Bill C-45 (Historical)

Cannabis Act

An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts

This enactment enacts the Cannabis Act to provide legal access to cannabis and to control and regulate its production, distribution and sale.
The objectives of the Act are to prevent young persons from accessing cannabis, to protect public health and public safety by establishing strict product safety and product quality requirements and to deter criminal activity by imposing serious criminal penalties for those operating outside the legal framework. The Act is also intended to reduce the burden on the criminal justice system in relation to cannabis.
The Act
(a) establishes criminal prohibitions such as the unlawful sale or distribution of cannabis, including its sale or distribution to young persons, and the unlawful possession, production, importation and exportation of cannabis;
(b) enables the Minister to authorize the possession, production, distribution, sale, importation and exportation of cannabis, as well as to suspend, amend or revoke those authorizations when warranted;
(c) authorizes persons to possess, sell or distribute cannabis if they are authorized to sell cannabis under a provincial Act that contains certain legislative measures;
(d) prohibits any promotion, packaging and labelling of cannabis that could be appealing to young persons or encourage its consumption, while allowing consumers to have access to information with which they can make informed decisions about the consumption of cannabis;
(e) provides for inspection powers, the authority to impose administrative monetary penalties and the ability to commence proceedings for certain offences by means of a ticket;
(f) includes mechanisms to deal with seized cannabis and other property;
(g) authorizes the Minister to make orders in relation to matters such as product recalls, the provision of information, the conduct of tests or studies, and the taking of measures to prevent non-compliance with the Act;
(h) permits the establishment of a cannabis tracking system for the purposes of the enforcement and administration of the Act;
(i) authorizes the Minister to fix, by order, fees related to the administration of the Act; and
(j) authorizes the Governor in Council to make regulations respecting such matters as quality, testing, composition, packaging and labelling of cannabis, security clearances and the collection and disclosure of information in respect of cannabis as well as to make regulations exempting certain persons or classes of cannabis from the application of the Act.
This enactment also amends the Controlled Drugs and Substances Act to, among other things, increase the maximum penalties for certain offences and to authorize the Minister to engage persons having technical or specialized knowledge to provide advice. It repeals item 1 of Schedule II and makes consequential amendments to that Act as the result of that repeal.
In addition, it repeals Part XII.‍1 of the Criminal Code, which deals with instruments and literature for illicit drug use, and makes consequential amendments to that Act.
It amends the Non-smokers’ Health Act to prohibit the smoking and vaping of cannabis in federally regulated places and conveyances.
Finally, it makes consequential amendments to other Acts.

[Diane Labelle]

Yes, the approach in Bill C-45 is such that it allows for provinces to make a determination based on their local population and local needs as to the range of possession limits. They could not, I think—

[Diane Labelle]

I will answer that question, if I may, Mr. Chair.

In terms of criminal law, the major prohibitions in Bill C-45 are the same everywhere in Canada. If it is a little difficult to answer your question, it is because it is going to depend on provincial legislation. To provide an answer, we would really have to see the details of the legislation in each province in order to find out at what point someone could be subject to a penalty under provincial legislation and a penalty under Bill C-45.

This is a real issue, which is being studied as the legislation is being drafted. The discussions between the federal government and the provinces and territories are very important here. As Ms. Bogden indicated, we also wanted to have an approach based on a co-operative federal system. It was important to recognize that the provinces wanted to have their input. We had to provide the space they needed to be able to adapt the rules to their own situations. Knowing how the legislation is going to apply is somewhat of a theoretical issue at the moment, but we are going to study it.

[Eric Costen]

If I may, I may even go back to the price question briefly. The parliamentary budget officer, in the report that was published a number of months ago, included quite an elaborate commentary on price, including providing a mid-range average of the current illegal market price, which put it, if my memory serves me correctly, at just under nine dollars. While I think the observation you've made is a very good one, as Ms. Bogden just described, when we look at the reality of pricing amongst the licensed producers, the average midpoint price price is only slightly higher, at just over nine dollars. This is obviously going to be a very dynamic marketplace and price is going to be absolutely critical to achieving that second principal government objective.

In terms of your question about regulations and the future of those regulations, as you've no doubt observed, in Bill C-45 there are regulation-making authorities across a whole manner of aspects of the new system, one of which is around security, whether it's physical security or security of the personnel. I would echo Ms. Bogden's comments that the regulations in place right now really were born in time, given the legal status of cannabis. Given all of the observations that have been made about the interest of organized criminal organizations in this marketplace, the regulations were designed in such a way as to create a system with a lot of integrity, whether from a consumer perspective or a government perspective, to ensure that the system wasn't being infiltrated by organized criminal organizations. That, in some part, explains the stringency you observed.

[Carole Morency]

Bill C-45 proposes to prohibit providing, distributing, and selling any amount of cannabis to a young person, and proposes to prohibit using a young person to commit a cannabis-related offence. The expectation with this framework for C-45 is that youth should not have any amount of cannabis for use or possession. That's based on health as well, as has already been described by my colleague in terms of the objectives of protecting young persons against the harms associated with use of cannabis.

As has also been noted, the reality is that under a completely prohibited regime, youth in Canada still have a high use and possession of cannabis. Recognizing that, Bill C-45 proposes to carve out a very small amount. If a young person is found to be in possession of five grams or less, Bill C-45 reflects the choice: should persons be criminalized even under the Youth Criminal Justice Act, which has a lesser, more restorative, rehabilitative approach, or should they be given a different way to be dealt with under the law?

It carves out that five grams from the criminal law perspective, because it recognizes the greater harms of exposing young persons to a criminal justice system, not just the record but the whole system, for that small amount. The federal government has been encouraging the provinces and territories to take that five grams and decide how they will deal with it, if they choose to do so, within their areas of legislative competence.

Ontario has already announced that it would not allow any possession of any amount by young persons. It would not allow five grams under its legislative approach, and it would raise the minimum age from 18 to 19. That's a different approach for youth altogether than adults because adults have a different level of maturity. Bill C-45 proposes to legalize, but strictly regulate for adults, and endeavours to keep it out of the hands of youth altogether.

[Carole Morency]

I would just say that Bill C-45 is not promoting or condoning the use of cannabis, but it recognizes that a young person who does come into possession and uses a very small amount—five grams or less—would also be exposed to a greater harm that comes with a criminal record, which can affect their ability in terms of employment and other issues. There are harms in getting involved with the criminal justice system itself, and not just with the record. The whole experience of being involved in the system also can have a greater negative impact than what comes from the use of a small amount of cannabis.

All of that is to say as well that the government, as has been noted, is having a public education campaign to promote awareness not only among youth but among all Canadians about the harms of cannabis use, etc., and that would be part of the targeting for youth not to have access to it.

[Carole Morency]

They can do a warning, a caution, or a referral to a community program, or charges can be laid. Under Bill C-45, that discretion would continue to apply where an offence is alleged to have been committed by a young person, but you were talking about the five grams, and again, that would depend on whether a province has implemented a different approach to deal with the five grams under their non-criminal law powers—

[Carole Morency]

I think there are two parts to the question. I'll start, and then my colleague can finish.

In terms of the ticketing offences, Bill C-45 requires that if a person is convicted pursuant to a ticket, the judicial record of that conviction on the ticket remains separate from other records and cannot be used to identify the person. It is treated differently from a criminal record.

[Carole Morency]

We don't have an actual estimate of costs, but what I can indicate to the committee is the magnitude of the charges and offences before the criminal justice system today. You may know that the Canadian Centre for Justice Statistics releases an annual report on police-reported crimes. In the July Juristat, which reflects the 2016 data, they reported that there were just over 95,400 offences reported to police under the Controlled Drugs and Substances Act. Of these, 58% were related to cannabis. If you drill down further, cannabis possession was the number one charged offence. In 2016, 76% of the charges, or 17,733 charges, were for possession of cannabis. How does that translate to the criminal justice system? Well, the committee may know that the Supreme Court of Canada pronounced on the issue of delays in the criminal justice system in July 2016. The number of cases being processed has a huge impact on the system.

Presumably if and when Bill C-45 is enacted and implemented, one would expect to see fewer charges being laid for simple possession. To the extent that there are charges or there is an offence being committed, police would have new authority under Bill C-45 to deal with ticketing for smaller amounts slightly over the 30-gram possession, so between 30 and 50, as an example. Beyond that, the regular penalties would apply. So Bill C-45 would definitely have an impact in diverting many charges from the system officially. To the extent that some stay in, it would provide new tools to police and the crown to deal with them in a more efficient and effective way, thereby, we would expect, reducing some of the costs to the system overall.

[Diane Labelle]

As stated in the legislative backgrounder as well, we have used that example. The scheme set out in Bill C-45 provides for prohibitions, offences, and penalties, and it authorizes activities in relation to cannabis, while at the same time allowing provinces and territories to enact legislation of their own in this same area.

This comes back to how the legislative power is divided amongst the federal level and the provincial levels. Health is one of these areas that's been described as “amorphous” by the Supreme Court of Canada. Depending on the purpose of the legislation, it can fall either to Parliament under the use of the criminal law power or to the provinces in this very area under a power of their own—for example, local matters or civil rights.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you. I'm going to move to something else if I can.

The Government of Canada information relating to Bill C-45 explains that provinces or territories could “increase the minimum age” of sale of cannabis, but it also says that they may “lower the personal possession limit in their jurisdiction”. That's from the Government of Canada information, “Legalizing and strictly regulating cannabis: the facts”. Is that correct? Would this legislation permit provinces to lower the personal possession limit, which I believe is 30 grams?

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chair, and thank you to all the witnesses for being here today.

Bill C-45 restricts legal cannabis products to dried cannabis, cannabis oil, cannabis plants, plant seeds, and one other part, which escapes me. However, what is clear is that the legislation will continue to keep cannabis products such as edibles, creams, tinctures, patches, and those kinds of things illegal. What percentage of the current cannabis market is taken up by the products that will still remain illegal under the bill?

[Diane Labelle, General Counsel, Health Canada Legal Services, Department of Justice]

I would like to mention to the committee that the purpose of protecting youth is carried throughout the proposed approach before you today. For example, if a province enacts legislation addressing the distribution and retail sale of cannabis, it's required to have a prohibition against selling to youth. That's one item I wanted to mention.

We also need to look at the broader regulatory measures that are proposed in Bill C-45, such as placing restrictions on promotion, particularly promotion that is appealing to youth. We've learned, through lessons from tobacco, that youth are particularly vulnerable to the manipulations of advertising. The Supreme Court of Canada has recognized, in several cases, the significance of protecting youth from these types of measures.

As well as having these two new offences on selling to youth or using youth to commit some sort of a crime with cannabis, we've asked provinces to take this issue into consideration as they develop their own legislation. These measures will carry through restrictions on promotion and advertising aimed at youth, also with packaging and labelling measures.

[Carole Morency]

I would suggest that Bill C-45 strikes a welcome balance; however, the committee may hear from other witnesses as to other ways to address it. I think what's important to bear in mind, as I've mentioned, is that the Youth Criminal Justice Act would apply to young offenders who are dealing with cannabis-related offences and that, in and of itself, also brings a very different lens to dealing with young persons within the criminal justice system.

[Carole Morency]

It is correct, as you've noted, the medical evidence documents the impact that cannabis can have on all Canadians, including on youth and the developing brain. Bill C-45 proposes to protect youth, as I've described, but it also recognizes not just the harm to the health of the young person, but the harm that can come from having a criminal record that can follow a young person throughout their life. It could have an impact on education, employment, or crossing the border, etc. Bill C-45 recognizes that and proposes a very small window. It's not condoning or promoting the use of cannabis, but recognizing the reality that young persons may still access and use cannabis.

The committee may be aware that on Friday, September 8, Ontario announced its intention to move forward with its proposals to address cannabis. It included an announcement to the effect that it would not allow young persons under the age of 19 to possess any amount of cannabis.

It's this combined approach that reflects a balancing of the harms to young persons.

[Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

Bill C-45 proposes criminal offences that would prohibit anyone from selling or distributing cannabis to a young person. The intention with the bill is to keep it out of the hands of young persons. However, the bill does recognize the reality that young persons, even under a completely prohibited regime as we have today, do have access to cannabis and in quite high numbers relative to other countries. Bill C-45 would not propose to criminalize possession of a very small amount—five grams or less—but rather, would leave it to provincial jurisdictions to determine if, and how, they wish to address that through their area of legislative jurisdiction.

To the extent that a young person does commit an offence under Bill C-45, the bill does take the usual criminal law approach. A young person who commits a cannabis offence would be dealt with under the Youth Criminal Justice Act, which takes a more rehabilitative, restorative approach and directs police to consider alternatives to the formal justice system, including cautions or warnings before laying charges, or referrals to community programs.

Those are the criminal law protections that Bill C-45 proposes for youth.

Of course, as my colleague has already mentioned, the bill also proposes numerous requirements that would protect youth against being able to access...in terms of labelling requirements, promotion and advertising, and the like.