Health Committee on Sept. 12th, 2017

[Doug Eyolfson, Liberal, Charleswood—St. James—Assiniboia—Headingley, MB]

Yes, but do we know it was drug-related if we don't know the amount or whether it was an amount that indicated intoxication? Could you call it drug-related simply because the accident victim had a detectable amount that could have been from 10 days before? Would that make it a drug-related occurrence?

[Dr. Christian Leuprecht]

The cause mechanisms would be inherently difficult to disentangle. Somebody could be particularly drunk and it's the phone that rings that ultimately happens to distract him or her from driving. Different people metabolize cannabis differently just as different people metabolize alcohol differently. I think the causal mechanism is going to be inherently difficult to discern, but I think we can all reasonably agree that driving high is probably a bad plan.

[Doug Eyolfson, Liberal, Charleswood—St. James—Assiniboia—Headingley, MB]

On that, we're in total agreement. What I'm saying is that the presence of it doesn't necessarily mean one is high. That's the premise of it. The presence of it in a detectable amount doesn't necessarily correlate. That was the point I was making.

Thank you.

Mr. Boyd, you talked about how there would be some concerns—you talked about zoning—when it came to growing, and that there may be people who object to this, who might not want it in a multi-family dwelling. We do know that the owners of a multi-family dwelling can ban all sorts of things as part of a rental agreement. You can ban pets, which I find very strange, but you can. In Manitoba, there are certainly some new rental property owners who are banning smoking in their rental units.

Do you foresee any difficulties should any rental property owner decide that as part of your rental agreement you cannot grow cannabis plants on your premises?

[Prof. Neil Boyd]

I don't, unless, I suppose, there is an absence of any logic, but I can think of a number of reasons as to why the owners of an apartment building might want to introduce that restriction—in terms of smoking potentially, in terms of odours, and in terms of the installation of grows. I've been told that there are some grow operations, or there's a technology that allows growing to take place in a small space with relative risk. It remains to be seen, but it strikes me that we're going to see those kinds of restrictions. We may see those kinds of restrictions by municipalities. We're certainly going to see municipalities getting into the business of restricting retail.

[Doug Eyolfson, Liberal, Charleswood—St. James—Assiniboia—Headingley, MB]

Certainly, yes. That is one of the concerns I've heard from realtors. They've been approaching me saying that they are concerned they might have a lot of people in their buildings growing it.

[Prof. Neil Boyd]

We know that historically there has been a problem, but of course a lot of that difficulty can be traced to the illicit nature of the trade. The kinds of problems we've seen in the real estate industry with tenanted grow ops and the like can be essentially eliminated with a legal market.

[Doug Eyolfson, Liberal, Charleswood—St. James—Assiniboia—Headingley, MB]

Thank you.

How much time do I have?

[The Chair, Liberal, Bill Casey]

You have 28 seconds.

[Doug Eyolfson, Liberal, Charleswood—St. James—Assiniboia—Headingley, MB]

I don't think I can ask a question and have a meaningful answer in 28 seconds, so thank you very much.

[The Chair, Liberal, Bill Casey]

Thank you very much.

That completes our seven-minute round. We'll go to a five-minute round, starting with Dr. Carrie.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you very much, Mr. Chair.

I want to say that I love having lawyers as witnesses, because it seems there are so many different opinions, and with this legislation, a lot of it's not clear. One thing we are certain of, though, is that you guys are going to make millions of dollars with these court challenges and stuff. I'm looking forward to that for the profession.

I do want to correct the record, Mr. Chair. Mr. Oliver said that people have brought up that the status quo is better than this legislation. I think he might have been referencing my repeated question with regard to the Liberals' messaging in which they say the status quo is not working. I said not working, I didn't say it was necessarily better. I actually hope this legislation is better, because I think way too much marijuana is being consumed by Canadian youth, but we'll see. I'll hold the government to account as to whether its approach is any better.

I do want to talk to Mr. Leuprecht.

One of the things you brought up was international lessons learned. I'm very much aware that Canada has signed on to three international conventions and treaties, to which, apparently, the current Liberal government hasn't given notice that we will be withdrawing. What I'm worried about is that my community is a border city, Oshawa, and we send trucks back and forth across the border. Many countries still consider this, from a federal standpoint, to be illegal, and we're seeing, especially with our American neighbours, some thickening of the border.

I'm wondering how this legislation may affect jobs and commerce internationally. I was wondering if you could comment on the fact that the Liberals seem not to have even moved forward in addressing these notices that they have to give. With Canada being out of sync with most of its trading partners, how do you think that will affect our jobs in international trade?

[Dr. Christian Leuprecht]

The evidence is reasonably clear. What's going to keep happening is that harder drugs tend to be imported from the United States into Canada and a good deal of the cannabis product that is being grown in Canada ends up being subsequently exported to the United States. My concern is that what we'll get is an increased export market, which might then also result in increased enforcement by the United States.

We also know that trusted shipper programs are among the preferred means by which people move things across the border, because they have the least rate of chance of interception. I think one thing the government would be well advised to do is to put together an appropriate risk management mechanism through CBSA to make sure that the trusted shipper platform isn't compromised to the extent that the Americans then decide to abandon the platform.

Let's remember, of course, that if you look at the city in which I reside, Kingston and the surrounding area, you'll see an increase in its growth of cannabis. That's because it's within six hours' drive of many of the major cities on the eastern seaboard. By virtue of geography and the fact that, as I've mentioned, much of the legislation or the penalties in Canada are much lighter than if you got caught for a similar offence in the United States, there continues to remain a big incentive to be active in this business in Canada and export to the U.S.

While it would be inherently difficult to harmonize our legislation with American legislation on this, certainly this legislation further removes the congruities between Canada and the U.S. Widening those two legislative approaches may then subsequently make life more difficult for those people who make their living moving things across the border.

[Colin Carrie, Conservative, Oshawa, ON]

I'm certainly worried about being out of step with our major trading partners in this regard.

You mentioned something about the cost and the burden being mostly borne by the provinces. Also, with this new legislation, issues like impaired driving would be more difficult and expensive to prosecute and less likely to get a guilty verdict. I know the Canadian Association of Chiefs of Police actually recommended the move toward decriminalization, and you mentioned that in your opening remarks, as well, as a way to move small quantities out of the criminal justice system and allow the criminal justice system to really deal with the dealers and people in organized crime.

I was wondering if you could comment in that regard. How much more difficult is it going to be now to get guilty verdicts when it's a legal product and you have to prove impairment, as opposed to just confiscating and having it illegal?

[Dr. Christian Leuprecht]

I think we heard from other witnesses that there is considerable ambiguity and discretion that law enforcement is going to be afforded, and that in itself is going to be grounds for any number of challenges. This is certainly not going to do anything to free up our courts. It's also going to create some challenges in terms of ensuring that we have consistency across the country.

This can then go one of two ways. It can be a dissuasion to lay charges in the first place, because police officers are busy people and so they might just simply decide they're not going to put the emphasis on enforcing certain provisions of the act that they think are going to tie up too many people in courts for too much time. Or it's going to mean that when in doubt you could decide to err on the side of caution and impose the maximum charge or penalty in an effort to try to establish some benchmark where you're ultimately not going to be challenged on your discretion.

I think there is concern, certainly. I have yet, among my many friends in law enforcement, to find someone who feels comfortable with this legislation.

[The Chair, Liberal, Bill Casey]

Your time is up.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you.

[The Chair, Liberal, Bill Casey]

Go ahead, Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

My question is for Professor Leuprecht. I believe you asserted a concern that legalization would produce a higher rate of impaired driving.

We have a letter here from the Governor and the Attorney General of Colorado to the Attorney General of the United States that states that the state trained approximately 5,000 peace officers on marijuana-related laws, including driving under the influence of drugs, increased by 68% the number of trained drug recognition experts in the state, and trained 1,155 peace officers in advanced roadside impaired driving enforcement. They also appropriated $2.3 million to education.

Given the advanced capability of detecting drug impairment, in the first six months of 2017 the number of drivers who the Colorado State Patrol considered impaired by marijuana dropped 21% compared with the first six months of 2016. While I expect that the education had an effect on that, I wonder if you have any basis for your concern regarding legalization increasing the rate of impaired driving.

[Dr. Christian Leuprecht]

Yes. I'd love to see the same rate of training and effort rolled out in Canada as was done in the United States in regard to detection and enforcement with regard to impaired driving. That's ultimately also the explanation.

In the United States, it's well known that driving under the influence is severely enforced on any number of fronts and that the penalties are very severe. As a result, I would humbly submit that there are strong endogenous constraints here because there was already a strong culture of enforcement against DUIs, in a way, where in Canada we tend to show greater latitude.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

I'd like to switch to Professor London-Weinstein.

You mentioned the lack of guidance regarding summary versus indictment. I wonder if you could elaborate on how that is done normally and what sort of guidance you might envision.

[Anne London-Weinstein]

Sure.

Just briefly in response to your earlier comment, Mr. McKinnon, our Supreme Court has recently made it easier for officers to testify as drug recognition experts without requiring a full litigation, a full voir dire, or a trial within a trial as to their qualifications. Our courts are responsive to the cases that come before them, and with proper training I don't anticipate that the legalization of cannabis is going to place additional burdens on our court systems.

In relation to the way the crown exercises discretion, that's typically done through the Attorney General. They would have policy guidelines in place that would indicate what sorts of factors contextually characterize each case that would give the crown some direction as to whether something should be simply diverted and not result in any kind of a criminal charge, whether it should be proceeded with by way of summary conviction, which is less serious, or whether there are factors that overlay the case such as a prior serious conviction or whether there is the presence of organized crime or some type of criminality that would mandate proceeding by way of indictment.

To answer your question, those guidelines would come through the Attorney General and would form part of the crown policy manual.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Okay, but I thought you had indicated that you would like to have seen that in the act itself.

[Anne London-Weinstein]

If we're moving away from criminalization into what is essentially what I view as a regulatory model, it would be helpful to have some sorts of indicators within the statute itself as to how that discretion should be exercised.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Okay.

Carrying on to a young persons' involvement with cannabis, you expressed concern about the five-milligram limit, which would activate the youth justice system.

Would you suggest that the limit should be raised, and beneath that limit have a comprehensive program or policy for confiscation, training, fines, and so forth?

[Anne London-Weinstein]

I wouldn't want the limit to be raised. I want to say that I'm a mom and a grandma, so really what I'm concerned about is kids getting caught up in the criminal justice system. I understand, by reading the act, that it is there because they don't want kids to be used by organized crime for trafficking. I don't want to overstep, but I think the intent of that section is to prevent organized crime individuals, older adults, from using kids, because the penalty would be less for kids, and they don't want kids to be dealing with large amounts of marijuana. I understand that, but I do have a concern that, since kids are most likely to be exposed to the criminal justice system at that stage, more so than adults, I wouldn't want to see their behaviour criminalized at all.

I think young people should be protected from the criminal justice system for everything except acts that are truly criminal.