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.

[Keith Jones, Chair, Government Relations, Canadian Hemp Trade Alliance]

Thank you very much, Mr. Chair. We very much appreciate the opportunity to appear before the standing committee.

My name is Keith Jones. I am on the board of directors of the Canadian Hemp Trade Alliance. In my day job I'm a general manager of Rowland Farms, which is a large farm in southern Alberta. We've been growing hemp since 1998 when the industrial hemp regulations were first put in place and it first became legal to cultivate hemp here in Canada.

With me is Robert Rae, who is also on the board of directors of Canadian Hemp Trade Alliance. As well, Robert is with Canada Hemp Foods, which is one of the hemp products distributors operating here in Canada. Robert's business involves exporting hemp products to a number of countries around the world.

Canadian Hemp Trade Alliance is a member-based organization that has 250 farmers as members, as well as processors, distributors, plant breeders, and researchers. We're a not-for-profit industry association that is volunteer-driven. We had the opportunity to reach out in Ottawa earlier this spring and were invited to review the cannabis legislation, Bill C-45, when it came out and to consider making a presentation to the committee if we felt there were some unintended consequences that might arise out of the legislation for the hemp industry.

We're here today because we are concerned that, as drafted, Bill C-45 jeopardizes 1,200 jobs in the Canadian hemp industry today, for two specific reasons.

One is that the current legislation does not differentiate between hemp, cannabis, and marijuana.

Related to that, the current legislation assigns responsibility for regulating the production, transportation, and distribution of all cannabis products to the provinces and the municipalities. That is going to create a tremendous burden on the current hemp industry. We operate our own farm in five municipalities, and to try to bring the regulators up to speed will probably curtail our business for a couple of years, based on that requirement right now.

Our proposal for the committee's consideration is, in order to prevent the unintended consequence of derailing the Canadian hemp industry, to exempt hemp in the legislation as item 5 under schedule 2 exemptions by exempting whole hemp plants from the legislation and, because that exemption would then be in place, to carve hemp out of the cannabis regulation within CDSA.

That, then, is our request. I'd like, Mr. Chair, to provide a bit more background in support of our request.

Hemp is very different from marijuana and from cannabis, in that hemp varieties originate from plant breeding that has been done to reduce the total THC in the hemp plant down to below 0.3%. You can't get high from smoking hemp, unless you were to smoke a telephone pole of it, which would be very difficult to do. It is from the plant cannabis sativa. Through the experience of the industrial hemp regulations over the last 19 years, Health Canada has approved a list of cultivars that are known to be hemp. They're confirmed to consistently have no more than 0.3% THC in them.

Health Canada has done a lot of work since the industrial hemp regulations have come forward and has those definitions readily at hand.

Hemp has been proven to be safe. In 19 years of cultivation, there have been no reported public safety risks associated with hemp cultivation and transportation, and there have been no recorded incidents of criminal activity associated with the hemp industry. At the time the hemp regulations were first put in place, there was a lot of learning to be done, but 19 years have given us a pretty good track record for proven safety.

Our farm produces hemp specifically for the food market. We grow a hemp plant to harvest the grain at the top of the plant. We're currently prohibited from harvesting the leaves or the buds of the hemp plant as part of the industrial hemp regulations. We can harvest the straw for fibre, but as yet a fibre industry hasn't developed in Canada.

In Canada, the Canadian industry is known as the global leader in the food use of hemp. Canada is known for having the biggest hemp industry supporting safe food use of hemp. In 2016, Canadian industry exported $145 million of hemp food products to other countries around the world. Today you can walk into most grocery stores in Canada and get a bag of hemp hearts. Again, de-hulled hemp and hemp hearts have a fantastic nutritional profile, known both for the high omega-3s in the oil profile, as well as a very appealing plant protein profile. Hemp is becoming a very popular food product.

The potential of the hemp industry is strong as well. We've grown to 100,000 acres of production. The Canadian Hemp Trade Alliance forecasts that with some modernization of regulation associated with hemp, we can grow the industry to over a billion dollar industry within the next seven years. We've barely started working on the feed market, the fibre market, and the natural health products market. There is great opportunity for the hemp industry going forward. In December, the federal cannabis task force recommended a relaxed regulatory regime for hemp in their report. We're appreciative of that recommendation.

In terms of our specific proposal, we're looking to see hemp exempted from Bill C-45, by including it in schedule 2 under exemptions. I'll provide the specific definition, which again draws on the Health Canada definition of hemp. We'd ask that hemp and hemp plant parts, including the whole hemp plant, be exempted under item 5, under schedule 2 exemptions, with hemp to be defined as “cannabis plants grown from certified seed of Health Canada's list of approved cultivars”. Those are the cultivars that are confirmed to regularly produce an absolute maximum 0.3% THC.

There's tremendous interest in CBD as another health constituent or health component. The Europeans are working extremely aggressively on this, and the FDA has an open comment period seeking input on CBD. When you breed THC out of hemp, you naturally get more CBD, which is why hemp is looked at as a very good source for CBD. The medical industry is looking at a number of uses for CBD and potential medical benefits arising from CBD. Whole plant use of hemp would enable the access of a number of people—Canadian patients and others around the world—to a very low-cost source for CBD itself. We think that's a real benefit that can come from the hemp industry as well.

Thank you very much for your attention. Robert and I will be very pleased to answer any questions that we can going forward.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

I would like to talk about a national e-commerce platform.

Like Mr. McKinnon, I did a lot of vicarious research this summer and this is what I discovered, from what I can remember. I'm teasing.

The illicit market is ubiquitous. It's coast to coast. There are a variety of products, imported and domestic. There are distributors, dealers, everywhere, who are trusted. Their prices are acceptable to the marketplace. The marketplace is sophisticated.

I'm told there are at least 12 websites that are making illicit cannabis available. There are home-delivery mechanisms. The C.D. Howe Institute has stated that the licit market must be able to compete with the illicit market for this whole scheme to work, and that it isn't just about price; it's about convenience, about choice.

I'm told, though, that there is nothing in Bill C-45 about a national e-commerce delivery platform. One of the major medicinal cannabis producers in the country told me bluntly that in the recreational regime, if we don't have a permanent robust e-commerce platform, the bill is not going to work.

I noticed in the task force report, it says:

Consideration should also be given to ensuring that online retail sales have appropriate consumer safeguards.

To accommodate those who may not have access to storefronts (e.g., small communities, rural and remote locations, mobility-challenged individuals) a direct-to-consumer mail-order system for non-medical cannabis should be considered.

My sense is that in order for a producer in Ontario to be able to mail product to B.C., it would have to be federally regulated under at least three heads of federal competence. It's a scheduled product, interprovincial commerce, and it's the mail, yet Bill C-45 doesn't explicitly address that.

Ms. McLellan, I'm wondering whether you have any recommendations about where we might want to look to improve the bill in that area.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

All right.

Ms. McLellan, I have one other thing.

In addition to trying to make sure we keep cannabis out of the hands of children and control public safety, to get people ultimately not consuming cannabis, because we've seen that there's harm, there should be some sort of prevention. What do you think about the prevention part of Bill C-45?

[John Oliver, Liberal, Oakville, ON]

Thank you.

As I came into the questioning later, a lot of my questions had been asked already. I am going to focus on the pharmacy presentation for a bit here.

I was a little bit confused. We're dealing here with recreational marijuana in Bill C-45, but you were making a strong case for pharmacists to continue to sell cannabis under medical prescriptions.

Pharmacies stopped selling cigarettes a long time ago because of the negative health consequences of them. Are you feeling a conflict at all with your association trying to sell medical marijuana, which is primarily going to be smoked?

[Don Davies, NDP, Vancouver Kingsway, BC]

As you pointed out, it has been mentioned time and time again that one of the prime focuses of the bill is to take the production of cannabis away from the illicit market, the black market, the organized, criminally controlled market, and move it into the regulated world.

Clearly, the government hasn't taken that advice at this point. I want to point to what the task force said about Alaska:

The Government may want to consider the approach taken by the Alaskan government, which prohibits the manufacture and sale of any cannabis product that “closely resembles a familiar food or drink item including candy,” or is “adulterated” with additives or sweeteners. We are confident that with clear guidance to industry by the regulator and vigilant and predictable enforcement this is not an insurmountable barrier.

It has taken two years for the legislation to come before Parliament. We have the example of the Alaskan government. There are other jurisdictions that have proceeded with edibles.

Are you concerned that by passing Bill C-45 without having a regulated environment for edibles that we will continue to leave a large, and as you say, growing segment of cannabis to the black market, unregulated from a health point of view or a legal point of view?

[Anne McLellan]

The legislation has similarities with tobacco regulation. Keep in mind that my colleague Mark Ware and I are here to talk about the task force report and explain why we made the recommendations we did. Government chose in C-45 and C-46 to accept some but not all of our recommendations.

In respect of tobacco regulation, we looked at tobacco regulatory provisions, especially around marketing, advertising, branding, and sponsorship. We felt that the approach taken was a reasonably good one for the promotion of public health, especially as it relates to young people, but not exclusively to young people. Therefore, what you see reflected in the legislation is a desire not to be in the business of permitting promotion or lifestyle advertising in relation to cannabis when it's legalized. In that respect, it's quite similar to the tobacco regulatory regime that you see presently at the federal level.

In relation to alcohol, I think it's fair to say that a lot of the regulatory regime you see around alcohol, whether it is in relation to public education or prevention, outside the driving milieu, is largely within provincial jurisdiction.

[Shelita Dattani, Director, Practice Development and Knowledge Translation, Canadian Pharmacists Association]

Good morning, everyone. I thank you for the opportunity to be here today.

My name is Shelita Dattani. I'm a practising pharmacist and I'm the director of practice development and knowledge translation at the Canadian Pharmacists Association. I'm here today on behalf of Canada's 42,000 pharmacists, who are medication experts and whose job it is to ensure that drug therapy is safe and appropriate for our patients.

Every day, pharmacists act as medication stewards on behalf of Canadians. We make sure that each patient's medication and dosage are right for them. We check for and resolve potential drug-related problems, and we work with patients to ensure that they understand their drug therapy. We also address side effects and interactions, and we monitor our patients' progress throughout their therapy.

We've seen more and more patients using medical cannabis over the last decade or so, and pharmacists have become increasingly concerned about the health and safety of these patients, especially those who are using cannabis in combination with or instead of other traditional medications, often without the oversight of a pharmacist. Our concern for patients in the medical cannabis stream further increases as we move towards legalization of recreational cannabis.

We recognize that Bill C-45 focuses mostly on legalizing cannabis for recreational purposes, but it's important that the government understand how the proposed legislation could impact patients relying on medical cannabis as part of their treatment plan for pain, epilepsy, MS, and other conditions.

We want to focus our concern around three areas: the separation of medical and recreational cannabis, the role of pharmacists in medical cannabis, and the use of medical terms such as “dispensary” in recreational sales.

As of March 2017, Health Canada reported over 201,000 patients registered to obtain medical cannabis through licensed producers or personal production. These patients have unique needs that differ from those of recreational cannabis users. Medical users might need strains and forms to alleviate symptoms and minimize intoxication, such as those available through cannabidiol or CBD, whereas recreational users might be seeking euphoric effects and strains with higher THC levels. Medical cannabis users also require the clinical oversight that comes with any medication therapy.

Other jurisdictions, such as Colorado and Washington State, have moved to legalization of cannabis. They have maintained different streams by restricting product strains and forms, establishing distinct access channels for medical cannabis and treating the medical stream as unique.

We are pleased that the Canadian government has signalled its intent to follow these best practices by maintaining two distinct streams once recreational cannabis is legalized in 2018, but we are concerned that current shortcomings in the medical regime could be exacerbated with the move to legalized cannabis if there aren't policies and practices in place to clearly differentiate between medical and recreational streams.

One clear example of this is around costs. If the cost of recreational cannabis is more attractive than that of medical cannabis, or if access is less restricted, patients may choose to go that route and they will be left without medical oversight, which could increase health complications for high-risk patients. The safety of our patients is paramount, and we need to ensure that medical cannabis users are supported and protected through a medical stream once recreational cannabis is legal.

Another consideration is the securing of medical cannabis strains from the recreational market to ensure enough supply of unique medical strains to meet patient needs. Medical cannabis users are often vulnerable patients who may have tried multiple other therapies before turning to cannabis or found only one unique strain of cannabis that provides them with relief. The medical cannabis strains must be protected from the recreational market in order to safeguard against shortages of these particular strains for those patients who use medical cannabis, as other colleagues have said, out of necessity versus choice.

Finally, there are more systemic benefits to maintaining a separate medical stream. Separating the medical cannabis stream would facilitate more clinical research and understanding of this complex drug, and doing so would create a more robust evidence base around the therapeutic benefits and risks for health care providers to inform them in the management of patient care and in the further development of guidelines.

In order to reduce harm, particularly for those who use cannabis for medical purposes, government must take steps to clearly differentiate the two markets before July 2018. A logical first step would be to ensure pharmacists' clinical oversight in dispensing of medical cannabis in Canada.

Across Canada, pharmacists just like me are regularly asked by our patients about the use of cannabis for a variety of different conditions, but as the medication experts on a patient's health care team, we don't currently have a role in dispensing medical cannabis. Health Canada attests to the complexity of cannabis and its potential interactions with other more traditional medications. Given these risks, we believe it's essential that patients have as much support as possible from qualified health care providers to strengthen patient safety and health-system accountability.

As the system works now, patients consult with their physician who may issue a document for medical cannabis. Supply is then managed through mail-order distributors or patient-grown cannabis. None of these options include consultations with medication experts at the point of dispensing to ensure that patients understand why they have been prescribed the medication, the best route and dose of administration for the patient, and potential side effects.

Also, as I've said before, for many patients medical cannabis is a third-line or fourth-line treatment, and these patients are often on a number of other medications. For example, veterans using cannabis to control post-traumatic stress disorder symptoms or patients with mental health conditions are also likely to be on a number of other medications, including psychoactive, anti-anxiety, and hypnotic medications. The potential for drug interactions in these patients is considerable, and the need for pharmacists' oversight becomes even more important.

With over 10,000 community pharmacies in rural, urban, and remote locations across this country, pharmacists are patient-centred practitioners who are well positioned to dispense medical cannabis and provide the required clinical oversight. Canadians think of us and their relationship with their local pharmacist when they consider where they will get their medication and who will counsel them and guide them on their medication therapy.

Pharmacists work with controlled substances every day. They have the framework and ability to ensure the safety, security, and tracking of the products that we dispense every day. We regularly use our clinical expertise to detect possible drug-therapy problems, and we're able to mitigate the potential risks associated with medical cannabis, including contraindications in patients with a psychotic illness, for example, or in pregnant patients. Further, we're often able to identify potential addictive behaviour which could lead to misuse or abuse. We should learn from our experience with opioids and the significant potential for addiction to psychoactive medications. We shouldn't make the same mistake by underestimating the need for clinical oversight with medical cannabis and all of its unique complexities.

While CPhA doesn't endorse any specific production or supply system for recreational cannabis other than a regulated process with health promotion as a priority, we believe that for medical cannabis it's essential that patients have as much support as possible from qualified health care providers. Patient safety should be the primary consideration. For this reason, we urge policy-makers to include and support pharmacists in dispensing medical cannabis and ensuring safe and effective use by patients in the medical cannabis strain.

Finally, in line with our call for separate streams for medical and recreational cannabis and the need for pharmacist oversight in the medical stream, our position is that recreational suppliers and retailers of cannabis be prohibited from using pharmacy-related terms such as “dispensary” or symbols such as the green cross.

Since the government announced its intention to legalize cannabis, we have seen a proliferation of so-called dispensaries across the country that claim to sell medical cannabis. As medical cannabis is legal in Canada under certain conditions, many Canadians are unaware that these are in fact illegal operations. The use of the term “dispensary” along with pharmacy symbols further compounds this misconception. We would urge the government to restrict the use of the word “dispensary”, and pharmacy terms and symbols for non-medical cannabis retail sites. These promote the notion that recreational cannabis has health benefits or is a medication, that the retail site is a pharmacy, or that the site has professional oversight from pharmacists. This regulation is particularly important to ensuring public safety and to further distinguishing between the recreational and medical cannabis streams.

Thank you again for the opportunity to represent Canadian pharmacists today. Pharmacists are committed to ensuring that our patients have access to appropriate medication therapy and that their therapy is both safe and effective.

As we move forward with the legalization of recreational cannabis, we're asking the committee to endorse the clear differentiation between the recreational and the medical cannabis streams, to recommend restrictions on the use of pharmacy-related symbols in the recreational stream, and to help strengthen clinical oversight of the medical stream by supporting pharmacists in dispensing and managing medical cannabis in the care of their patients.

Thank you. I'd be pleased to take your questions.

[David Johnston, President and Chief Executive Officer, Canadian Association for Pharmacy Distribution Management]

Thank you very much.

My name is David Johnston. I am president and CEO of CAPDM, which is the Canadian Association for Pharmacy Distribution Management.

CAPDM represents Canada's pharmacy supply chain, and counts within its membership, pharmaceutical distributors, self-distributing pharmacy chains, and prescription and non-prescription drug manufacturers. CAPDM was founded in 1964, and several of our distributor members have safely and comprehensively been distributing pharmaceutical products in Canada for over 100 years.

I would like to begin with a statement: distribution is not retail.

Effective coordinated wholesale distribution will be an essential element to the successful and safe legalization of cannabis. I'm also going to suggest that distribution has not yet been appropriately addressed by the federal or provincial governments in the current planning activities.

Let me start by providing some background information on the pharmaceutical industry.

Greater than 95% of pharmaceutical products pass through a pharmaceutical distributor. It is the system of choice for governments and industry in Canada for the distribution of pharmaceuticals. As a result, products ranging from over-the-counter headache medications to the most potent controlled substances are delivered to over 9,000 community pharmacies and 900 hospitals every day.

An order placed one day is on the shelf the next day regardless of the pharmacy's location. From a distribution point of view, the cost is the same regardless of destination. Consequently, in Canada there is no disadvantage, no difference, from a distribution point of view if you access your medicines from a small pharmacy in a rural town or a large chain in a downtown urban environment. This safe, secure, and efficient system is a global gold standard, and compares very favourably to other countries and jurisdictions.

Pharmaceutical distributors are also a buffer against drug shortages, helping to smooth out supply and demand between pharmacies and manufacturers by holding several weeks of inventory in their facilities, and working with manufacturers and governments to closely manage supply during times of constrained product availability. The industry is highly regulated through Health Canada, with multiple licences, and our members are subject to strict auditing and reporting requirements.

For a last point in this overview, pharmaceutical distributors support a two-way system; not only do they distribute but they also track the products, and have protocols in place that allow recalled products to be out of the market and back to the distributor within 36 hours.

Back to that opening statement that distribution is not retail, distribution is the movement of product between a producer and the access point, between, in this case, the licenced producer and whatever that public access point will be within the various provinces. Effective distribution is essential to the successful legalization of cannabis.

Discussions to date have been focused on production, and where legalized cannabis will be sold. In fact, in the 52 times the words “distribute” and “distributing” appear in Bill C-45, with little exception, they refer to selling and retailing, not the specific activities of distribution. The word “distributor” does not appear in Bill C-45.

With this background, I would suggest that distribution needs to be an active discussion point, and the pharmaceutical distributors are the natural partners for the distribution of both medical and recreational cannabis. By leveraging this proven and highly successful system, regardless of the final retail point, whether it be a government-controlled retail outlet or a licenced private retailer, Canada will avoid the pending hazards that are looming by not addressing distribution, which have been dramatically and negatively experienced in other jurisdictions. For example, just recently in Nevada's legalization experience, retailers ran out of inventory in the first two weeks after launch because a buffer was not provided by a wholesale distribution system.

With fewer than 10 months until cannabis legalization, this is a crucial moment for the federal, provincial, and territorial governments as they wrestle with many complex issues. The provinces are deeply concerned by the short and, some may say, unrealistic time they face in preparing for legalized cannabis.

From experience, we understand what the provinces face. There are daunting complexities and enormous investments associated with establishing a new regime that incorporates best practices for a highly regulated, secure, and cost-competitive supply chain, is mandated to safeguard public health and safety, and which by its competitiveness will reduce the prevalence of black market cannabis.

The final report from the federal task force stated that a well-functioning distribution system, where the chain of custody is well-controlled, is critical to the overall success of the new regime. We couldn't agree more.

Today, the direction is to have the responsibility of cannabis distribution in the hands of the provinces and the territories. With the regulatory demands we experience every day in our Canadian pharmaceutical supply chain, we cannot imagine a functional and cost-competitive cannabis distribution environment that is built upon a patchwork of varying provincial models and regulations trying to incorporate the federal mandate for tracking, reporting, and recall measures.

Why reinvent a system in each province and territory when a proven one already exists? This is a proven system that is well established and requires minimum government investment, a proven system that already fulfills all of the requirements defined by the federal government and has an existing oversight and audit system, and a proven system that is cost effective, therefore allowing the legal market to out-compete the black market on price.

The adoption of a ready-made cannabis distribution model will deliver a turnkey solution that is ready to go and that relieves significant system stress, as the pharmaceutical wholesalers already have secure infrastructure, processes in place for safeguarding cannabis from diversion, and efficient, low-cost distribution services, keeping cost structures competitive to thwart black market cannabis. This is a channel-agnostic distribution model that will service a wide range of retailers, whether they be government-controlled retail outlets or other channels, a model that is already vigorously regulated via national standards and inspected regularly by Health Canada. Provisions for shipment data on a timely basis, providing government full transparency of product movement and next-day delivery capacities mean that retailers could maintain low inventories, thereby minimizing losses from theft and diversion and a quick and efficient execution of product recalls.

CAPDM and its members recommend, first, that distribution be recognized as essential to the success of legalized cannabis and that effective distribution become a key deliberation point for both federal and provincial governments. Second, we recommend that a national perspective for cannabis distribution be established to avoid an inefficient and potentially dangerous conflicting patchwork of distribution systems, and third, that the safe, secure, efficient, cost-effective, and comprehensive distribution network of the pharmaceutical distribution industry be evaluated as a turnkey option for a national system.

Finally, to return to my opening line that distribution is not retail, for the legalization of cannabis to be successful, strong production, distribution, and retail models are all essential. There are thousands of decisions to be made in the legalization of cannabis. For the essential element of distribution, the pharmaceutical distributors have a turnkey and proven solution to the safe, secure, comprehensive, and cost-efficient distribution of cannabis.

Thank you very much. I would be happy to answer any questions.

[Michael Spratt, Criminal Lawyer, Abergel Goldstein and Partners, As an Individual]

Thank you. It's an honour and a privilege to have been invited to make submissions before this committee. My name is Michael Spratt. I'm a criminal defence lawyer. I'll leave it at that in terms of an introduction of myself. I have a more verbose introduction in my written submission, which should be translated and distributed to all of you shortly.

On February 21, 2010, while a young man named Michael Swan was watching Canada's gold medal hockey team play the United States, three young men from Toronto were driving down a dark highway toward Ottawa. The Toronto three, as they would come to be known, had a plan to make some easy money. They were going to steal Mr. Swan's marijuana. Swan was murdered later that night, killed by a single bullet that pierced his lung and tore apart his heart.

There was nothing particularly unique about Mr. Swan. He was a typical teenager. He came from a good family. He had a tight circle of friends and, like almost half of Canadians have done, he smoked marijuana. He also sold it, mostly to his friends, but rumours of his large pot supply had reached Toronto.

I represented one of the Toronto three. Like Swan, he was 19 years old. He had no prior criminal record. Now, he didn't shoot Swan but he was there when Swan was shot and he was convicted of second degree murder and now he's serving a life sentence.

Some cases stick with you. That's an occupational hazard of being a criminal defence lawyer. Often we remember cases because of the result, the unexpected victory or the wrongful conviction. I remember the Swan case because it was tragic. A young man was killed. Three young men were sentenced to life in jail, and a family was destroyed. Sadly, this kind of tragic story is not an isolated incident. The simple fact is that criminalization of marijuana kills.

But that's not all it does. The criminalization of marijuana is a drain on court resources. It diverts law enforcement resources away from truly harmful activities. The prosecution of marijuana offences unduly stigmatizes otherwise law-abiding citizens through the imposition of criminal records. The criminalization of marijuana disproportionately impacts individuals who are young, marginalized, members of over-policed communities, or racialized. In our drug laws there are, indeed, echoes of racism and bias. The government should be commended for taking a tentative first step toward a rational and effective drug policy.

There is promise in Bill C-45, but there are also some serious flaws and room for improvement.

Bill C-45 contains no measures, for example, to address the tens of thousands of Canadians who have been stigmatized through the war on drugs counterproductive imposition of criminal records. The Criminal Records Act was first introduced in 1970 to augment the discretionary royal prerogative of mercy. The act detailed the manner in which persons convicted of criminal offences could apply for forgiveness for past wrongdoings. With the enactment of the Canadian Human Rights Act in 1985, offences for which people were pardoned could no longer be used as a discriminating factor by employers. Similar human rights legislation has been enacted provincially.

It is in the public interest to have a robust system of pardons. It is in the interest of society to reintegrate people back into society after they have committed a criminal offence. The logic is that even a partial removal of stigma of the conviction will aid in reintegration. It is well documented that the continued stigmatization of an offender is ineffective in reducing recidivism and reoffending. Those who have criminal records are less likely to be able to obtain employment, housing, cross international borders, and less able to fully engage in educational opportunities. Bill C-45 does not offer any measure whatsoever, such as an automatic, expedited, or subsidized pardon, to individuals who are convicted of activities that will now be legal under Bill C-45.

Nor does Bill C-45 take the opportunity to amend the currently unconstitutional sections of the Criminal Records Act that retroactively increased pardon ineligibility periods. These retroactive amendments were found to be unconstitutional and in violation of the Canadian Charter of Rights and Freedoms by courts in Ontario and British Columbia. I was counsel in the case in Ontario. Both courts declared those amendments, the retroactive increase in pardon eligibility periods, to be of no force and effect. However, that unconstitutional pardon provision remains in force throughout most of Canada. As a result, if you don't live in Ontario or B.C., you're subject to an unconstitutional law.

Bill C-45 should amend the Criminal Records Act to remove the unconstitutional retrospective application of the pardon ineligibility period. It should restore pre-amendment waiting periods, and a further reduction in the waiting period should be available for individuals convicted of marijuana offences, offences that would now be legal under Bill C-45. Currently, 18-year-old, first-time offenders who are convicted of simple possession of marijuana the day before Bill C-45 comes into force will be required to wait five years before they're even eligible to apply for a pardon. Bill C-45 must remedy this situation.

Bill C-45 is also an unnecessarily complex piece of legislation that leaves intact the criminalization of marijuana in too many circumstances. An adult who possesses 30 grams of marijuana in public is a criminal. A youth who possesses more than five grams of marijuana is a criminal. An 18-year-old who passes a joint to their 17-year-old friend is a criminal. An adult who grows five marijuana plants is a criminal. An adult who lets his one-metre tall marijuana plant grow an extra centimetre is a criminal.

This continued criminalization is inconsistent with a rational and evidence-based criminal justice policy and will only serve to reduce some of the positive impacts of the bill. The disproportionate effect of continued youth criminalization is anathema to criminal justice policy. Nowhere else in the Criminal Code is a youth criminalized for an act that would be legal if committed by an adult.

A century of failed drug policy has demonstrated that criminalization is a flawed and ineffective mechanism to discourage drug possession. Simply put, there is no reason to believe that making it a criminal offence for a youth to possess five grams of marijuana will deter youth from possessing marijuana any more so than the current criminalization does. The distinction between illicit and legal marijuana and the asymmetrical criminalization of marijuana will only serve to perpetuate the disproportionate enforcement of laws on the young, marginalized, and racialized members of our society.

Even under the new law, marijuana will still be criminal in many circumstances. Only now, the government's vice squad will need to carry rulers and will need to learn to divine the difference between identical legal and illicit forms of marijuana.

Bill C-45 also creates a statutory mechanism for police officers to exercise their discretion to issue tickets in the place of criminal charges for certain offences. This is well meaning but problematic, given what we know about the exercise of police discretion. Remember, police discretion currently operates disproportionally against a variety of marginalized groups. The ticketing option relies on discretionary police action. The choice of whether to lay a criminal charge is also discretionary and the results have been manifest in much of the discriminatory impacts of the current law. There's no reason to believe that's going to change under this ticketing option. The discriminatory impacts of police discretion should be eliminated through full legalization and strict regulation.

To its credit, Bill C-45 does attempt to reduce the prejudicial impacts of this ticketing option and there are provisions designed to prevent the public disclosure of judicial records, but that is dependent on the offender's ability to pay a fine. If a ticket remains unpaid 30 days after a conviction is registered, there is no corresponding right to privacy in a judicial record. I think the problem is obvious. In other words, if you are poor and can't pay a fine, you are further stigmatized through a public record. If you are well off and can pay the fine, your record is sealed. That judicial record is non-disclosable.

Given the research on the impacts of the disclosure of judicial records, the inability of the poor to purchase privacy rights, and the disproportionate enforcement of marijuana offences experienced by marginalized groups, it's quite likely that this ticketing provision in Bill C-45 will be found to violate the Canadian Charter of Rights and Freedoms.

Canadian drug policy and legislation is in need of reform. The war on drugs has been a complete and abject failure. The social and financial cost of criminalization outweighs any illusory benefit. Every year, scores of young men and women are killed over relatively small amounts of marijuana, killed because marijuana is illegal. Bill C-45 may limit but it does not end this problem.

Continued criminalization imposes unreasonable penalties on a relatively low-risk activity. In the real world, a drug record means limited employment, limited opportunities to travel, and other devastating collateral consequences. Only full legalization, decriminalization, and regulation of marijuana will truly protect society and remove the unfairness, racism, and over-intrusion by the state into an activity that in the context of existing criminal law is relatively harmless.

I would be happy to answer any questions this committee may have.

[The Chair, Liberal, Bill Casey]

We will reconvene our study on Bill C-45. We have a panel of federal, provincial, and territorial representatives as well as some representatives from the pharmaceutical industry. We certainly want to welcome everybody. We welcome the Honourable Anne McLellan, senior adviser for Bennett Jones, as an individual; Michael Spratt, criminal lawyer; Mark Ware, associate professor, department of family medicine, McGill University; from the Canadian Association for Pharmacy Distribution Management, Mr. David Johnston, president and chief executive officer; and from the Canadian Pharmacists Association, Dr. Shelita Dattani, director, practice development and knowledge translation.

My understanding is that the Honourable Anne McLellan and Mr. Ware are going to split their time.

You have 10 minutes between you, and you can fight out how you want to divide it.

[Diane Labelle]

Bill C-45 proposes that adult individuals be able to cultivate up to four plants in their dwelling house. That could be indoor or outdoor cultivation, as we've heard, and it has to be where they ordinarily reside, so this becomes a question of fact. If they ordinarily reside at their cottage for seven months of the year, that may be where their dwelling place is. If it's in downtown Ottawa that they normally reside for seven months of the year, then that would be their ordinary residence.

[Carole Morency]

As you have noted, the bill proposes a range of penalties for the offences. The offence you're referring to in terms of selling is currently under the Controlled Drugs and Substance Act. It's a trafficking offence, and it carries a maximum of life imprisonment. It imposes mandatory minimal penalties.

Under Bill C-45, the offence of distribution or selling would be a hybrid offence, meaning that the crown would have the right to elect to proceed summarily for less serious offences, and to proceed on indictment for more serious offences.

On indictment, the premise is correct that it would be a maximum of 14 years. However, on summary conviction, for an adult who sells to a young person, the maximum penalty would be 18 months, whereas for an adult who sells to an adult, the maximum penalty would be six months.

What Bill C-45 does is provide greater flexibility to the criminal justice system, including the crown and the courts, in terms of sentencing, to proceed in a manner that best reflects the seriousness of the offence. It provides the courts with more flexibility at sentencing to deal with a range of possibilities, instead of an indictable-only offence with a maximum of life imprisonment.

[Carole Morency]

The age you're referring to is for the purpose of charging a young person with a cannabis-related offence. Bill C-45 clearly prohibits any adult organization from providing, selling, or distributing cannabis in any form to any young person.

[Carole Morency]

Bill C-45 prohibits distributing, providing, or selling cannabis to any young person under the age of 18. A young person between the ages of 12 and 17 would not be criminalized for possessing five grams or less. They could also share it, without being criminalized, with another youth the same age. The age of criminal responsibility is 12 to below 18 under the Youth Criminal Justice Act , so any adult who gives it to any young person is criminalized, but a youth is dealt with differently.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thanks.

To the RCMP, has the government given any direction to the RCMP to perhaps exercise discretion against charging Canadians, particularly young Canadians, until Bill C-45 has passed? Have you received any directions about that?