed, like I said, a heavy consumer of cannabis would be in that range of 11 grams per week. Using an average, let’s even go to 50 grams for one adult user a month. Use that as a foundation for a house that has three or four adults in it. We understand that there has to be a little bit of room in there. We get the fact that there could be a party or something. We certainly don’t want to be policing or having to oversee small amounts that someone is over, but to find a reasonable amount that would not be consistent with somebody who is looking to divert a product into the illicit market.
Senator Munson: Thank you.
Senator Mégie: My question is for the Canadian Association of Chiefs of Police representatives. You stated that certain medical marijuana users had a tendency to overproduce. However, without a complainant, there is no complaint. How do you know you should investigate at such and such an address in order to detect offences?
Mr. Spearn: I guess a lot of times when we attend these residences and find marijuana being produced, the first thing we need to do is to find out whether this is being produced under the medical system. So that’s how we usually run into these situations. We come into a residence. We find a marijuana grow op, and we would call Health Canada. They would tell us right away whether or not that is a legal medical grow op.
Senator Mégie: But how do you know where to go to begin with? You say that you enter the residence, you see that there are four plants and you contact Health Canada. However, how did you know which home to go to in the first place? Who tells you?
Mr. Serr: Again, there are multiple ways it would come to our attention that there may be an illegal grow operation. One is through neighbours and complaints that we’ve received and then through police officers doing additional investigation. They may obtain the facts and evidence that indicate that there is overproduction.
Also, we do receive it, on many occasions, through information we have been provided by persons who have seen overproduction. Also through doing other investigations where we identify someone in possession of illicit cannabis on the road and we determine where that source of the cannabis has come from.
So there are a variety of ways that this will come to our attention. As I said before, in our capacity as law enforcement to aggressively and proactively enforce overproduction, we’re challenged. As you know, we’re addressing the opioid crisis. We’re trying to prepare for the legalization of cannabis, and that’s where one of our challenges is — how much and where we prioritize illicit or overproduction. That’s why we’re really asking for a slower approach to allow us to better address the initial aspects of legalization and then make an informed and educated decision moving forward.
Senator Poirier: I have two questions, and they are for the police association or the Vancouver Police Department. Either one can respond.
We’ve heard, over the last few weeks, from different groups, specifically even the Association of Municipalities, for smaller communities. They’re wondering about the extra costs that are going to be involved for the firemen, if they need to be out more, because they pay a lot of them per call that the fireman has to go to. They are volunteers. Some of them are concerned about the extra cost of policing services to their municipalities or their areas due to the extra workload that could be needed.
Some of the issues we’re hearing of as being a concern will be definitely. Are we ready? Do we have the manpower to monitor driving under the influence of cannabis? Then again, we’ve talked about the home plants to the illegal market, all of these things.
I’m just wondering, other than the house plants, the illegal market and driving under the influence, when it comes to the workload added onto the police force, are there other issues out there that are main concerns to the police that we should add to that that could bring the workload up quite a bit and bring extra costs if they need more manpower out there?
Second, you mentioned just a few minutes ago, in answering one of my colleagues, the words “shelf life.” Not knowing much about marijuana when it comes to smoking — I’ve never smoked it — the shelf life, what are you talking about exactly? Does it expire? Is there a health risk once it expires, or is it just that it’s no longer good to smoke? Tell us a little bit about the shelf life and what you mean by that.
Mr. Serr: I’ll address your first question. We have seen, in some estimates, an approximately 2 per cent increase to police services, in the onset, to manage the legalization of cannabis. You identified some of the key factors for us. The in-home grows, overproduction and, certainly, drug-impaired driving are significant. One of the things from our lessons learned from Colorado and Washington State was that there was also a significant increase in those nuisance types of calls, like the neighbour calling about someone continuously smoking in their backyard or people smoking in an area in which it is believed to be prohibited, i.e., near kids and school grounds. We have seen that police services in other jurisdictions have had an increase in calls for service for a lot of those more nuisance-type calls in addition to some of the larger ones.
Certainly, for us at the Canadian Association of Chiefs of Police, drug-impaired driving is a high priority because it adversely affects public safety. Other priorities of ours are addressing the illegal market — I’ll use that term — and ensuring that we address youth access to cannabis. Those will be our priorities as we move forward.
With regard to your second question about a shelf life, again, there are a lot of variables. It is a plant material. It is degradable. Certainly, people who store it in a way that keeps it cool and hydrated can actually prolong its use, but for somebody who’s leaving a dried plant or the dried product in their kitchen, it would not last a long time because it does start to degrade. It’s variable depending on heat and the way it’s stored.
Senator Bernard: This question is for Mr. Bourque. In one of your remarks you spoke about marginalized people being impacted by home growing. I’m wondering if you could expand on that a bit more. Are you saying that home growing would provide access to people who would normally not have access? I’m just seeking some clarification on that, please.
Mr. Bourque: One thing I spoke to was vulnerable populations that would be exposed to smoke and the health effects from fungi and moulds where growing is occurring in a shared space, such as a building that has a shared ventilation system. That was one.
The other is that landlords would be expected to have increased costs from remediation. This would have to be passed on to tenants, and there are more renters among lower-income Canadians than buyers of homes, so they’re disproportionately affected.
Senator Bernard: And how might that be for people living in social housing? Has there been any discussion in that social housing area?
Mr. Bourque: That’s a very good question. If you read the government’s housing strategy, it really is a social housing strategy. They identify, in considerable detail, the amount of work that needs to be done to bring social housing up to speed in Canada. They’ve identified $4 billion, which they acknowledge will not solve the problem and will only begin to address the significant housing needs of Canadians, so there’s no doubt that that situation will not be made better.
Senator Lankin: My question is to Inspector Spearn. Inspector, I have three minutes and three questions. I’m going to put them all out there and try to leave time for you to respond.
The first is with respect to your comments about an increase in the number of oil extraction operations. I agree they’re highly dangerous. Given the size of the illicit market right now, why is there an increase right now? And if people buy the product legally, are they still not able to use a dried product or a bud to turn it into oil, and might that not happen no matter what? I don’t understand the relationship to home grow only.
The second is the issue of the age of the provider. Someone who provides an amount of marijuana to a teenager who is restricted from having it faces an offence charge, although below a certain amount it’s ticketable as opposed to criminal, like the elder brother who buys a small case of beer to give to a minor. In this case, a person could be facing 14 years. In that kind of a family or close situation, is that reasonable, or should we be looking at some provision for that to be a ticketable offence, as well?
The Chair: Leave time for the answers too.
Senator Lankin: I realize that. I’ll leave it at that. Thank you.
Mr. Spearn: So let’s talk about the oil extraction first. You’re not supposed to be using solvents to extract oils from these plants right now. What we’re saying is that without reasonable possession limits in the home, it’s a big money-maker for people to sell these oils on the illicit market. That’s something we’re already seeing in Vancouver. As recently as a week ago we ran into one who was making a lot of oil with a lot of solvents inside an apartment. Yes, they’re going to get it anyway if they have their 30 grams, but chances are it’s going to be on a much smaller scale as opposed to kilos of marijuana if you’re allowed to possess without any limit inside your house.
As far as an older brother giving marijuana to a sibling and facing a stiff penalty, that’s a tough question.
Mr. Serr: Our courts would have a balanced approach in looking at all the circumstances and making an informed decision on how to manage that. We do think it’s very important at the onset that we highlight how important it is that people are not diverting cannabis to youth. We’ve asked for packaging and labels to identify the penalties for diverting cannabis to youth, and as I said earlier, we know that the way approximately 65 per cent of youth are accessing cannabis is through a friend or family member, so we need to ensure this does not become a common practice, and we’d like to message that out as much as possible.
The Chair: I’d like to get a question in here at the end, as we wrap up.
I want to get some sense of how widespread the abuse and misuse of this four-plant proposition could be. I can imagine that back in the 1920s and 1930s, when they were talking about lifting the prohibition on alcohol, had somebody suggested that we’ll allow people to make alcohol in their homes and have stills and make wine, people would probably have said a lot of similar things to what we’ve heard today.
But I don’t sense it’s brought about a catastrophe. Yes, there may have been some problems in the early stages, but I don’t hear very much nowadays that it’s a big problem in terms of children in the home or what it does to other tenants or nearby neighbours. I don’t get a sense that this has become an enormous problem by allowing people to make wine or make alcohol in their homes.
How widespread is it? I don’t sense it’s that widespread. I sense most people still go to the store or get it in the traditional and legal way, or the way we’ve come to consider traditional. How widespread is this problem likely to be with this four-plant allowance?
Mr. Serr: Having had the unfortunate experience of drinking some of these home-made wines, it is not a product that is readily sold. There is not a market for homemade wines or beer, quite frankly. But the illicit marijuana market is roughly $7 billion a year, with over 300 organized crime groups involved in it, so there is a massive illicit market right now for cannabis.
What we’re trying to do, and what this bill was designed to accomplish, is to bring this under a regulated scheme. We totally support that, but we need to take that slow approach in order to try to divert organized crime. Like I said, Colorado and Washington State were still seeing 30 per cent of the market share by organized crime.
Producing cannabis in the homegrown amounts, at 48 ounces, is a very large amount and more than the average person will consume in a year, so there’s a lot of leftover product available for diversion.
We have a strong illegal market now, and we’re trying to change the culture of how people are purchasing their cannabis. We want to push them into legal regimes, so that’s why we’re advocating no personal grows at this point. But we suggest revisiting it once we get a handle on what we’re addressing and dealing with given the legal mechanisms being put in place.
The Chair: I suppose if everybody drank everything in their alcohol cabinet, they would also be in terrible shape.
Mr. Page, do you have any comment on that? How widespread is this going to be, or will most people still buy it through legal means?
Mr. Page: I think it’s going to be relatively small, in the sense that with alcohol — I can’t remember the stat — 75 per cent of Canadians consume it frequently or infrequently. The number of cannabis users is significantly lower, maybe 20 or 25 per cent; I was just trying to look it up on my phone.
We heard before that 16 kilos of tobacco production for personal use is allowed, and I’ve never met anyone who has grown tobacco for their own use. I think we will see something similar in that most people will elect, because of the quality, convenience and price of retail cannabis, whether it’s by mail order or in a store, depending on the province, to buy it there, and to do it themselves will be a minority of people, as Dr. Small said, who are horticulturally inclined. It will be a hobby, but it’s going to be small.
The Chair: We’ve come to the end of the meeting. I appreciate all of your contributions. It has been a lively discussion over two hours, but we managed to get everybody in for a question and a lot of people got a second-round question as well. Thank you very much.
Honourable senators, we’re focusing on home cultivation at today’s meeting. This is the second panel of the day. We have an hour and a half for this panel. I’m pleased to welcome, first of all, here at the table, Solomon Friedman, Criminal Defence Lawyer, Edelson & Friedman LLP; and also Sean Robichaud, Criminal Defence Lawyer, Robichaud’s Barristers & Solicitors. On the video conference from out West we have John Conroy, Lawyer; and Neil Boyd, Professor, Department of Criminology, Simon Fraser University.
Welcome to all four of you. I’ll go in the order that I have you on my schedule and ask that you give opening comments of up to seven minutes, please, starting with Solomon Friedman.
Solomon Friedman, Criminal Defence Lawyer, Edelson & Friedman LLP, as an individual: Mr. Chair, deputy chairs, honourable senators, thank you for inviting me to address you today.
Bill C-45 purports to address important public health and criminal justice objectives, namely, to end the misguided war on cannabis and its ancillary effects and to legalize and regulate access to cannabis. Unfortunately, the bill falls well short of that mark in a few important respects.
Much has been said before this and other committees with respect to the failings of Bill C-45 and the cannabis act that it creates. For my part, there are three primary areas of concern that I wish to raise this afternoon.
First, the bill will be difficult to implement and apply in practice. Too much is left to the discretion of police. Apart from the discretionary areas, many of the provisions of the new cannabis act are confusing and assume knowledge and expertise on the part of front-line police officers that are simply not there.
There are numerous examples of this throughout the bill. Police officers are expected to differentiate between flowering and non-flowering and budding and non-budding plants. It appears impossible at present that police will possess the requisite level of horticultural knowledge to objectively and fairly enforce the law.
Similarly, police officers must distinguish between permissible and prohibited quantities of cannabis. Is it 30 grams or 31 grams? For a young person, is it 5 grams or 6 grams? And even more problematic, an officer must determine whether or not the cannabis in question is legal or illicit cannabis and whether or not the individual in possession of the cannabis knows that it is illicit. These determinations will no doubt lead to a host of unintended and unjust consequences.
Imagine this occurring in the course of a simple traffic stop or a casual interaction on the sidewalk. Can individuals expect to be detained while an officer determines whether or not an offence has been committed? If so, for how long? Will they be provided with their right to counsel as required by the Charter?
In addition, recall that the act authorizes the issuance of search warrants and, in some circumstances, warrantless searches with respect to alleged violations of the proposed cannabis act. The courts can expect applications to be made by officers who are not themselves sure that offences have truly been committed.
We can further expect disproportionate effects on disadvantaged and racialized communities, as cannabis act searches and seizures are authorized and conducted where no warrant would otherwise have issued.
Second, while the bill would allow for certain offences to be prosecuted by way of ticket as opposed to formal proceedings and for the records of such convictions to be kept separate from other judicial records, this option is only available for those with the means to pay their fine within the set time period.
The act provides that this record suspension type of procedure can only be used where “the accused pays the amount within the period set out in the ticket.” The law, as presently framed, does not provide for any mechanism to allow an individual who is unable to pay the fine to have his or her record of a proposed cannabis act conviction to also be kept separate from other judicial records.
In other words, the poor need not apply. This is not only unconscionable, it is also likely unconstitutional. As a result, the indigent and the unfortunate will be saddled with permanent records simply because of their inability to pay their fines. Surely this cannot be Parliament’s intention.
I recommend that the section which currently prevents imprisonment for non-payment be amended to allow for the truly impecunious to have their proposed cannabis act records also held separately from other judicial records, notwithstanding their failure to pay.
Third, young persons who contravene the proposed cannabis act are treated more harshly than their adult counterparts. This disparity stands in stark contrast with the principles and purpose of the youth criminal justice regime, namely, rehabilitation, reintegration and fair and proportionate accountability for young persons.
Notwithstanding those principles, which are enshrined in the Youth Criminal Justice Act, a key benefit that this bill provides to adult offenders is unavailable to similarly situated young people. I refer to the record-keeping provisions of this bill. As of now, offences with respect to youths cannot be initiated by way of ticket. In other words, a youth could end up with a permanent criminal record for an offence that, if committed by an adult, would result in a separate, inaccessible judicial record. If, for example, the youth were to commit another offence during the record access period, the youth cannabis act record would be transformed into a permanent adult criminal record. This should be amended prior to the bill becoming law.
I close with this final thought: The criminal law is a blunt instrument. It is ill suited as a tool of social policy and reform. If the purpose of this law is, as the government has repeatedly said, to end the cannabis black market and the ancillary societal and legal costs that accompany it, Bill C-45 will not accomplish that.
Those who would engage in the illicit trade in cannabis have not, to this point, been deterred by the host of offences and penalties set out in the Controlled Drugs and Substances Act. It is folly to assume that the proposed cannabis act will be any different.
In fact, the tangled mess of regulation, discretion and confusion created by this bill may very well cause people to eschew the legal market and continue relying on illicit sources of supply, thereby defeating the very purpose of this legislation.
Thank you very much for your kind attention.
Sean Robichaud, Criminal Defence Lawyer, Robichaud’s Barristers & Solicitors, as an individual: Thank you, members of the Senate, for inviting me here today. I am very honoured to speak to you on this very important issue for all Canadians.
I’m a practising lawyer with accredited specialization in criminal justice from the Law Society of Ontario. I hold my law degree from Queen’s University and my LLM from Osgoode with a specialization in criminal law and procedure. I have practised exclusively in criminal law for nearly 15 years in a wide range of cases, many of which surround CDSA matters and more specifically possession, cultivation and distribution of these controlled substances.
I hope my experience and expertise will offer some insight into the practical concerns and serious reservations this legislation brings for many lawyers and legal organizations who have submissions before you and before the Parliament of Canada.
Despite the vast and profound effects this legislation may have upon the criminal justice system, in the interests of time I am focusing my contributions on three concerns: one, the over-breadth of certain definitions and criminalization of youth and its asymmetrical application for minor deviances, as well as for the same effect for all Canadians; two, the futility and risk of overly harsh punishments proportionate to the offences committed; three, the significant additional costs and pressure Bill C-45 will have upon an already strained judicial system.
Notwithstanding this focus, I ask the committee to appreciate that this is simply done out of brevity. Other issues that the Senate may find equally of importance will be the following: one, the potential for disproportionate enforcement of an unbalanced nature towards Black, Indigenous and other racialized Canadians; two, the lack of clear and mandatory control measures to secure marijuana in dwellings, particularly in the homes of young people, which may in turn make marijuana easily accessible; three, the collateral effects upon Canadian immigration and emigration, particularly as it relates to criminal matters. If these ancillary issues are of any interest to the committee, I am quite willing to discuss them.
Moving then to my three concerns, the first is the over-breadth of certain definitions and criminalization of youth for minor deviances. The deviances relating to possession, no matter how minor, are punishable by criminal prosecution, by either summary conviction or indictment, each carrying the potential for incarceration of six months and five years, respectively.
In cases of possession for the purpose of distribution, importing, cultivation and production, one may face either a summary conviction offence or an indictable offence, with a potential of up to 14 years.
I point this out to remind the committee that violating this act, even in a relatively small way, like an 18-year-old sharing a joint with a 17-year-old or growing an extra plant, is a very serious criminal matter, despite the characterization of Bill C-45 as having a decriminalization effect.
In almost all instances, with the exception of small amounts of marijuana that were in practice already, for all intents and purposes, not prosecuted, the sanctions are increasing from what they are presently under the CDSA.
As a comparison, offences presently aligned with five-year maximums include sexual offences, certain offences against children, firearms, domestic violence. When we move to the 14-year max, we are now aligned with far more serious crimes, such as terrorism offences, threats to commit a nuclear device attack on a UN premise, arson and very serious sexual offences against children. I’m fearful that most Canadians who hear this legislation as decriminalization are having a dangerousness misunderstanding of what this means and how closely they may be walking a tightrope between lawful use and very serious criminality.
I can’t get into all the definitions, but to use one in particular, the issue of distribution is a serious concern. With a very broad definition of “distribute,” there are many problems that arise and far too many to cover. Suffice it to say that the overly broad definition captures activity that Canadians will not reasonably expect.
“Distribute,” as you all know, includes administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly.
“Otherwise making available in any manner” is obviously very broad. While it clearly captures activity like sharing a joint, does it, for example, capture two parents who have marijuana in their dresser for their 17-year-old son to find? Does it include not properly securing the premises for the four plants? These are not far-fetched problems from a criminal defence lawyer’s point of view.
Given the harshness of penalties for youth distribution, which I will return to, what happens when a 16-year-old is caught at school with marijuana, selling it to friends, and says he stole it from his parents?
I believe that “making available” will become a live issue in courts and one that will be hard fought when these hypothetical parents are facing criminal offences carrying up to 14 years in prison.
I should add that this is aggravated further by the lack of guidelines, perhaps to come from the regulations, on secure cultivation and handling akin to what we see in firearms legislation.
The other aspect is as it relates to youth. As Mr. Friedman has pointed out, there are serious concerns, particularly as it relates to the constitutionality of how youth are treated. In no other aspect of the criminal justice system are youth treated asymmetrically as it relates to criminal offences.
Similarly, there is no evidence that this will have a deterrent effect upon youth. Indeed, youth possession is criminalized under the present regime, and despite marijuana being completely prohibited now, youth between the ages of 15 and 24, as you know, are among the highest users of cannabis in developed countries. If a policy of complete criminal prohibition of youth has failed, then clearly partial decriminalization will also fail.
I point, too, to the futility and risk of overly harsh punishments for minor deviances of the legislation. My view, based upon first-hand knowledge within the justice system, is that harsh sentences do very little to deter crime. It’s a view widely held among criminal law scholars and backed strongly by empirical data that strong sentences have very little deterrent effect. Some studies have come to find that 2 to 5 per cent of people are responsible for 50 per cent of crimes.
Due to the profitability of illicit drugs for prohibited markets, as you’ve already heard today in other capacities, youth are likely to turn then to markets that are governed by organized crime, which will then expose youth to far greater risks than what would otherwise be in place. While a harsh sentence may have a deterrent effect upon a brother who wants to pass on a joint to a sibling, it will not have an effect upon organized crime, in my view. This is a serious concern because it then creates an entire market for people to go after use in a way that, otherwise, people wouldn’t be deterred.
Lastly, with respect to increased costs and strains on the judicial system, it’s my view that Bill C-45 will put great pressure on an already strained judicial system, notwithstanding the expressed intent of the legislation to the contrary. The costs I’m referring to are directly upon judicial resources and not upon police and enforcement, as you’ve already heard. The reason for this strain will include — there will be many reasons — the fact that resolution is not likely when a person feels they should not be criminalized for marijuana possession, and many will fight the charges out of principle.
Conditional sentences will not be made available for most offences. The line between law-abiding citizen and criminal is severely abrupt, as already alluded to, and it is hard for a person to reconcile that what they did is criminal and accept responsibility as such.
For anything proceeding by way of indictment and carrying a 14-year possible sentence, jury trials are available as a mode of election and one that I expect many will seek to pursue, even facing overwhelming evidence, in hopes of nullification.
Severe immigration consequences for non-citizens of Canada, severe immigration consequences for those travelling to the United States, all of these and many other reasons will give accused very strong incentives to fight charges, no matter how bad the evidence may be against them.
The Chair: Now to the two who are joining us by video conference. I’d ask them to make some opening remarks. I’ll start with John Conroy.
John Conroy, Lawyer, as an individual: Thank you, members of the Senate. I am billed as a lawyer, and I should perhaps just add that I, too, have been a criminal defence lawyer for 45 years, consistent with Bill C-45.
Of course, in 1982, I became a constitutional lawyer once we got the Charter, and, throughout that whole period of time, I’ve been in Abbotsford, which is the Kingston of the West, surrounded by federal prisons, and have spent a considerable amount of time dealing with people in prison on this and other issues.
I was called to the bar in 1972. That was the year of the cannabis report by the Le Dain commission, and I commend to you — especially those who say we’re doing all of this in a hurry — that you go back and have a look at that and see what was discussed at that time, as well as all of the other royal commissions that have occurred going back to 1893.
I was counsel in the Supreme Court of Canada on behalf of Mr. Caine in the R. v. Malmo-Levine; R. v. Caine challenged prohibition that was decided in 2003. I was also counsel for VANDU in the supervised injection case in the Supreme Court of Canada.
I was also counsel in Allard, the medical marijuana case that led to the finding of unconstitutionality of the Marihuana for Medical Purposes Regulations and that led to the current Access to Cannabis for Medical Purposes Regulations.
I didn’t realize that this panel was focused on home cultivation, so, instead of going into the detail of the two prior defence lawyers, whose submissions I would adopt, I’ll turn and focus a bit on that because there was extensive evidence in the Allard case on that very issue.
The police and fire chiefs and so on brought old evidence from the days when we had multiple grow ops in British Columbia in particular, and there were problems of fire, mould and public safety that arose in the illegal market.
Once the government allowed people to grow for themselves or have somebody grow for them, first under the Marihuana Medical Access Regulations, and then tried to take it away under the Marihuana for Medical Purposes Regulations, we had people then legally growing cannabis.
This is very important because, while there were all of these problems during the illicit days, you would be hard-pressed to find a building inspector, a zoning inspector or people who are in government now at the local level who would want to go back to those old days because we established quite clearly, and Justice Phelan found, as a matter of fact, that all of the problems with home growing you can ameliorate. You can take care of mould quite easily. We had experts testify, if you want to look at detailed evidence about mould, public safety. People have security cameras. They call the police if somebody tries to come. They give them the video, which they never did when they were also involved in the illegal market.
So the experience in terms of a transition from an illegal market or an illicit market or prohibition into a regulatory market occurred with the medical marijuana situation over the last 10 years and shows that legalization brings things up, shows what the problems are, enables people to take steps to ameliorate them and fix them. That is the most important thing that I think we have to realize.
The cannabis act basically has a little bit of legalization in the beginning, the four plants — thank goodness they got rid of the height restriction which would have been really complicated — so the four plants and the 30 grams. That’s the basic legalization with the provinces being allowed to do the distribution.
Then you’ve got a little bit of decriminalization that we used to talk about in the old days, and that’s the ticketing scheme. If you’re a bit over the limits in terms of the legalized part, you’re into the ticketing scheme, which is a civil type of a penalty.
Then the rest of the act, as has been well described by the previous two speakers, is continued criminal law. And it’s problematic. The Le Dain report recommended a maximum of five years 45 years ago for indictable offences, and the cannabis act proposes 14 years.
I can’t remember if the prior speakers mentioned this, but it was under the Conservative regime that the penalty for production was elevated from seven years to 14 years. A 14-year maximum is significant because back in 1972, Pierre Elliott Trudeau introduced absolutely unconditional discharges to ameliorate the criminal record for possession of cannabis so that the records would be wiped out. You can’t get an absolute or conditional discharge if there’s a 14-year maximum.
Similarly, many years later, the Canadian Sentencing Commission and others said we’re incarcerating too many people, we need to decarcerate the non-violent, and we created a sentencing option called the conditional sentence order. That, too, you can’t get if the offence carries a maximum of 14 years and up.
So if the parent growing the four plants wants to talk to their young person, the 12- to 17-year-old, about cannabis and have a discussion so they don’t go to the black market, they will be committing an offence theoretically subject to a 14-year maximum. They won’t be able to get a conditional sentence order. They will be facing potential imprisonment.
There are some really problematic things with that latter part of the bill. I won’t go into them in more detail because the prior two speakers did.
I incorporated NORML Canada back in 1977. I incorporated the BC Compassion Club Society in 1997. So I have been around people involved in cannabis and various aspects of the situation for a long period of time.
I should add that I was also part of the ad hoc committee that sent to you — hopefully you’ve received it today, if not before — a response to the SAM submissions and documents that your committee received. So you have that or should have that addressing the youth issues, the impaired driving issues, hospital visits, social justice charges and arrests, crime trends and the opiate issue in some detail in that document. I won’t repeat it here.
The most important thing is for people who still have fears and worries about different things to come, remember this is a beginning. It’s a start. Things can be changed over time. Most importantly, we’re bringing the whole issue above ground instead of continuing to force it underground, not getting the statistics, not being able to do as much research as in the past and bringing it up so that we can see exactly how it isn’t going to be a significant problem, just as all the prior royal commissions and the Le Dain commission reported many years ago. Thank you very much.
Neil Boyd, Professor, Department of Criminology, Simon Fraser University, as an individual: Thanks very much for the opportunity to speak. I’m very much in agreement with comments made by the previous three speakers. I’m going to speak perhaps a little more generally about where we are today.
First, I applaud the general approach taken by the federal government: legalization of cannabis and regulation in the interest of public health. This is an approach that will increase our knowledge of both the harms and the benefits of the use of cannabis, a knowledge that has been severely limited by almost 100 years of criminal prohibition.
Although the government has framed this issue as one that has the goals of restricting access for youth and dismantling the black market, it’s important to recognize that this is also a human rights issue. Those who use cannabis do not deserve to be labelled as criminals today or at any point in the past.
Marijuana was criminalized in 1923 with the simple declaration that there is a new drug in the schedule. There was no discussion or even knowledge of the drug at that time, and it is now clear that for most users in those circumstances, alcohol and tobacco are more toxic and more disabling with a much greater morbidity.
Put differently, our criminal law was created by an ideological line drawn between the so-called good drugs of the first world, alcohol, tobacco and pharmaceuticals, and the so-called bad drugs of the developing world, cannabis, coca and opiates. Public health was simply not a part of the legislative agenda.
I should add that the Narcotic Control Act passed in 1961 contained the most severe penalties for cannabis possession and distribution, after 50 years of virtually no charges in relation to that drug. But convictions began increasing. In 1966, more than 1,000 Canadians were convicted of simple cannabis possession, and most went to jail, some for two years or more. But by 1975 there were 40,000 convictions annually for possession alone, and jail was no longer a practical option. Getting tough on users had not worked.
The bill before you now, Bill C-45, is not without its flaws. Its approach to the distribution, and more pointedly the possession, of illicit cannabis is unduly punitive. I have difficulty in understanding the logic and practical application of proposed section 8 of the cannabis act, the creation of the criminal offence of possession of illicit cannabis.
With the growing of up to four plants permitted, how will a determination be made that a person is in possession of illicit cannabis? And more important, why would we want to treat this activity as a crime with the possibility of a maximum of five years’ imprisonment?
With respect to proposed section 9, I understand the desire to restrict trade to those who follow the rules and to ensure that the regulation of the product is in the interests of consumers and consumer safety. But the approach to cannabis throughout Bill C-45 is much harsher and more condemnatory than our approach to alcohol and tobacco. Given the relative risks to public health of each of these drugs, that does not make logical sense.
I suppose on reflection that these differences are best seen or understood as part of our cultural transition as we move from criminal prohibition to tolerance.
What I would ask of the Senate, notwithstanding the flaws of Bill C-45, is that they ensure that this legislation passes and receives Royal Assent. I recognize that some Conservative senators are seeking to advance an agenda of social conservatism without regard for the best available evidence. I urge that they reconsider the logic of their positions and consider endorsing tolerance as a principle of importance, as uncomfortable as that position might seem to them.
I want to conclude by reflecting on the past decade, given my experience with this issue, perhaps the past 40 years. In a recent research article, I and two of my graduate students wrote about a survey that we had conducted with 300 self-described cannabis users in Canada and a similar number in the U.K. Like other research to date, our survey revealed a striking consistency in the three most common reasons for use: pain relief, reduction in anxiety and stress, and improved sleep.
The respondents were mostly male, with an average age in their mid-thirties. The overwhelming majority had experience as recreational users but had transitioned to a conception of themselves as medical users. They talked about both the medical benefits and the pleasures that they derive from using cannabis.
We should not be afraid of acknowledging that cannabis can act as a commodity that both provides pleasure and functions as a salve, a remedy for life’s difficulties. As Randy Newman sang on his 1974 album Good Old Boys, “It takes a whole lot of medicine for me to pretend that I’m somebody else.”
Many of us know that red wine can deliver on that promise, and sometimes to our detriment, but given that context and the relative harms of each substance, there doesn’t appear to be much logic in regarding cannabis as a second-class alternative.
In the past decade we have seen substantial changes in relation to cannabis: legalization in a significant number of U.S. states; a very important increasing interest in regulation of THC and CBD levels; and improved understanding of the impacts of this drug, for both its benefits and its harms. These are very positive developments that we should continue to encourage. We have begun to recognize that cannabis, properly regulated, may be of benefit to our society as a mind-active alternative to more destructive drugs such as opiates or alcohol, or simply as a means to soften the rigours of our increasingly complex modern world.
The Chair: Thank you very much. At the beginning, I described this as a panel on home cultivation, and the last panel was certainly totally home cultivation. But this one is more of a crossover — as I should have described it — from home cultivation, which got some mention, to other legal issues, which got lots of mention. That opens up a wide range of other issues for us to consider, but all important issues relevant to this matter. I thank all four of you for your initial presentations.
Members of the committee, again, five minutes each. The shorter the preambles, the more questions you can get in. If we can keep the answers as short as possible, that will increase the number of questions and answers we can get in.
Senator Seidman: Thank you all very much for your presentations and helping us try to understand some of the complexities of this legislation.
Mr. Boyd, the Canadian Association of Chiefs of Police and others have pointed out that while personal possession limits are set at 30 grams, Bill C-45 places no limit on the amount of marijuana a person is allowed to possess inside his or her home.
Do you foresee an increase in criminal activity resulting from the combined effect of allowing home cultivation while not setting any limit on the amount of cannabis permitted for personal possession while at home?
Mr. Boyd: I don’t. I understand the argument that there will be people who will use that as a reason to essentially grow in their own homes. Much of this is going to depend on the ability to meet consumer demand. To the extent that a place like British Columbia, where I live, has taken a position that there will be a sufficient number of retail outlets that they will compete with the current illicit market in terms of price, I don’t think that should be an issue.
Again, it might be useful to contrast this with alcohol. It’s not a concern we would have, and it’s a more toxic drug. The question sort of presupposes the focus, understandably and logically, on what we have now, the illicit realm. What I’m suggesting is that we’re in a state of transition, and we don’t know precisely how that transition will take place, but there’s no reason to presume that this is going to be the kind of major issue that some have suggested.
Senator Seidman: Perhaps I might see if Mr. Friedman or Mr. Robichaud have a comment on that.
Mr. Friedman: My only comment on that is that the illicit market is driven by demand and profitability. I see that on the criminal defence side. The idea here is that as the demand is met in the legal market, then the profitability decreases. At that point it becomes completely irrelevant whether someone has 30 grams, 100 grams or a kilogram in their home. They’re not a target for criminal activity because cannabis is similarly available at a legal retail outlet. That requires, obviously, cooperation on the part of the provinces. It’s troubling to me that there seems to be uneven availability at the provincial level, but provided there is a consistent level of supply in the legal market, it makes little difference as to how much cannabis someone possesses inside their own home.
Mr. Robichaud: If I can build upon that, Senator Seidman. Thank you for the question.
What I’d say is that your question relates to whether or not there will be an increase in crime, and I see there are actually three parts to that question, in a sense, because the factual occurrence of crime is different from the enforcement of crime; and then the subset of that is what crime was it and what was the intentionality of the person?
First, how will the police know about this additional amount of marijuana? Second, is it a crime? If that person possessed, let’s say, 300 pounds of marijuana and they could make an assertion — I won’t say an argument — that it was for personal use, then we get into the third component, which is how do we go about proving that?
So statistically, if we could look at it in a vacuum, I don’t see it increasing crime, but I do see — and this is part of the strain I anticipate on the criminal justice system — that if and when enforcement measures are taken and search warrants are executed, I suspect police will act and charge under the “possession for the purpose” sections, based upon the circumstantial evidence that there was over a certain amount.
On the flip side, from a defence lawyer’s point of view, I have a strong argument to make that there’s no limit, so you can’t make that reasonable inference. Of course, I think what you’re alluding to is this: Does that provide better conditions for organized crime to act? And I would have to concede that it does.
Senator Seidman: Mr. Robichaud, in your presentation you talked about the cost to the judicial system.
Mr. Robichaud: Yes.
Senator Seidman: You said lengthier trials and fewer resolutions by way of guilty pleas. Could you explain that, please?
Mr. Robichaud: There’s a lot to be said about this, but I think one analogy we could draw is that if we look back 20 years or so on impaired driving, it never got the stigmatization that other criminal offences do. So people don’t see themselves as a criminal when they have two or three more drinks than they should. I see this even day to day. It’s hard for people to conceptualize that and equate themselves with a serious sex offender. That’s often the thing: I didn’t kill anyone, so what’s the problem?
I think what you will find is that as people are charged with these offences, they’re going to quickly conflate that to say, “Well, I only passed a joint to a 17-year-old.” Now, from a personal point of view, I don’t think that should be part of criminalization whatsoever. But by the definition, certainly that 18-year-old passing the 17-year-old the joint is very much a criminal offence, and a serious one at that. When you combine that with other crimes, serious criminality, in my view there’s no question that people will say, “Out of principle, for the sentence, all sorts of reasons, I am fighting this tooth and nail.”
I think one of the other problems you will find is stresses upon the judicial system because I suspect juries will be far more inclined to acquit people on nullification bases to say, “I don’t agree with any of this legislation. I don’t care whether he passed a joint to a 17-year-old or not. I’m acquitting.” Because of that, and many other reasons, you’re going to find a lot more strain.
Senator Petitclerc: Mr. Robichaud, I would like to hear your comments on decriminalization and possession. We are talking about 5 grams for youth. Here and elsewhere, decriminalizing possession of 5 grams for youth means putting cannabis in the hands of our children. In 2016, 55,000 cannabis-related offences were reported to the police, which led to 23,000 charges. In your notes, you mention that there is a great deal of pressure on the judicial system. I would like to hear your comments on that. In your opinion, will Bill C-45 help alleviate that pressure?
Mr. Robichaud: The translation wasn’t working and probably, given my last name, there was an assumption to be made, but I apologize, I don’t speak French proficiently.
I think what your question related to is the disproportionate treatment of youth as it relates to 5 grams and 30 grams as adults.
Extrapolating on that and inferring as much as I can from your question, the biggest problem with the 5 grams, as Mr. Friedman pointed out already, is we’re criminalizing an aspect for youth that is entirely asymmetrical to adults. No other aspect in the Criminal Code that I’m aware of does this. I called an expert on youth criminal law today on this and he’s of the same view.
I hope this is answering the question. The issue has many problems with it. From a constitutional point of view, I suspect the courts are going to step in and say you can’t treat people differently based upon age and the amount.
The other problem, which is far more troubling, has two parts. One is that it seems to go against the legislation, both in the Youth Criminal Justice Act and the cannabis act, in saying we’re trying to protect youth and reintegrate them back into society. It triggers another issue, and I’ll give a practical example we can all understand.
Imagine a youth who is charged with possession of 30 grams of marijuana and they are prosecuted by say of summary conviction. They go to the Youth Criminal Justice Act and receive nothing but a reprimand; it’s a sealed record. Great, I suppose. Then what happens is that that youth, in addition to a reprimand, is placed on some conditions, and that youth fails to show up to the probation officer. They’re now in breach of their probation as an adult. That means that within that sealed period they’ve essentially opened it back up and they’ve obtained a permanent adult criminal record for doing something an adult never could.
That alone is problematic with reintegration and employment, not to mention being permanently banned from entering into the United States, because of this permanent record and the unsealing that has come as a result of a trivial breach on the part of the youth that never would have been an offence as an adult.
Senator Petitclerc: Thank you.
Senator Gold: I have a question for you all: What is your view on home cultivation?
But the real thrust of my question is for Professor Boyd. The committee has heard a lot about the potential health consequences of cannabis use on the developing brain, but there’s a social cost, of course, to criminalization, and I wonder if you could elaborate more on the extent to which Bill C-45 might help to minimize the social consequences of criminalization.
Mr. Boyd: I think what we’ve seen in Washington, and perhaps Colorado more specifically, is a rapid reduction in the number of charges coming forward as a consequence of legalization. It’s a more commercial legalization than what we’re imagining in Canada. Much will depend upon whether there is an appetite to prosecute possession of illicit cannabis, for example.
I would be surprised to see a lot of these cases going forward subsequent to legalization. I think that this is really a part of the act that’s designed to appease those who are very worried about the consequences of legalization as opposed to something really practical and giving direction, such as, “We want you to clamp down on possession of illicit cannabis.” I really don’t think that is it at all.
So I do see a tremendous benefit in moving forward with this. The comments made particularly by the first three speakers spoke about many limitations in the bill. I recognize that, but I want this bill to go forward. I think it’s a huge change. It enables human freedom in a very fundamental way, and I do believe that the consequence will be significant reductions in criminalization of use, distribution and production, and that’s a positive.
We’ve learned a lot in the last five to 10 years about both the benefits and the harms of cannabis. It’s legalization that is opening up the debate and has given us the capacity.
Mr. Conroy: Didn’t the Senate committee of the late Senator Nolin conclude that putting people through the criminal justice system is far more damaging to them than letting them consume some cannabis? I’m waiting for the day when one of these experts will do a study on the impact on the developing brain of taking somebody, arresting them and putting them through the criminal justice system. I can assure you that the consequences are far worse than having a few puffs on a marijuana cigarette.
Mr. Friedman: It’s interesting when we think about the social cost of criminalization and how it relates to home cultivation.
The primary social cost that I see on a daily basis is encouraging organized crime to profit from cannabis and its current criminalization. My hope, and what I think is a positive in the bill with respect to home cultivation, is that it can address the issue of limited supply, at least in the short term. That is, if supply cannot meet the demand that would otherwise be going to the illicit market, perhaps home cultivation within the limits as prescribed, as a starting point, might at the very least stop an immediate flow out to the illicit market, though a concern of mine is doing so in shared dwelling houses.
I echo Mr. Conroy regarding the greatest social cost, because we all know and the three of us have all seen what happens to people when they go through the criminal justice system. We know about the effects of criminalization. We know that where a scalpel of social policy is required, the criminal law is instead a sledgehammer.
Hopefully, this is a first step to keep people out of the black market and within the legal framework.
Mr. Robichaud: One concern I have is how quickly we can move from lawful citizen into a criminal when you have four plants and to have the skills to ensure that it’s always at four plants and not exceeding that. Through natural processes, one may die and people will back up and have more plants, so I think that’s a rather blunt instrument — that seems to be the theme here — to say to someone you have moved immediately as a result of one plant.
Of course, it goes without saying there are some absurdities in having four plants in one dwelling regardless of the size of that dwelling. You could have a farmhouse in Sudbury and even if three adults live there you’re limited to four plants, and yet you could have an apartment in Toronto and have 200 pounds of dried marijuana that you obtained legally. It seems like a rather absurd way to deal with this. There’s a lot to be said, but I’ll limit it to that.
Mr. Conroy: Did the committee know you can grow 15 kilograms of tobacco in your home for yourself and everybody over the age of 18, and you can make as much beer, wine and spirits in your basement as you want and share it with your neighbours as long as you don’t sell it?
The evidence in Allard again was that people were forced to do home grows because that’s what the medical regulations required. There was no other source. We had to go to court to force the government to provide the research supply as a commercial supply.
Then, when they tried to take away the right to grow, the evidence was the patients voted with their feet and went to the dispensaries and that’s why we had this huge increase in dispensaries. Most people don’t want to grow; they want to go to a store. That’s going to be critical to this whole process.
Senator Munson: Instead of Houston, it’s “Ottawa, we have a problem.” It’s coming at us from different ways here. Mr. Friedman, you brought up a lot of points dealing with this issue of what could happen to young people who find themselves in prison when they shouldn’t be there, not to mention the poor and others.
We talk so much around here about regulation as if we think Canadians know what regulation means. Canadians don’t have a clue, and sometimes I don’t have a clue, because when all these Department of Justice lawyers drafted this stuff up, you’d think they’d be progressive enough to see the 12 or 15 loopholes that you mentioned here today that should have been addressed before this was put before us.
So is there any hope that with regulations and defining them, after the bill becomes law — because it will become law and receive Royal Assent — in that period of time we can fix these loopholes that you talk about in regulation? The general public will think after September or in July that’s it’s all legal and they can do what they want; but they won’t be able to do what they want because there’s not that regulatory procedure in place. Others can answer this too.
Mr. Friedman: Thank you very much, senator. It’s a great question.
I’m of two minds about that. I’m hesitant to say kick the can down the road and let cabinet come up with regulations which can blunt some of the effects of the cannabis act. The real problem here is that this is criminal law, and anyone who knows criminal law or who has opened the Criminal Code knows that ignorance of the law is no defence.
At the same time, that stands in tension with another fundamental principle of democracy, which is that citizens ought to be on notice as to what conduct is legal and what conduct is illegal. Frankly, and this is a matter of public or civics education, the public has no idea what is legal and what is illegal when it comes to cannabis. In fact, today, and I’m sure Mr. Robichaud has had this exact same conversation in his office with potential clients, people say, “I thought it was already legal.” That was happening to me five years ago and that will continue to happen in any quantity.
There is a larger role for government to play here in some way, which is, instead of regulation, to have a focused campaign of public education. You have to remember, you move one millimetre outside of the regulated sphere, if you’re not within that ticket sphere, the consequences are criminal. A criminal record when it comes to employment, travel and immigration. People need to be educated, because if you think the police are going to have difficulty enforcing this law — and they will — and the courts will have difficulty interpreting it, think about the average Joe with no legal education and no law enforcement background having to sift their way through, and one misstep is criminalization.
Mr. Robichaud: To build upon that, because it’s an important point we can’t lose sight of, criminal law is a blunt instrument, and the bluntness of that instrument is often used against the most disadvantaged and vulnerable members of society. As criminal defence lawyers, we see very technical violations being used disproportionately compared to others.
Going back to my example of the person in Sudbury, if they have 7 or 18 plants it’s very common that people might look the other way. If you have 150 grams in your apartment in Toronto, then I suspect there would be less inclination to let that slide. That is a big concern because a lot of what we see is people right on that fine line, and the bluntness is determined by police officers in the moment acting in ways that they feel are appropriate. That amount of discretion in some instances — not all — can be unfair and very disproportionate.
Senator Munson: I’d like an answer from the West Coast.
Mr. Conroy: I’ve been trying to get rid of prohibition, as I said, for the better part of 45 years and everybody said you’re trying to talk yourself out of business, but I found trying to educate people about legalization is even more difficult than telling them about prohibition. In B.C. there have been so many people who have been doing things, and now they realize they’re going to be subject to the law.
I think we will be able to fix some of these problems with the regulations, but some of the stuff that is in the act will have to be amended. I’m with Professor Boyd and the others; we need to pass this as the way forward, and then we can try to fix up the problems.
Senator Poirier: Thank you all for being here. The first question I have is exactly along the lines of what we’ve been discussing. We hear in the community a lot about the health risks for youth under a certain age and the need for more education on that end. There seems to be a need for more education on the consequence of the law. We’re seeing a lot of people out there who think — and this is not just the youth, it’s as much the adults — that this is just going to make everything that I’m already doing legal. Whether it’s growing it, smoking it in places they shouldn’t, or driving. I understand because I’m hearing the same thing out there.
My other question I want to ask is on home growing — I’m hoping somebody could give us a little bit of clarification on it. With past witnesses we have already heard and know that on home growing and the decisions on age, the provincial governments have the right to set the limits. We’ve also seen and heard that the Province of Quebec, and I think Manitoba, have already passed legislation that plants will not be allowed to be grown in their provinces. We’ve also heard the City of Richmond, B.C., I think it is, has taken the position that marijuana will not be legal within their jurisdiction and municipality.
So we’re hearing from other witnesses that there could be potential court challenges coming up because of that. I wanted to know if you could give me your point of view on that. Anyone can answer.
Mr. Friedman: That engages a different part of the Constitution than criminal lawyers usually work with, namely the Constitution Act, not the Charter of Rights and Freedoms.
What we have here is cannabis which is regulated, in this sphere and in the past regulated among other heads, under the criminal law. It’s interesting because the cannabis act doesn’t actually legalize marijuana in that sense. It simply provides for offences and other penalties. So there’s no doubt that if municipalities or provinces attempted to “criminalize” it — and they can’t criminalize because they can’t create criminal offences — that would lead to endless constitutional challenges.
The way the law is presently framed, notwithstanding the purposive statements, the purpose is actually to prohibit — but only prohibit certain areas. That’s the kind of thing that could have been addressed by drafting the law differently, to make it clear that the substance is legal and then building upon that. By taking the prohibitionist view of the legislation, which is what we have here and it ought to pass because it’s better than what we have now, that absolutely opens the door for those types of conflicts and challenges.
Mr. Boyd: I would add that the risk of not allowing any kind of home growing is that you may create an incentive for a black market. I’m not too sure that’s likely, given the kinds of comments we’ve heard to date that most people will prefer to purchase legally, and if the price is set at a reasonable level that’s not going to be an issue. We’re going to have a problem if Richmond, B.C. has, as you pointed out, decided not to have retail sales. In the context of the Lower Mainland of British Columbia, that’s not going to create huge incentives for a black market because all of the bordering jurisdictions will have access, and there won’t be any criminalization of possession of licit cannabis within Richmond, B.C. They’ve just decided they don’t want retail outlets. Municipalities have that right. It’s a land-use issue and we’re going to see something of a patchwork quilt. It’s a bit like alcohol — wet and dry — we’re back to that kind of regime. It’s just going to take time, and this will sort itself out.
Mr. Conroy: And there will be some constitutional challenges.
Mr. Boyd: Yes, I would think so.
Senator Raine: I’d like to start with a question for all of our witnesses. We want to do our best to prevent access by young people, knowing the impact on their developing brains, and also to prevent the promotion of cannabis to young people. What would you propose?
Mr. Conroy: The first thing I would propose is that you read the recent article that came out last week. It was referred to by witnesses Emily Jenkins and Jenna Valleriani last Wednesday before you which showed that the stuff about the developing brain was overstated, and that after short periods of abstinence they can find no problems in terms of cognitive deficits.
You put “brain” and “young person” or “child” together, and it’s an emotional term and many people are upset about it. But if you go back and look at the fact that we’ve had people using cannabis at various ages for as long as I’ve been practising, I say, where are the bodies? Where are the problems?
We’re finding out that from legalization we are now getting some people coming forward and finding out some statistics; about 2 per cent of the youth was the study that I read that are having problems.
It’s not the huge problem that it’s being made out to be, and I think that one should consider that we move forward and we are going to find out. We know there’s not going to be any huge problems, but we may find out that there are certain more vulnerable groups. People who have a history of schizophrenia in their family and stuff like that, whatever age they are, shouldn’t be consuming cannabis.
People need to be educated. Education about what this substance does and how it can affect different people different ways has got to be one of the most important things as we go forward so that we limit any particular problems for everybody.
Mr. Robichaud: I think it’s an excellent question. As this panel has already heard from other doctors, Dr. Milin and Dr. Kahan, there clearly are, at least in their medical opinion, issues relating to the developing mind.
I ask the Senate to reflect back upon that; the sentiment there, as I remember, was that you’re not going to be able to eliminate an underground market. Injecting the legal aspect into that and dealing with youth coming before the criminal justice system, we have to be very careful that we do not allow youth to identify as criminals. This is such an important part and recognized within the Youth Criminal Justice Act. Once a youth identifies as a criminal, it’s very hard to undo that. To use a very Canadian example, a young hockey player is always a hockey player. Even 20 years later you’re still going to identify as such.
To answer your question, more steps need to be taken to ensure that youth are just never put into the criminal justice system. Ironically, that’s how we’re going to protect them because the underground markets are going to get to them and they need to be able to be equipped to deal with that, or we need to cut out the legs of the underground market to say there’s no profitability in it.
My concern as a criminal defence lawyer is that these harsh sentences are simply not going to deter organized crime. They are going to go after youth because that is now their market. Combine all of those factors, and I think we’re working against both the proposed cannabis act as well as the Youth Criminal Justice Act in protecting youth.
Mr. Friedman: To build on what Mr. Robichaud said, I agree completely. To me it’s counterintuitive in the sense that if the medical evidence does support an increased risk with respect to youth — and I understand there’s a debate in that regard — the criminalization comes at the wrong end. In other words, we recognize, as a principle in criminal justice, that youth have diminished responsibility. They have diminished maturity. They have a diminished capacity. So we tend to punish them less severely. But instead of focusing only on the adult side, we’ve also created a host of new penalties and new prohibitions for to young people. The young people, even accepting that argument, they’re the victims here. It’s as if we’re punishing the victims for something that is an inherent vulnerability, that is, their age and immaturity.
My proposal would be to combine education and research — and research can only happen openly post-legalization in a meaningful way — with a focus on those individuals who would be distributing to young people, not on the young people themselves, not giving them that stigma. I agree completely with Mr. Robichaud; if people are labelled as criminals and if they have experience in the criminal justice system, that becomes a comfortable and familiar environment for them. The very last place we want our young people to be is in the criminal justice system.
Senator Omidvar: I’ll make my questions very quick because I want to get two questions in. My first question is to Mr. Robichaud. You spoke in your brief about the severe immigration consequences for non-citizens of Canada. Could you describe what they are and what the remedies could be?
Mr. Robichaud: Thank you. That’s an excellent question, one that has been overlooked greatly, although recently in the news Minister Goodale addressed that in certain capacities.
It clearly is not an understanding or agreement from what I can see with different jurisdictions. Although I can only speak anecdotally because I’m not a U.S. immigration lawyer, as I understand it, any conviction and any admission that one has used any type of illicit substance, particularly cannabis, could deem them inadmissible into the United States permanently.
I may be wrong about that, but that is certainly a concern that has come back across my desk as a criminal defence lawyer in working with U.S. immigration lawyers, that people are barred, inadmissible.
That also raises other concerns because the question then becomes who has access to this information. As Mr. Friedman has indicated, the ticketing aspects may or may not be accessible under section 51, I believe, and that too raises concerns.
I think a lot of foresight needs to be put into how this will play out for emigration from Canada. With respect to immigration, if that was what you’re asking, then this does have long-term effects. I’m not an immigration lawyer, but what I know is that if people are facing certain offences it will deem them inadmissible into Canada and make them subject to deportation regardless of the sentence that they actually face.
As best I can recall, if one is eligible for a sentence to serve in the higher range of the 14 years, they’re deemed inadmissible into Canada with only an appeal on humanitarian grounds for staying here. That means, for example, the 18-year-old person who has come to Canada as a refugee who passes a joint to a 17-year-old would be deemed inadmissible with an appeal subject to humanitarian grounds. That last aspect I’m not entirely sure of, but undoubtedly there are major immigration consequences.
Senator Omidvar: Thank you. Perhaps we can get back to this later.
My second question is to Mr. Conroy and Mr. Boyd in Vancouver. We heard very compelling testimony last week from a young person who talked about her fears of social sharing and the harsh penalties associated with a 19-year-old sharing a joint with a 17-year-old.
I wonder if we can learn something from the sexual consent legislation, which says that a 14- to 15-year-old can engage in sexual activities with someone older than themselves as long as that person is fewer than five years older than him or her, and as long as there is not a relationship of trust, authority or dependency. Is there something to learn from this?
Mr. Boyd: There may be a little something to learn, but I’m not sure it’s a great analogy — sexual assault. I think more of the era in which I was raised, with the penalties related to underage drinking. So an analogy between sexual assault and social sharing makes more sense in the context of alcohol or another substance of that kind than in the context of that age difference. I would agree that if you’re talking about a 40-year-old and a 16-year-old with cannabis, it’s not the same kind of element as with sexuality, but there’s something of a correlation there.
Senator Omidvar: We were talking about sexual consent, not sexual assault.
Mr. Boyd: Yes, I know.
Mr. Conroy: My view is that the flaw in the bill is that there’s no source for the 12- to 17-year-old, so you’re forcing them to go to a black market. As Bill Blair explained to the committee, it’s the provinces that are then passing legislation. B.C. recently has proposed that they will have a minor-in-possession offence with a penalty of up to $2,000.
You’re driving it underground. You should have an amendment whereby a parent or a guardian or an adult with the written consent of a parent or a guardian should be able to supply the 12- to 17-year-old so they don’t go to the black market so that you are looking at Youth Criminal Justice Act principles and saying, the parents and the guardians, “We want to have a conversation about this. We don’t want you to go to the black market. We want you to have a way of learning about this that way and not through the criminal justice system.”
Senator Lankin: My questions are directed to Professor Boyd, but Mr. Conroy or anyone is welcome to respond.
A thought came to my mind about the issue of home growing and the likelihood of people wanting to actually grow their own. You’re saying you don’t think it will be a lot.
One of the problems we have is that none of us know. I think we’re taking a big leap here, and your recommendation is to do as much as you can to make this a public health approach as opposed to a prohibition approach.
I’m interested in the likelihood of people wanting to grow. These two examples come from B.C. I’m sorry, this is anecdotal. That’s not the best evidence, but we don’t have a lot of evidence.
I know two people who in the early days of medical marijuana got their certification to receive it, whatever the language is, and then also a licence to grow. For both of these people it was up to 10 plants. I don’t know if that’s standard or if there were other amounts, but they both have the ability to grow up to 10 plants.
Both of them, within the course of a year or so, gave that up and didn’t renew that licence and didn’t grow. One of the reasons was the proliferation of dispensaries where they could just go and buy it, where they had more choice for the product that they wanted for the reason that they wanted it. That’s the illicit market, but that gave them some ease of access that made those two people abandon the grow operations that they had of only 10 plants.
Did you see other examples of that, and does that figure into your assumptions that this won’t be a really popular option for people?
I should preface this by saying I now live in northern Ontario, and as I travel to different mainly rural communities in northern Ontario talking about this, most people are aghast that it would be four plants because they grow more than that now. It is not usually in their house, usually outside. It’s in northern environments, so it’s a summer activity there. In any event, I’m interested in these 10 plants.
Mr. Boyd: One of the keys is to think about it in terms of what’s available. We know, for example, that with alcohol very few of us would want to make our own wine. We can’t produce the quality that’s available at a relatively inexpensive price in a liquor store. The dispensaries are proving much the same point with respect to cannabis. They have a wide number of strains with varying CBD and THC levels, something you didn’t even talk about five to 10 years ago.
So I think most people aren’t going to want to go down that road, provided that the price is reasonable. We have to remember that in terms of price per unit, alcohol, a legal drug, is much more expensive than cannabis, an illegal drug. So I’m not sure that we have to be all that worried about that kind of issue, and I would grant that it’s going to vary to some extent depending on where one lives.
In Vancouver, where we come from, it’s a very different environment. It wouldn’t make sense for most people who use either recreationally or medicinally or some combination of the two to start to grow. It would be counterproductive for many.
Mr. Conroy: The 10 grams that you mentioned would mean that those people would —
Senator Lankin: Ten plants.
Mr. Conroy: One to three grams a day would give you the ability to grow 10 plants. So that’s usually the lowest dosage. There are many medical patients that have far greater dosages. In fact there were 38,000 at the time of March of 2014 when the injunction was obtained, and I understand there’s over 200,000 people now who have medical permits to grow and possess.
As I said, the evidence in Allard indicated that when the government MMPR process wasn’t working and getting the medicine to the patients, they voted with their feet and went to the dispensaries. So I agree with Professor Neil Boyd that most people don’t want to grow. It costs money to grow. It’s complicated.
Here in B.C. there’s a huge industry that grew up. In the early days, the stuff came up by boat loads from Thailand and Colombia, and then B.C. became an export economy. People were growing it in basements under lights. There’s all this technology and everything that’s developed in order to make it safe, even engineered solutions. The BloomBox is where you put everything in and everything is taken care of. You will have some people doing that, and you’ve got some people who are really very anxious to be able to do that. But, like with alcohol, like with tobacco, most people won’t. Hopefully if we have a well-developed retail market we should be okay.
If the person you are talking about were to go to the dispensary because they didn’t want to grow and you say they are getting into the illegal market, if the dispensary was one that made sure they had a medical card, which you say they had, then arguably all that dispensary is doing is filling the gap that the government has failed to provide for in providing reasonable access, which the courts ruled back in 2001 the government had to do in the Parker case.
Senator Bernard: One of my questions has already been asked and answered. I was just developing another question, and that’s in regard to Mr. Robichaud. One of the points that you weren’t able to discuss earlier was the potential for disproportionate enforcement towards Black, Indigenous and other racialized Canadians. If there’s time, can you elaborate a bit on that?
I’d like to know your opinion or your perspective on whether or not pardons should be granted for those who have been criminalized for simple possession.
Mr. Robichaud: Yes. I’ll answer the latter question first. Unquestionably yes, if we’re going to decriminalize this, stigmatizing people and decriminalizing them needs to be dealt with very abruptly. I believe that there’s some talk about that, once this legislation passes, and I hope it does. That needs to be treated as a priority because right now many Canadians are prevented from lawful employment and are stigmatized based on nothing more than something that will soon be legal.
With respect to the more complicated question, and equally important, is that I do feel that this will be used disproportionately. An article came out quite recently from Vice magazine that went through statistically some of the disproportionate application of charges. In a 2015 Ontario student drug survey, 39 per cent of people who used were White, and 14 per cent were Black. In police data from 2003 to 2013, 33.8 per cent of marijuana charges were against Black people. That’s a problem. It comes back to what I was just indicating, and that is that the criminal justice system is a blunt instrument and it’s used disproportionately against certain groups. I’m fearful that little discretion will be employed when it comes to people who are Black, people who are Indigenous, other racialized people. I have a very serious concern about that. We’ve seen this first-hand. I’ve seen this first-hand as a criminal defence lawyer in the application and use of provincial offences, such as the Trespass to Property Act and other acts where they’re used as a step up into a broader criminal investigation. Given a lot of the sweeping powers that come from the cannabis act, I’m very concerned that this can be abused.
There is no quick solution to that, of course. It’s a big problem in every aspect. But I think that is something that can’t be lost upon this legislation.
Mr. Conroy: In San Francisco, apparently, they are doing all kinds of different progressive things to address that very issue in terms of funds that are going to be applied into the communities that have been most affected and so on. So the government needs to look at that.
In terms of the pardon question, you need to bring everybody in, not exclude them. We know who they are. We can check out their backgrounds, we can keep track of them. It’s much easier to enforce under civil administrative rules than under the criminal law. If you force them out, they are potentially competing with you in the black market.
We mustn’t forget that racism was the basis for the Opium Act in 1908 in order get rid of the Chinese people because of the opium dens and the claims for loss of profits after the riots. As Mr. Boyd said, there was no problem with cannabis in 1923 when we added to it, but in 1972, when the charges went from 800 the previous year to 10,000, we hybridized the offences because White, middle-class kids were getting busted. We couldn’t have that going on.
So there’s a whole racial element to this whole thing. If you study many of the other drugs, you’ll find the same thing. So it’s a very important thing, in my submission, that we address the problems that have been disproportionately caused to the Indigenous communities throughout Canada as a result and that may still occur in the future based on some of the provisions in the bill.
Mr. Friedman: Just to build on what both Mr. Conroy and Mr. Robichaud said, one of the fundamental problems with the ticketing scheme is that it’s exclusively at the discretion of the peace officer making the arrest. We know that there are almost countless police forces across this country, with different policies and different ways of doing their business. Some are better when it comes to policing racialized, minority, disadvantaged groups. Others are decidedly less so.
My proposal would be that, if there is going to be this ticketing mechanism, it should be mandatory, not discretionary. Otherwise, you leave it in the mind of that individual police officer. What kind of day is he having? What kind of interaction has he had with this person? Is it someone that he has dubbed a suspicious person? Is it someone that he wants to leave this record on? What are the mechanisms of appeal for that? The answer is nothing. It’s up to the discretion of the police officer. We tend to know — and maybe because criminal defence lawyers are a cynical bunch, or maybe it’s because of the work we do — that discretion is ultimately abused. We can imagine a scenario where peace officers who are policing well-off or whiter neighbourhoods use that discretion every single day, but, when they want to stop and frisk or want an excuse to get into someone’s backpack or their trunk, when a cannabis act charge is laid, they put away the ticket option, and it goes right to the laying of an information.
The Chair: I’d like to get a question in before round two.
One of the most disturbing things that we’ve learned in this testimony today — we’ve heard a bit of it before, but particularly today — is that we could still be criminalizing young people out there. One of the objectives of this bill is to stop criminalizing our young people, and yet there are some circumstances — you start to lay them out in some of the comments you’ve made — where they could end up as part of the criminal justice system.
I understand that the government is trying to come down hard on the illicit market. The older person who sells to a younger person or gives cannabis to a younger person, they want to deal with that more harshly. Fourteen years seems like quite an extreme because the two gentlemen in Vancouver keep drawing the comparisons with alcohol. If an older person gave a kid a rum and coke or even a bottle of whisky, he wouldn’t be getting 14 years in jail for that. So there’s absolutely no comparison in terms of the kind of penalties as far as I can see.
But, here, we’re talking about some very severe things. I can’t imagine, for example, if a 19-year-old was sharing weed with a friend who is 17, that any court, any judge, is going to sentence that person to a prison term. How do we even this out and prevent continuing criminalization of our youth?
Mr. Friedman: I’m sure that my colleagues have very valuable contributions to make. I’ll just give one thought. If we keep talking about this analogy with alcohol, I note that the Liquor Licence Act of Ontario actually provides for a specific exemption for parents to give young people under the age of 19 alcohol within a private place or a residence. That’s not an offence at all. It’s actually specifically mandated. So there’s no reason why similar exemptions couldn’t be carved out to both stop criminalizing what is really not criminal behaviour and to keep youth from going to the illicit market.
My colleagues can certainly address other aspects of that question, but if we’re looking at the liquor analogy, let’s look at what the provinces do. They deal with this exact question without criminalizing either the adult or the youth.
Mr. Robichaud: Thank you, senator. I’ll be brief because I know my colleagues have a lot to say about this.
I, too, share the concerns that it seems you have as well. This legislation is setting up youth for failure, in a very profound way, in my view. I think that we really need to take a look at the long-term, practical effects that this is going to have upon youth. I think we need to do everything to decriminalize it for them and to educate them. What Mr. Friedman is alluding to is that there’s a certain sensibility to that act, that we would rather have our youth in our homes, if we know they’re going to drink, to be under supervision and to educate them on responsible drinking because we all know — and certainly the statistics support this because youth are at an all-time high in the developed world in Canada in usage — it’s going to happen.
So the question is, do we want that to happen by buying their marijuana from an underground market, smoking it at a park and then driving home, or do we want to have parents involved so that we can take a responsible approach? I think this legislation fails in that specific regard and in a broader regard that we’ve already discussed.
Mr. Conroy: Did you know that, under the Tobacco Act, tobacco being our number one killer, it’s only an offence to supply a young person in public with tobacco? So you’ve got that exemption in terms of the Tobacco Act. You’ve got the exemption just mentioned a minute ago in terms of alcohol. So I think those are very important.
We need to remember that there’s no lethal dose for cannabis. Certainly, people can get sick, but there’s no lethal dose. So we need to learn from past legislation and provisions in order to do what the previous witnesses and the questioner indicated.
Mr. Boyd: All of us have been saying that there’s too much criminalization in this bill. I think it was an attempt by the government to go down a road that would curry favour with a range of perspectives, politically left and right. I think they overdid it with criminalization. At the same time, if this bill were to falter, if it were not to get Royal Assent, it seems to me that that might mean that we would never get any kind of legalization of cannabis. We have to hope that the over-criminalization that is represented in this bill will be amended by further changes, by either regulation or by amendments to the act.
The Chair: We might just do that. You never know.
Mr. Conroy: This isn’t the first time we’ve come up with a brilliant —
The Chair: We have four minutes left. I have two people down for the second round. I would suggest that Senator Seidman and Senator Raine just pose a question, no preamble. I’ll take both of your questions, and then we’ll take the answers after both of your questions are on the table.
Senator Seidman: Mr. Robichaud, you have said that the police will be more willing to write tickets for teenage marijuana possession than they would have been to lay criminal charges. As a result, in the process of legalization, what, in fact, is going to happen is that far more charges will be laid, and prosecutors will be more inclined to seek convictions. If you could help me to understand that.
The Chair: Just hold on. Let me get Senator Raine’s question, and then I’ll get the answers.
Senator Raine: My question really would be —
The Chair: To whom?
Senator Raine: To, I guess, Mr. Robichaud. What amendment would you propose that would deal with this issue of the problem with the youth?
Mr. Robichaud: With respect to the ticketing, as I understand the legislation, it does not actually allow youth to be ticketed. When it’s over 5 grams, it automatically triggers the criminalization and the whole process that goes with that, which comes to your question, Senator Raine. That is, I think we need to really re-evaluate what it means to be labelled a criminal as a youth and be prosecuted under the Youth Criminal Justice Act. At a very minimum, to reach a symmetry and an inevitable and successful constitutional challenge, it needs to be raised to 30 grams. But I think we want to put serious consideration into broadening that in recognizing all of the very important principles within the Youth Criminal Justice Act and even the purpose of this legislation that this is not to — as Mr. Friedman has put it — victimize the victims. We need to do other things to keep them out of the system. Whether that’s by increasing the minimums or doing better education, I’m not sure exactly what the answer is, but the answer is not to criminalize them for something less than their adult counterparts and to then permanently stigmatize them for slight deviations later on. I think that’s a really dangerous road.
Mr. Friedman: There’s a very simple amendment that can be made to this legislation, and that is under section 51, to change the wording from “an individual who is 18 years of age or older” to simply “any person.”
All of a sudden, then, youth fall within that, and if the ticketing regime is to have any benefit, the youth can have the benefit of that. They can have the benefit of having no record or a record held separately from other judicial records.
Right now, to me, when I read this — and I’ve read the legislation, the legislative summaries and the commentaries a number of times — I cannot for the life of me understand what the possible argument is to deny youth access to the ticketing regime. It simply makes no sense.
Mr. Conroy: I agree with the previous two speakers. I’m delighted to hear there is a section in the Ontario legislation we could use to put in the cannabis act in terms of the role of parents and guardians in relation to alcohol, and I’ve told you already in terms of tobacco. I think that’s the way we have to go.
You had a witness last week, Mr. O’Soup from Saskatchewan in the Indigenous community, who expressed serious concerns about ticketing going on in that community. Again, you can buy as much booze as you want from the liquor store and take it home. You don’t have to lock it up on the way home and keep it in a locked box at home, and it’s the same with tobacco.
Given my experience over the years with people in the cannabis industry, frankly, I think the 30 grams and even the 150 grams in the medical model is ridiculous. But I appreciate that unlike us criminal defence lawyers or those of us who have had experience in the criminal justice system and who still think, naively, I say, that heavy penalties will actually work, that’s what we have to overcome. We have to realize that for tobacco it is a one- to two-year max, and it’s the same with alcohol, and Le Dain recommended a five-year max. We’re over the top, and we’re going to cause problems if we enforce it.
Like Professor Boyd, I think a lot of it is smoke and mirrors in order to make sure the bill gets through. This is the fourth or fifth time we’ve come up to the brink of passing legislation that would ameliorate cannabis laws.
Mr. Boyd: I would like to stress that the point made by Mr. Robichaud is an important one. The approach taken is entirely inconsistent with the Youth Criminal Justice Act. That has been an important piece of legislation, and this is at odds with that legislation.
The Chair: Well, thank you very much to all four of you for giving us your thoughts about it. It’s been most helpful. With that, committee members, we’ve come to the end of this meeting.