Health Committee on Feb. 9th, 2017

[Kirsten Mattison, Director, Controlled Substances Directorate, Healthy Environments and Consumer Safety Branch, Department of Health]

There are some distinct sections of the amendment, and I'll talk you through those. I don't want to use your time unnecessarily, so please stop me if something is clear and we can move on to the next portion.

The first part of the change is to substitute the word “evidence” for “information”.

[John Oliver, Liberal, Oakville, ON]

We're okay on that one.

[Kirsten Mattison]

The word “evidence” was only used once in the provision. It was linked to the the intended public health benefits of the site.

[John Oliver, Liberal, Oakville, ON]

I think we're okay with that. I think where the issue for debate here might be is around the reordering of what is required to be submitted and who's going to be submitting it.

[Kirsten Mattison]

Yes. I just want to be very clear of the difference between the public health benefits versus the other five factors. The public health benefits are to allow the minister to confirm that she has the authority to take the decision under section 56.1, because that decision is taken when it's necessary for a medical benefit. That was why that was necessary. The other five factors were grouped as a block in order to demonstrate that those were elements that the Supreme Court of Canada indicated should be considered in making a decision on an application.

The reordering of the requirements does change what the legislation sets out as what must be in an application. Currently the five factors are equally weighted; they're presented together. That's in line with the Supreme Court of Canada decision. Of course, you're absolutely correct that the legislation sets a framework, sets a high-level overview of how the application process works. It's the department's job, and that is sometimes accomplished through regulations under this framework and sometimes through guidance documents, application forms. In the case of supervised consumption sites in particular, there have been typically a series of discussions between departmental officials and the applicant. There's an application form, there's guidance on how to fill out that application form, and there's an ongoing conversation if applicants have any questions or concerns about how they should be providing information or what they should be providing.

[John Oliver, Liberal, Oakville, ON]

I don't want to put words in Mr. Davies' mouth, but my understanding is the (a), (b), and (c), he feels, would be appropriate to be submitted by the applicant, but then under his amendment, the proposed new subsection 56.1(2.1), the part about (a), (b), (c) isn't clear, actually. The minister may take it into account, but it's not clear who's actually submitting it. Do you or does the minister have any way of collecting that information if it doesn't come through the application process?

[Kirsten Mattison]

The department may have access to information, and in considering an application it would certainly use information to which it already has access. It's helpful to the department in the process, so that's the reason for the five factors being together and the terminology “if any”. It's so that the applicant provides information if they've been able to obtain it to support the decision-making process. In asking the applicant to provide it if they have it, it's to help access information that the department might not have access to.

[John Oliver, Liberal, Oakville, ON]

I have a final question. Do you have any problem with changing the words “regulatory structure” to “administrative structure”?

[Kirsten Mattison]

The term “regulatory” was chosen because it was exactly the term used in paragraph 153 of the Supreme Court of Canada decision. I could see substituting the term “administrative” and having the effect. The term “regulatory” was chosen because it was exactly the term used by the Supreme Court.

[John Oliver, Liberal, Oakville, ON]

Do I have time left?

[The Chair, Liberal, Bill Casey]

You have three minutes.

[John Oliver, Liberal, Oakville, ON]

Thank you very much for the departmental perspective. Again, I think it is important to understand that everybody is supporting getting these sites up and running and trying to find ways to make sure, while we have complete application processes, that they aren't unnecessarily burdensome.

When I looked at the administrative structures in place, the expression of community support, the impact of the site on crime rates, I saw there was an “if any” caveat around that one. I thought those would be relevant. If I put my old hat on as a hospital CEO, if I were applying for something, those look to be reasonable things that I would be submitting as part of an application for minister approval. The impact of the site on crime rates, I think, is a more difficult one for an applicant to assess, and the language as originally drafted is “if any”.

Coming back to supporting moving from “evidence” to “information”, supporting moving from “regulatory structures” to “administrative structures”, but otherwise keeping the original five together as envisioned in the act, makes more sense to me.

[The Chair, Liberal, Bill Casey]

Mr. Davies, you have four minutes.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chair.

I have a few things. To answer Mr. Carrie's concern—and I'm not sure this would change his mind in any event—he's quite right. I didn't mean to avoid it. When I changed the words “may take into account” from “shall”, the reason I changed it was because of the words “if any”, so I thought “may take into account evidence, if any”, but I'm happy to put that back to “shall” if that makes him more comfortable. I don't think that would change his view of the amendment anyway.

The problem with this, with great respect to Mr. Oliver, is that we continue to say we want to get these running as quickly as possible. That was said a year ago. The minister stood in the House and said she wanted to get these sites done as quickly as possible, while at the same time saying she didn't think the act necessarily had to be amended. The act is the barrier. The application process is the barrier. We have to acknowledge that.

While we're here at this historic moment with a chance to straighten out the application process, it's our chance to figure out what burden we want to give to the applicant. Applicants have been telling me for a year, “You're making me put stuff in that takes me a long time to gather, that is hard to gather.”

If you're saying that the application has to have expressions of community support or opposition, if any—and I'll get to “if any” in a moment—you're basically slowing down the process. I'm going to go out there, I'm going to get petitions, and I'm going to go knock on doors in the neighbourhood because I'm going to think my chances of getting the minister to approve it will be better if I have expressions of community support. By the way, there will be other people acting to get evidence of community opposition at the same time. Let's not forget that.

I want to talk about the words “if any”. “If any” is extremely confusing. I'm an applicant, and I'm told by a law of Parliament that an application shall include information, “if any”. What is that telling me? Does it mean information if I want to include it—if I have it, I'll put it in—or does it mean if any exists? I'll tell you, there is always information about the impact of the site on crime rates. There are always expressions of community support or opposition.

Any person applying under this section who reads it the way it is, with the words “if any”, will think they have to put that information in or they won't get their application approved, or the chance will be less. That's going to slow down the process.

I also want to be clear that, as I said before, the minister will take into account all those factors. Maybe there will be a countermove and there will be groups organizing to send information to the minister outside the application on expressions of community opposition. The way this is written now, the minister doesn't take that into account. It's only expressions of community support or opposition that are contained in the application.

What I'm saying is that from my reading of the Supreme Court decision, the minister should broadly exercise her discretion and ask what the impact of this would be on crime rates and find out what the community is saying about this issue. Don't put the burden on the applicant to provide that. Widen it so the minister can get that information from anybody she wants.

The last thing I will say is that in my amendment there's nothing that would preclude an applicant from including expressions of public support. An applicant could do everything that you said you want them to do, John. I'm removing the legal requirement, the burden placed on them to provide that.

Really, all I'm doing here is straightening out the burden. Let's clearly tell applicants, “You tell us what the public health benefits of the site are. You tell us about the local conditions. You tell us the resources available to support your site.” Then, when you get that application in, and it will get in quicker now, you can have regard—in fact, as Colin says, “shall” have regard—to the impact on crime rates, the administrative structure, and expressions of community support.

I'm telling you this is better. If we don't pass this, you are telling applicants the process will be slower, and you are passing a section that will be confusing to applicants.

[The Chair, Liberal, Bill Casey]

Thank you.

Ms. Harder is next.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you very much, Mr. Chair.

Can you further clarify? You talked about this phrase “administrative structure”. I follow you to a point, but I would like you to expand on that further. What exactly is the difference? If we're moving from a regulatory structure to an administrative structure, what difference will that make in the end?

[Kirsten Mattison]

The intent of the legislative drafting was to align with the language used by the Supreme Court of Canada. The alignment provides an advantage for someone reading a piece of legislation and hoping to understand the intent of the provision, because it points very clearly to the Supreme Court decision, and the court in its decision elaborated on all of those points.

The intent is to make a clear link between the legislation and the Supreme Court of Canada decision so that the legislation doesn't bear the burden of that interpretation, and so that the entirety of that court decision can be seen to be a direct link into the legislation, so that the interpretation can be maintained.

I would agree that the statements, for example, of nurses present at a site as one of the clarifying statements in the court decision would support the term “regulatory structure”. The intent is to make the link very explicit so that the entire interpretation of the court could be seen to apply to the provision.

[Rachael Thomas, Conservative, Lethbridge, AB]

I can value the fact that this links back to the Supreme Court of Canada decision. Are there other ways that we could clarify, in the application process, what is required here by this terminology?

[Kirsten Mattison]

Absolutely. The intent of the department is to develop a clear application form that applicants would use to structure their application. That form is accompanied by written guidance. We realize that sometimes that's not enough. The department is committed to working directly with applicants to answer any questions they have as they put together the application.

We've had telephone discussions and face-to-face discussions to explain to applicants how they can meet the provisions and exactly what information the department is expecting to see. It's one piece in a very comprehensive process of supporting applicants through understanding their obligations and requirements in submitting an application.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you very much.

[The Chair, Liberal, Bill Casey]

Mr. Webber, you have five minutes.

[Len Webber, Conservative, Calgary Confederation, AB]

I don't need five minutes. Thank you, Mr. Chair.

It was really just a thought here. I think Mr. Davies' intention here is to try to make the application process for safe injection sites easier.

Would you be in a similar position, Mr. Davies, if we were sitting around the table here talking about application processes for pipelines in Alberta? To apply for a pipeline is extremely onerous. It's extremely burdensome and time-consuming. It can often take years.

We fought hard as Conservatives to try to make it easier to get pipelines built throughout this country, but we're not talking about pipelines here today; we're talking about safe injection sites.

Would you agree, Mr. Davies, that it is very onerous to put in a pipeline in this country? Would you be in favour of making it an easier process to put pipelines in, just as you would like to have safe injection sites put in without consultation from the community?

Basically, I see the changes here giving the minister the power to basically overrule any community consultation or community decisions, whereas communities opposing pipelines is something the minister can't overrule.

The thought is there. I was just thinking that in Alberta we are having a very difficult time trying to get pipelines put in place, and you are here talking about how you want to make it easy to put in safe injection sites. I think it's very important that we have community consultation, that we have approval from all areas with regard to getting these sites put in place. I know there are some communities that would be opposed to safe injection sites, yet the minister can overrule the desire of the community.

I don't support what you're doing here, Mr. Davies, in your motion or your amendments. However, I am making again the comparison between pipelines and safe injection sites. I may not have explained it quite clearly, but you know what I'm thinking here. It's very onerous for pipelines, yet you want it to be very simple for safe injection sites.

If you're willing to make it easier for us in Alberta, we can make it easier for you to put in safe injection sites throughout the country.

[The Chair, Liberal, Bill Casey]

Thank you very much.

Mr. Oliver is going to have to answer the question, because he's the next speaker.

[John Oliver, Liberal, Oakville, ON]

I want to respond to some of Mr. Davies' comments.

Yes, there have been delays in getting safe injections sites established, but it is not this bill but the previous bill that was causing the problems. There were 26 requirements in the previous legislation. This is a dramatic reduction, to five. There is really no empirical evidence yet that these five conditions are going to stand in the way of a successful, expedited application.

My second comment is that this isn't just about letting these sites happen. The Minister of Health has to balance public health with public safety, and she needs to have the information available to her to make assessments of the appropriateness of the site for the community.

Having said that, I would like to move a subamendment, Mr. Chair.

I move that in proposed subsection 56.1(2), in line 10 the word “evidence” be changed to “information” and in line 16 the word “regulatory” be changed to “administrative”.

I'd like to move that subamendment.

[The Chair, Liberal, Bill Casey]

You're just changing two words.