Health Committee on Feb. 9th, 2017

[Don Davies, NDP, Vancouver Kingsway, BC]

Okay. If that's the case, that's fine.

[The Chair, Liberal, Bill Casey]

Shall clause 42 carry?

(Clause 42 agreed to)

Now we're going to go to proposed clause 42.1.

Ms. May, we've gone through your amendment and we have concluded that it is outside the scope of the original bill as passed at second reading because it delegates power from the federal minister to the provincial minister. It's a new concept that wasn't in the original, and I have to rule it out of order.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Can I make any comment on that?

[The Chair, Liberal, Bill Casey]

You sure can.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I'll just say briefly that I understand the ruling, but this is a public health emergency. In my normal rights, which I would have had but for this committee's passing a specific motion that primarily applied only to me—I think it's discriminatory and unhelpful—I could have tried, at report stage, to at least make the case that Pivot has made. The anecdotal evidence—and it's actual, real evidence—that Don Davies just mentioned is that these pop-up clinics are happening because it's a public health emergency.

I think it would be far better to include the provincial minister as having a delegated power in this time of emergency to ensure that this life-saving assistance is made available as quickly as possible.

I assume that if my amendment is out of order, so will be Don's, and I understand. I think there is a grey zone here. The purpose of the bill is to save lives. It's not outside the purpose of the bill to find a way to save lives.

[The Chair, Liberal, Bill Casey]

I appreciate your understanding. We did a lot of thinking on it, and we consulted several sources before I was to declare your amendment inadmissible, I can assure you.

Mr. Davies, go ahead.

[Don Davies, NDP, Vancouver Kingsway, BC]

I want to get some more clarification and information to understand the reason for this ruling. First of all, I want to understand the ruling, and then understand why.

The ruling, as I understand it.... You're saying that it's beyond the scope of this bill.

[The Chair, Liberal, Bill Casey]

It changes the concept and adds a whole new element that wasn't in the bill when it passed at second reading. That's the condition. It passed second reading. Everybody voted this through based on a certain concept. There was no delegation to the provinces.

[Don Davies, NDP, Vancouver Kingsway, BC]

That's true. I know the scope of the bill is always a very opaque and abstract determination, but clause 42 of the bill that passed says this:

For the purpose of allowing certain activities to take place at a supervised consumption site, the Minister may, on any terms and conditions that the Minister considers necessary, exempt the following from the application of all or any of the provisions of this Act

The act itself deals squarely, I think, in pith and substance, with the minister having the discretion to grant an exemption on any terms and conditions that she feels necessary.

If you look at Ms. May's amendment—

[The Chair, Liberal, Bill Casey]

She is not granting the exemption under this. She is granting the power to grant the exemption.

[Don Davies, NDP, Vancouver Kingsway, BC]

If I may just continue, there is no question in constitutional law that the minister may delegate authority. The Supreme Court of Canada has ruled on that: the minister may. Therefore, it doesn't change the scope of the bill to expand it and say that the minister may, on any terms and conditions—mirroring the language—consider it necessary to delegate the power to grant an exemption. It is part and parcel, hand in glove, of the power that's right there in the bill.

I have to say that in my conversations with counsel prior to this, it has never once been raised that this could be outside the scope of the bill. It has been argued that it may be redundant, because the discretion already exists in the bill. That's the interesting part. I've been told by counsel, in preparing my amendments, that my amendments aren't necessary, because proposed section 56.1 already allows the minister to delegate her authority, as the minister “may, on any terms [she wants] exempt the following”.

If the minister decides that one of the terms and conditions is that she will delegate that authority, which she has the power to do, I don't see that being outside the scope of the bill. I think it's just an extension of what the bill is already allowing the minister to do.

That's my pitch. I'll respect contrary opinion on that, but I don't think it's outside the scope of the bill.

[The Chair, Liberal, Bill Casey]

I'm not a lawyer, but it seems to me that the members of Parliament at second reading voted to give the minister the power, not the provincial minister. That's my interpretation of it. That's my ruling, unless you want to oppose it.

[Don Davies, NDP, Vancouver Kingsway, BC]

No, I'm good.

[The Chair, Liberal, Bill Casey]

Now we're moving on to NDP-3 in proposed clause 42.1.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chair.

I'm just trying to make sure that I have the correct amendment. The package I have doesn't say “NDP-3” on it. Is this the amendment for clause 42.1?

[The Chair, Liberal, Bill Casey]

It's reference number 8742335.

[Don Davies, NDP, Vancouver Kingsway, BC]

Okay, thank you.

Mr. Chairman, the purpose of this amendment is essentially to deal with the situation that I alluded to earlier, when provincial health ministers, who are very much closer to the ground in what's happening in their communities, may, on an emergency basis, want to request the Minister of Health to grant an exemption in a quicker way than the current application process because it may be necessary to deal with a public health emergency.

This new clause allows the minister of health in a province to request in writing to the Minister of Health that she make a section 56 exemption. It goes on then to have a couple of mechanical kinds of provisions that say that the minister shall, within three days after which she receives the request, publish the request on the departmental website. It says that the minister may, in response to a request, grant an exemption for a period not to exceed one year on terms and conditions the minister may consider necessary.

If the minister does not make a decision within seven days, then the minister is deemed to have granted the exemption on the seventh day. The minister shall, within five days after the day on which a decision is made, publish the decision on the departmental website, and the period of one year on which exemption is granted begins on the day after the exemption is granted.

Really it seeks to empower the Minister of Health to take a request directly from a provincial health minister, without delegation, and essentially grant that request almost on an interim basis. It would allow a supervised consumption site or—again I'm going to use the term used in British Columbia—an overdose prevention site to be sanctioned immediately.

Right now in this country, we have four sites in Vancouver that are operating illegally. Everybody knows it. They're actually getting funded by Vancouver Coastal Health in British Columbia. The provincial ministry of health is spending tens of thousands of dollars on these sites. Everybody is allowing it to happen, but the people who work in these sites subject themselves to legal jeopardy every single day they go to work. They're willing to take that risk because they're saving lives every day, but they shouldn't have to be at legal risk when everybody, including the federal government.... The local police forces are allowing it to happen even though the legal situation makes them technically illegal.

This gives the health minister another little tool to respond directly to a province and act on an expedited basis. Even though we're clearing up the criteria—which I congratulate the Liberal government for doing, and I'm so happy that they're doing it, since it's long overdue—you can still see that the application process for a section 56 exemption will take some significant time. It will be very difficult for an applicant to get all of that information before the minister so that the minister to comply with her duty to act. It will significantly cut it down, but I would suggest it would cut it down from years to months. What this would do is cut it down from months to weeks, or maybe it would even be quicker.

I would urge my colleagues to support this improvement to the act. It doesn't take away anything from the minister. It adds to her tool box and allows her to respond much more nimbly and quickly on an emergency basis.

[The Chair, Liberal, Bill Casey]

Thank you very much.

I'd like to offer our guests some lunch, if you'd like. It's really good.

Go ahead, Mr. Oliver.

[John Oliver, Liberal, Oakville, ON]

I want to thank Mr. Davies for the suggested amendment.

I guess for me this bill is about the legislation giving the minister certain authorities to exempt people. It's not about giving the provinces and territories the rights. There's an important balance here that I'm not sure has been found in the proposed amendment.

I guess my question really goes to the staff here. The minister talks to her counterparts all the time. They can always pick up the phone and talk. Does this proposed amendment give the minister any greater power to make these things happen? Do you think it expedites her decision-making capabilities?

[Miriam Brouillet]

Thank you for your question.

It's an interesting and important question. The discretionary power that is currently found in section 56.1 is a broad discretionary power, and that power must be understood as being used by the minister in a way that is aiming at striking a balance between public health and public safety in light of the charter considerations that she also has to keep in mind when she makes a decision. Therefore, what the minister must consider is whether the applicant, no matter who the applicant is, should be granted an exemption from the CDSA in light of those factors—public health, public safety, and the constitutional obligations that are set out in the charter. Therefore, I think it is clear that it's a broad discretionary power that the minister can use in such circumstances.

[John Oliver, Liberal, Oakville, ON]

Thank you.

Just drawing on that, then, it's kind of clear to me. The Supreme Court laid out five criteria. If the intent of this amendment is that those five criteria for exemption be bypassed by the fact that a minister in a province has declared a state of emergency, I'm not sure that meets that problem of balancing public health and public safety. We can't just bypass that balancing act that the Minister of Health federally has to maintain, and there's nothing prohibiting a minister of health at a provincial or territorial level from submitting an application with those five. If they reached a point where they had declared a state of emergency, then they could be facilitating those applications. They would know who the people are. They would have the entire provincial or territorial resources at hand to put together the application on an expedited basis.

I have a problem with this amendment, because it moves away from the five Supreme Court criteria. It moves away from the balancing of public health and public safety concerns, and it almost relieves the minister of her obligations in the case of a provincial emergency being declared. I have a concern from that perspective.

There are people who need these services today. We need to get these sites up and running immediately. We heard compelling testimony from witnesses when we did our own study that this is an incredible risk, and people are in incredible jeopardy from the opioid crisis that's out there. I do think we need to move forward, but a piece of legislation shouldn't be written to deal just with the crisis of the moment; it has to be reflective of a longer-term solution.

I understand the urgency that Mr. Davies is attempting to address, the sense that maybe something could be put in place faster. I don't know anything about their legality, but we're already hearing that there are workarounds that the provinces are tolerating right now to make sure that there are appropriate safe treatment sites created while they wait for this legislation to come.

Again I'm going to come back to this. The minister can't waive that important balance between public health and public safety and can't just defer to a request from a provincial or territorial counterpart to waive them, and I do believe that provinces and territories have the rights to do this work to get the applications in. They have enormous resources, so there's no reason they can't comply with the act as written.

[The Chair, Liberal, Bill Casey]

Go ahead, Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

There are a few things. The way the act is currently written, subsection 56(1) talks about the minister being able to grant the exemption. In the bill, proposed subsection 56.1(2) says:

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

Therefore the only way an exemption can happen right now is if there's an application that responds to the information.

In answer to John's concerns, I don't see how a written request by a provincial health minister would obviate the need for the federal minister to consider the criteria of the Supreme Court. In fact, right now the application says only that it shall include information on the intended public health benefits of the site and information, if any, related to the rest.

Right now, the way the government members have voted for this, they don't even have to have information on the other five criteria of the Supreme Court. It's only if the applicant wants to put it in. It doesn't even require the minister to take those factors into account, so the only thing that has to be in an application right now is information regarding the intended public health benefits.

I'll read a little bit from Pivot's submission. I think Pivot sent a submission to all of us on this committee. It says:

Delegating the s. 56.1 exemption [or giving the power to the health minister] would empower provinces to take emergency actions during localized or regional health events.... Without legislation allowing them to do so, provinces will, in most cases, delay the provision of health services in order to apply for an exemption under s. 56.1....

The delay caused by the application process threatens timely access to crucial health and safety services.... Even if the application process is streamlined, Health Canada requires time to review and assess the merit of the application. Even when applications are expedited by Health Canada, as in the case of the two outstanding Vancouver...applications, they can take many months to process. At the time of this submission, the two Vancouver applications that were submitted on October 31, 2016 and are being expedited were still under review.

In that time, BC’s emergency SCSs went ahead without an exemption and have been extremely successful in limiting the number of fatal overdoses and increasing access to sterile injection equipment. Statistics from the Coroner’s Office at the end of 2016 show that of the 914 fatal overdoses in B.C. last year, none occurred in any supervised consumption facilities.

It goes on and on. It also says,

Provincial Ministers have more timely and extensive knowledge, expertise, and information than the Federal Minister about the health circumstances and needs of local communities in their province. Their familiarity with regional Health Authorities, medical services, frontline service providers, community health indicators, and gaps in existing services puts them in a better position to assess the nature and degree of need...in a given community.

I just see this again as adding to the tool box of the federal minister. In an unusual situation where a province has declared a provincial health emergency, as British Columbia has, instead of forcing them to go through the application process, which will take time, it gives the minister the ability to grant it quickly but also to consider those factors if the minister wants to. Nothing in here precludes that.

I want to point out something. Without this right now, and if the federal government does not accept this amendment, you are saying that there is no way to operate supervised consumption sites outside of getting an exemption. What you are really saying is that the current sites that are operating right now in B.C. are illegal. If that's the case, why is the federal government not shutting them down? Why is the federal government not enforcing the law? Why are you not sending in the RCMP or the Vancouver Police Department to shut down these sites because they're operating with flagrant disregard of the law?

I'll tell you why. It's because all members of the Liberal government know that those supervised consumption sites currently in operation are saving lives.

If you know that, why don't we provide a mechanism so that they can at least operate under the sanction of the law? Right now they're illegal. You are making the people who go into those sites and the people working there break the law each and every day. You know, and the government knows, that they are saving lives, but it won't take the jeopardy away from them.

To order them to shut down and to tell them to make an application means that in a public health emergency you would be saying exactly what we just argued against in Ms. Harder's motion, when we said 45 days was considered too long for the government, because people die in that time.

You're still going to make applications go through the application process, knowing that if a province needs it right now, there's no mechanism for a provincial health minister to directly consult with the federal health minister and for the health minister to authorize it right now, and that's what this amendment does.

There's no harm in providing the health minister the discretion. If the health minister doesn't think that the provincial request is legitimate or substantial, the health minister doesn't have to approve it, but let's give the health minister that ability to at least do that on an emergency basis when the health minister thinks it's necessary.

I'll just conclude by saying this is not academic. This is a real situation in British Columbia right now.

[The Chair, Liberal, Bill Casey]

Okay.

Mr. Oliver is next.

We're actually on proposed new clause 42.1. It's been pointed out to me we originally said we would allow the time to be 10 minutes on clause 42 only, but we're on proposed new clause 42.1. I just broke the rules to let Mr. Davies have a little extra time there.

Mr. Oliver, you're up.

[John Oliver, Liberal, Oakville, ON]

The only person on this committee who said there are illegal operations in British Columbia is Mr. Davies, and nobody else has said that, I don't think.

Second, with regard to the article in the report he read from, this is a new government. This is a new bill, and this is a new minister of health, so where the previous government was setting up obstacles to safe consumption sites, this government is doing everything they can to facilitate them and get them in place. The bureaucratic processes described in that report are not proven and are not necessarily going to be in effect here.

Your first point was that the minister has the power to do this right now, to waive the Supreme Court requirements, to waive what's in section 42. I believe the minister could take a phone call tomorrow from a minister of health, if the bill were to be passed and enacted.

I have a question, then, for the staff here. Does the minister not already have the discretion to do this in an urgent situation if a phone call came from a minister? Do we need this amendment? Does she already have the power?