Evidence of meeting #41 for Health in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Kirsten Mattison  Director, Controlled Substances Directorate, Healthy Environments and Consumer Safety Branch, Department of Health
Miriam Brouillet  Legal Counsel, Health Canada Legal Services, Department of Health

11:10 a.m.

Conservative

Rachael Thomas Conservative Lethbridge, AB

Yes.

11:10 a.m.

Liberal

The Chair Liberal Bill Casey

Thank you very much.

We're going to skip the preamble. We're going to go right to the clauses.

I have no amendments for clauses 1 through 41.

(Clauses 1 to 41 inclusive agreed to sequentially)

(On clause 42)

We're going to go to clause 42.

The first amendment is PV-1. It is Ms. May's motion to amend.

Go ahead, Ms. May.

February 9th, 2017 / 11:10 a.m.

Green

Elizabeth May Green Saanich—Gulf Islands, BC

Thank you, Mr. Chair.

I appreciate all members of the committee asking me here, but I do like to place on the record every time that this is not an opportunity I actually welcome. I regard it as coercive and I much prefer the rights that I have under our normal procedures to be able to make amendments at report stage, as opposed to operating under the motions that were passed first under the previous government, and now again in every committee.

That said, I want to say how critical this piece of legislation is. My amendment is inspired by some testimony that the committee has heard and is very similar to some of the others that are before you today.

I want to pause for a moment and just share with committee members that one of my constituents, Leslie McBain, is a founder of Moms Stop the Harm. We know that this legislation is critical to help avoid deaths such as the tragic loss of her son.

The substance of my amendment deals with the criteria currently found in the bill at page 44. The overriding section is proposed subsection 56.1(2) under clause 42. This is certainly a big improvement in Bill C-37 over the current legislation, which had conditions (a) to (z), and then even (z.1). I opposed those when they went through the House the first time. They were extremely onerous and were clearly designed to stop harm reduction facilities from being opened in communities.

However, as the brief from Pivot points out, the conditions and criteria that are required under the current Bill C-37 are still onerous. I'll quote from their testimony to the committee:

Streamlining the criteria will decrease delay and improve access to life-saving facilities for communities in need. Most importantly, it would remove the onus currently placed on minimally-resourced applicants that are, especially at this time, over-burdened and channelling all available resources into emergency measures to save lives.

The amendment you find from the Parti vert, amendment PV-1, is based on the Pivot advice. It compresses the criteria existing now in proposed paragraphs 56.1(2)(a) to (e) and simplifies them to this one:

shall include information related to the local conditions indicating a need for the site, submitted in the form and manner determined by the Minister.

Then in proposed subsection 56.1(2.1), it would read:

The Minister may require that an application for exemption under subsection (1) include information related to the regulatory structure in place....

It's a common sense measure to reduce the burdens and the hurdles in getting these life-saving facilities up and running.

Thank you, Mr. Chair.

Happy birthday to Mr. Oliver. I very much enjoy his comedy show. I just don't know why he doesn't look the same here as he does on TV, but that's okay.

11:15 a.m.

Liberal

The Chair Liberal Bill Casey

There you go.

Are there any other comments on the amendment? All right.

I have to say that if this amendment is adopted, amendments NDP-1 and NDP-2 cannot be moved. They are negated.

All those in favour of the amendment?

Go ahead, Mr. Davies.

11:15 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

The legislative clerk was talking to me for most of what Ms. May said, so I apologize.

Can you ask Ms. May to explain briefly what she has just proposed to do?

11:15 a.m.

Green

Elizabeth May Green Saanich—Gulf Islands, BC

To make it very simple for Mr. Davies—and I understand you had other business you had to do—my amendment is remarkably similar to yours, but uses different language. It does the same as your amendment NDP-1. It compresses those criteria. The consideration section is differently worded but is remarkably similar. If mine were to pass, essentially you would be happy because it would be to the same purpose as yours.

11:15 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Ms. May, I think you've submitted two amendments.

11:15 a.m.

Green

Elizabeth May Green Saanich—Gulf Islands, BC

Yes. I'm on the first, which would make changes to page 44 of the bill.

11:15 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Right. My concern and what I will speak to, if I hear the chair correctly, is that you're saying that if we adopt this amendment, the other two would be moot.

11:15 a.m.

Liberal

The Chair Liberal Bill Casey

Yours can't be moved.

11:15 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

They can be moved?

11:15 a.m.

Liberal

The Chair Liberal Bill Casey

They can't be carried.

11:15 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

All right.

I agree with Ms. May that her amendments and two others that I have moved speak to the criteria that an applicant would have to show and information or evidence, as the case may be, that would have to be furnished to the minister. These are the criteria that the minister would have to take into account in determining whether to grant a section 56 exemption.

All three of the amendments speak to that, but in different ways. They're alternative approaches. The amendment that Ms. May has proposed, which is very similar to one of my proposals, actually changes the criteria that are currently in the bill. There are six criteria in the bill right now, which emanate from the Supreme Court decision in the Insite case. This particular clause would truncate that and eliminate some of those considerations.

I'm in favour of this in the sense that from a public health point of view, we want to make this process as streamlined, effective, and efficient as possible for an applicant. The end goal, in my view, is to get supervised consumption sites up and running as fast as possible to save lives.

However, I do want to make clear that there are two different approaches to doing so. I have submitted two different approaches for my colleagues' consideration. One is this one, which I guess is the most efficient proposal you could have for an applicant. My other proposal is one that, personally, I favour. It retains the six criteria and simply reorders them in terms of what the applicant and the minister do and where the burden of proof is.

I guess what I'm saying is that I support them both, but if this one doesn't pass, I certainly hope that my colleagues will take a look at the other proposal, which maintains the six criteria.

11:20 a.m.

Liberal

The Chair Liberal Bill Casey

All right. Are there any other comments?

Go ahead, Mr. Kang.

11:20 a.m.

Liberal

Darshan Singh Kang Liberal Calgary Skyview, AB

My concern is that this clause removes two of the Supreme Court's five factors from the application process. The five factors were equal in the Supreme Court decision, and it would be difficult to defend the inclusion of some but not all of those factors.

Removing some of the criteria would potentially result in the minister not receiving all of the information that would be relevant to making the decision and balancing public health and public safety in accordance with the charter. We cannot remove some of the factors from the Supreme Court decision. That's my concern.

11:20 a.m.

Liberal

The Chair Liberal Bill Casey

Is there any other discussion?

All right. We have Ms. May's motion on the floor. Does Ms. May's motion carry?

11:20 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

I'm sorry, are you asking who is in favour of the...?

11:20 a.m.

Liberal

The Chair Liberal Bill Casey

In favour of amendment PV-1, please indicate.

(Amendment negatived)

All right. Now we go to amendment NDP-1.

Go ahead, Mr. Davies.

11:20 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Chairman, in light of the vote, I'll withdraw that amendment because, as Ms. May has pointed out, it's almost identical.

11:20 a.m.

Liberal

The Chair Liberal Bill Casey

It's almost identical. All right.

Then we move to NDP-2.

Is there any discussion?

Go ahead, Mr. Davies.

11:20 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Thank you, Mr. Chair.

I've submitted two amendments, with two versions of each. There are a few late ones that I might remove from the floor. This is the one I feel the most passionate about and that I strenuously ask my colleagues to give serious consideration to, because I think it makes the bill better, stronger, and more clear.

I'll read the original section of the bill. It says:

An application for an exemption under subsection (1) shall include evidence

—note the word “evidence”—

submitted in a form and manner determined by the Minister, of the intended public health benefits of the site and information, if any, related to

Then it mentions the following five criteria: the impact of the site on crime rates, the local conditions indicating a need for the site, the regulatory structure, the resources available to support it, and expressions of community support.

All I've done in my amendment is reorder these items. The first thing, from a point of view of principle, is that we want to make sure that the burden on the applicant is commensurate with the applicant's abilities. We put on the applicant the burden of showing information that they need, and you allow the minister to take into account the information that she needs to take into account.

The problem with this is that the burden is entirely on the applicant. That's number one.

Second, the very first thing it says is that the application shall include evidence of the intended public health benefits. I don't think it's possible to furnish evidence of intended benefits. By definition, intended benefits are speculative. You could supply information about that, but you can't supply evidence of something that is yet to happen, so that's a structural problem.

Then it goes on to say “and information”—and we're still talking about what the application has to include—on a number of factors. Why is the burden on an applicant to supply information on the impact of the site on crime rates? That is definitely something the government minister should take into account, but this is one of the problems that applicants under the current system have complained about. The reason it takes so long and is so difficult to put the application in is that they have to furnish evidence of the impact on crime rates.

If you look at some of the community groups that want to open these sites, you'll see they don't have the administrative or financial expertise to go out and gather sociological evidence on the impact on crime rates, although I think the minister should definitely be.... She should get the Minister of Justice and other departments, such as Public Safety, to furnish that evidence.

With the way it is now, some might say that paragraphs (a) to (e) under proposed subsection 56.1(2) are qualified with the words “if any”.

Here's the problem. If I'm an applicant and I'm putting an application in and I read this section, I'd say okay, I have to put in evidence of the intended public health benefits and information, if any, on a bunch of things. Now, I don't know; do I have to do that? If I don't do that, will my application be weaker? I know the evidence exists; if I don't put it in, will my application look incomplete? It actually continues to confuse.

My amendment simply reorders it. It says that an application for exemption under subsection 1 “shall include information”—so I've changed that first word “evidence” to “information”—“submitted in the form and manner determined by the Minister, related to”, and then I've given three things that the applicant has to give to the minister.

The first is the same one that's there now, the intended public health benefits of the site. I think an applicant should have to furnish information on that. The second is the local conditions indicating a need for the site, because the applicant will be specifically well placed for that. The third is to tell the minister what resources are available to support the maintenance of the site.

I want to pause and say that I changed the term from “regulatory structure”, which I think is an error. I read the Insite decision from the Supreme Court. The Supreme Court talked about the regulatory structure of Insite, but if you follow the words that came after that, it talked about there being nurses on site, having pamphlets for drug treatment, doing criminal record checks. I think “regulatory structure” is the wrong word to use here, because it tends to make you think of the regulatory structure of the province.

I'll finish up very quickly, Mr. Chair. I know you're being indulgent. I'm almost done.

What we really want to know is what resources the applicant has to support the maintenance of the site.

Then, in terms of evidence, it goes on to say that in relation to the application:

the Minister may take into account evidence,

Now I've changed it back to “evidence”, but it could be “information.” It doesn't really matter. I just thought “evidence” makes more sense in the second half. That's “evidence, if any, related to”

(a) the impact of the site on crime rates;

—because there would be evidence of that—

(b) the administrative structure in place to support the site;

—that's looking at the city, the municipality, the province, and any other structures, and then—

(c) expressions of community support or opposition.

There would be evidence, or not, of that. I'm happy to change that second word, “evidence”.

What I've done, in sum, is straighten out the evidence-information issue. I've clearly told the applicant what they have to satisfy. We keep all of the six criteria that the Supreme Court identified, and we let the minister have regard to the evidence that—I think everybody in this room, including the Conservatives, would agree—should be taken into account. It makes it a very clear and I think a much stronger section.

I don't have any skin in this game. I have no dog in this race. I don't have anything invested in this. I think, however, that it makes this subsection absolutely accord with what we want it to do, which it does not do right now.

11:25 a.m.

Liberal

The Chair Liberal Bill Casey

Thanks very much.

Go ahead, Dr. Carrie.

11:25 a.m.

Conservative

Colin Carrie Conservative Oshawa, ON

Thank you very much, Mr. Chair.

Don was saying that he was just reordering it. I would say that there are significant changes.

For example, if you look under “Application” in proposed subsection 56.1(2), it says “shall include evidence, submitted in the form and manner determined by the Minister, of the intended public health benefits of the site and information, if any, related to”, and then it lists it down.

In Don's section of “Evidence”, it says “may take into account”. In other words, there is not really a requirement for the minister to do it. Anything that weakens the consultation process, Conservatives are not going to be in favour of.

As well, what's in place now, we hear, is onerous. However, the minister approved three new sites just this past week, and I assume they were approved under the old structure, because this is not the new law yet, so unless this is just an attempt to rubber-stamp things.... We're not going to be supporting anything that weakens the consultation phase in any way whatsoever, so we won't be supporting Mr. Davies' amendment.

11:30 a.m.

Liberal

The Chair Liberal Bill Casey

Go ahead, Mr. Oliver.

11:30 a.m.

Liberal

John Oliver Liberal Oakville, ON

Thank you very much.

I want to thank Mr. Davies for the amendment he's brought forward. I wanted to start by saying I think we all agree with the spirit of what he's trying to accomplish, which is to make it easier and more expedited to get these applications through. I want to remind everybody that there used to be 26 criteria that basically froze the development of these safe sites, so there's already a significant loosening of the strictures that were there and that what is in the act is from the Supreme Court. That was a Supreme Court decision. I just wanted to start with that.

I think the suggestion to move from “evidence” to “information” is a really good idea. There are significantly different criteria and interpretation around that, so I think we would support that. I think removing the “if any” clauses for the (a), (b), and (c) criteria actually reduces the minister's flexibility and discretion, so I'm a little bit uncomfortable to see the “if any” removed for (a), (b), and (c).

Unfortunately, I've been stuck on the scrutiny committee for regulations, so I'm starting to understand acts and regs and how departments interpret things. I think overall, what we're trying to do here is dip into how an application process should be constructed and prescribe an application process, so I want to ask the department if they could walk the committee through the impact of this amendment and tell us what impact it would have on the proposed application process. Could you talk about the application process to us a bit and give us any concerns you might have about moving away from the Supreme Court's recommendations?