Health Committee on Sept. 12th, 2017

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

[The Chair, Liberal, Bill Casey]

Mr. Ayoub, you have five minutes.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

I would like your opinion on something we talked about a little earlier. Mr. Carrique, you said that there is some movement inside organized crime. If we were to draw a pie chart representing the financial resources of organized crime, for which cannabis is a source of revenue, if we reduced the part available to organized crime, could we logically loosen its hold and hurt it financially?

In your opinion, can paradigms be changed as a result of that hypothesis? You said that it will sort of shift the problem. But we have to find a solution to the problems we know. If we could see into the future, it would be good, of course. Do you have an idea where the movement would start from? I would like to hear your opinion.

[D/Chief Thomas Carrique]

You're absolutely right, sir, in that we do not avoid addressing a problem because it will shift the problem. We have to utilize systems thinking in a strategic approach to this. We just need to look at the drug usage across Canada right now. One of the great concerns that we have is obviously the use of opiates and specifically fentanyl so, as a policing profession, a lot of our efforts and attention are turned towards the use of fentanyl, and we will continue to concentrate on the distribution of fentanyl and ensure that we are spending a significant amount of time, energy, and resources in mitigating any interest that organized crime may have in expanding into that space.

We know that cocaine is a very lucrative, illicit commodity for organized crime, and that's another one that takes up a lot of our interest, a lot of our time. It's transnational as well, so there will be no shortage of illicit drugs for us to spend our time and attention on.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

I have often heard comments from people in the streets. I am not talking about police officers, but about students, high schoolers and kids going to CEGEPs in Quebec. They tell us that they can get cannabis much more easily than cigarettes or even alcohol. Those are products that are already controlled, and have well-established standards.

How do we react? Can we identify the problem for youth, the problem that gives rise to the bill that we are working on and that we have to implement in order to protect our youth? That is where we want to do the most harm to organized crime, by depriving it of its means and its revenue as we protect our young people.

What do you think about our young people telling us that it is easier for them to get cannabis than alcohol and cigarettes?

[D/Chief Mike Serr]

We don't disagree that youth right now have easy access to marijuana, and that's certainly a challenge for us in law enforcement. We do believe that youth, even under a regulated model like with alcohol, will still be able to access marijuana. We're not naive to that, and that's why we believe it's so important to have a highly regulated system. It does makes it more challenging for our organized crime investigators to really put some pressure on organized crime to dissuade them from selling to youth. Educating parents as well will be critically important.

Like I said, as we see Colorado, I believe it's 48% of youth have received marijuana from somebody who had purchased it legally. Again, that's why we're advocating for packaging and that the packaging describe the very strict enforcement action that can be taken on someone who essentially bootlegs marijuana. That is critically important.

Youth will always be able to access it at some point. We think, if there are home-grows, it gives them more opportunity to access it, so anything we can do to restrict and limit their opportunities will be helpful, but it's not going to be enough alone. We certainly need education like we have with tobacco in order to disrupt youth use.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

One of the things I appreciate enormously about this current debate on the legalization of cannabis is that we are actually talking about it. We are now admitting that there is a problem and that it is with us every day. Cannabis can be obtained on the street with disturbing ease, though it is currently illegal. We were not talking about that beforehand. But the problem still existed. We were not dealing with the problems affecting young people. Education is extremely important. Parents really have a role to play, whether it is about alcohol, cigarettes or, in the future, cannabis.

I find it very interesting to be able to be brought up to date on education and regulation. Your comments are very much in tune with municipalities and community organizations. Services are being provided directly to Canadians and to schools. It is important to continue those efforts. I feel that that is the direction we are taking in terms of cannabis. The ability to be a leader in the field does Canada honour. Our young people are the main users of this drug. If we were not doing this exercise, we would be missing the opportunity to act. I am very happy that you are dealing with these issues positively and that you are considering the possibility of eventually addressing the problem. I congratulate you for that. We will certainly be able to work together. Your comments are really being considered. Thank you.

I have no further questions.

[The Chair, Liberal, Bill Casey]

Thanks very much.

That winds up our session. On behalf of the committee, I just want to say that we have some of the best expertise in the country come to this committee, and this panel is among the best. We really appreciate your contribution. On behalf of the committee, I want to thank you all. You've done a great job of communicating your perspective and helping us understand the policing point of view.

Before I say good-bye, I want to ask a question. About an hour and a half ago, Deputy Chief Chatterbok said in his opening remarks that the amount of time our front-line officers have available to conduct proactive activities is 29%.

Can you help the committee understand what the other 71% of a police officer's time is taken up with?

[D/Chief Mark Chatterbok]

Certainly. The majority of the time would be responding to calls for service, but there's also administrative time spent on top of that, which includes preparation of occurrence reports, filling out paperwork, phoning witnesses. There's a whole host of things that would fall into the administrative part of the duties.

[The Chair, Liberal, Bill Casey]

Thanks very much again. It has been a pleasure.

We're going to suspend now until 10:45.

[The Chair, Liberal, Bill Casey]

It being 10:45, I call our meeting back to order. This is meeting number 65 of the Standing Committee on Health, studying Bill C-45.

I'd like to welcome our panel today, and we're looking forward to hearing from you.

As individuals we have Neil Boyd, professor of criminology, Simon Fraser University. We have Christian Leuprecht, from the department of political science, Royal Military College, by video conference from Australia. I didn't realize the Royal Military College of Canada was in Australia, but that's fine with me. From the Barreau du Québec we have Paul-Matthieu Grondin, president of the Quebec bar; Luc Hervé Thibaudeau, president of the consumer protection committee; and Pascal Levesque, president of the criminal law committee. Also, from the Criminal Lawyers' Association, we have Anne London-Weinstein, former director.

I want to thank you all for coming, and we're looking forward to your contribution to our committee.

Each of the individuals will have a 10-minute opening statement, then the Barreau du Québec will have 10 minutes, and the Criminal Lawyers' Association will also have 10 minutes.

We'll start with Mr. Boyd, and after everyone makes their presentation of 10 minutes, we'll have questions.

[Professor Neil Boyd, Professor of Criminology, Simon Fraser University, As an Individual]

Thanks very much. It's an honour and a privilege to be here this morning to address the committee. I've provided the committee with a brief and I'd like to make a few additional comments and focus as well on a few points within that brief.

First, I have to say that I applaud the approach taken by the government, that of legalization of cannabis. Regulation in the interest of public health is critical. I think it's an approach that will increase our knowledge of both the harms and benefits of the use of cannabis. I'd like to echo some of the points made yesterday by Mark Ware in relation to how much we don't know and need to know, and the extent to which the data appear at times to flow in both directions. One of the great benefits of legalization is that we will be much better able to answer those kinds of questions.

I think it's also important to recognize that in many respects this is a human rights issue. Marijuana was criminalized in 1923 with the simple declaration in the House of Commons that there was a new drug in the schedule. There was no knowledge of the drug at that time, and it is now clear that, for most users in most circumstances, alcohol and tobacco are more toxic and more disabling with much greater morbidity.

We must always remember that we're speaking here of the formidable force of criminal law, and adults who use this drug do not deserve the application of the criminal sanction, nor do children or minors who use this drug. I'd add that the Narcotic Control Act passed in 1961 contained the most severe penalties for cannabis possession and distribution after 50 years of virtually no charges in relation to the drug. Between 1908 and 1961, we had approximately one thousand convictions for all drugs combined. In 1961 we passed the Narcotic Control Act after a lengthy debate about whether capital punishment would be appropriate for people who trafficked in narcotics—cannabis was one of those—and yet by 1967, more than a thousand Canadians were convicted of simple possession of cannabis alone. More than half of them went to jail. It was a period that has been described as the “get tough” period in response to cannabis, but by 1975, there were 40,000 convictions annually and jail was no longer a practical option.

My comments with respect to minimizing the harms to youth are, yes, I think the age of 18, or probably in most provinces more appropriately 19, seems reasonable, similar to that for the purchase of alcohol. I think we have to keep in mind that this isn't a drug that is actually as dangerous as alcohol, and the kinds of approaches that we take ought to be somewhat similar. At the same time, I would acknowledge that in many respects we haven't done a terribly good job of limiting, for example, the promotion of alcohol.

The age of 25 will only encourage the black market to continue, along with purchase for youth by those who are over the age of 25. I think schedule 4 needs to be broadened to include edibles and bombs, albeit ensuring that these products can be packaged in a manner that does not lead to unintended harms, particularly to children and youth. I'd also note that subclause 62(7) gives power to the minister to refuse an applicant for involvement in production on the basis of a prior cannabis conviction. I'd argue that involvement in the current illicit trade should not be sufficient to provide a bar to entry, but rather, threats, use of force, or evidence of dishonesty from other criminal convictions all seem to be good reasons to prevent an individual from becoming involved in this industry.

I'd also suggest that the use of a dwelling for growing up to four plants may quite appropriately be subject to zoning restrictions, most probably a multi-family dwelling. Sometimes this will be through a strata, through a rental arrangement, and sometimes I think it will be done through a municipality. Again, I think that's all about public safety with respect to the growing process.

I know the distribution system is not the mandate of the federal government, but I would make the following observations. Failure to provide reasonable access through either a sufficient number of government-run stores or private dispensaries, both publicly regulated, risks continuation of the black market. I would say, too, that a medical model of use seems more helpful, more consistent with public health than a recreational model. To the extent that we can, I think we ought to be focusing on those kinds of potential benefits from cannabis use.

On the issue of public safety and protection, I have great difficulty in understanding the logic and practical application of clause 8 of the cannabis act, the creation of the criminal offence of possession of illicit cannabis. With the growing of up to four plants permitted, how will a determination be made that a person is in possession of illicit cannabis, and more important, why would we treat this as a crime?

With respect to clause 9, I understand the desire to restrict trade to those who follow the rules, but our approach to cannabis is much more harsh and condemnatory than our approach to tobacco and alcohol. Given the relative risk to public health of each of these drugs, that doesn't make good sense.

I go back to the point about human rights. The idea that we would pass legislation that would retain a criminal offence of possession of cannabis seems to me to be inconsistent with at least part of the logic of this. I know that the Prime Minister has repeatedly said it's about eliminating the black market and reducing access, but part of it is also about recognizing that people who have used cannabis, or who use cannabis, do not deserve the label of “criminal”.

Use economic levers to restrain the trade by all means. Civil injunctions and non-criminal fines seem appropriate. The adult use or production of cannabis, we have to remember, is no more morally offensive than the production of beer, wine, or spirits. This has to be, or ought to be at least, one of the reasons for introducing this act in the first instance.

Thanks very much.

[The Chair, Liberal, Bill Casey]

Thank you very much.

I learned today that in 1923 marijuana was declared a new drug. I didn't know that.

[Prof. Neil Boyd]

Yes, 1923.

[The Chair, Liberal, Bill Casey]

Thank you.

Now we'll go to Mr. Leuprecht from Brisbane, Australia.

[Dr. Christian Leuprecht, Professor, Department of Political Science, Royal Military College of Canada, As an Individual]

Thanks for the privilege of being with you today. This is a matter that's dear to my heart, and I've been following it closely.

I've submitted a brief to the committee, and I'm hoping to take you through some of the highlights from that brief.

There seems to be a bit of confounding with regard to the common logic that underpins all this. People are smoking cannabis, so we might as well just legalize it. On that premise, we might say that kids are drinking at the age of 18, so we may as well just get rid of the drinking age altogether. Some of the underpinning logic confounds me.

The medical research we have suggests that brains continue to develop until age 25. Since this development is adversely affected by smoking cannabis, generally scientifically based public policy would set the age of purchase at 25. Any other age would be entirely arbitrary.

The approach for legalizing cannabis seems to be completely inconsistent with the government's goal of reducing smoking. As you know, there is public legislation that works on plain packaging, apparently in an effort to reduce smoking, yet here, the government is quite happy to induce and encourage the Canadian population to smoke more. I'm not quite sure what exactly the difference is in terms of health consequences.

Evidence from Washington State and Colorado suggests that there are considerable costs associated with the legalization of cannabis, and that cost will largely be borne by the provinces—public health costs, social services, law enforcement, the justice system—so I think we need to cost these out. I think the expenses associated with that warrant some equalization payment from the federal government, because essentially, the federal government is legalizing cannabis largely on the backs of the provinces and provincial taxpayers.

By way of example, impaired driving cases involving drugs are less likely to be cleared by charge—59% as opposed to 71% for alcohol-impaired driving. They take longer to resolve in the court system—28% of them take more than 30 days as opposed to 16% for alcohol-related incidents. The median time for processing in court was 227 days as opposed to 127 days for alcohol-related incidents. They are also less likely to result in a guilty verdict, so in effect, we're going to tie up already busy courts even more as a result of this legislation for impaired driving.

The rate of impaired driving incidence in 2015 was the lowest on record in 30 years of record-keeping. In roughly 72,000 incidents, young people are represented disproportionately. One in six of them were repeat offenders. About 2,700 incidents involved drug-impaired driving. That's almost double the roughly 1,400 incidents in 2009. That might simply be a function of record-keeping, but there does seem to be a suggestion that as drinking while driving declines, there is an increase in drug-impaired driving.

There were about 2,500 fatal motor vehicle accidents in 2012, of which 614, about 24%, involved drivers who tested positive for drugs. The most common drug was indeed cannabis. Another 407 involved both alcohol and drugs. In other words, cannabis is responsible for about a quarter of the fatal motor vehicle crashes in Canada. The trend seems to be positive, so this legislation will make Canada's roads less safe, and more people will die in accidents as a result of the legislation. The only way around this that I see are draconian measures in the Criminal Code to contain the problem.

Canada also risks becoming the Uruguay of North America. When Uruguay legalized cannabis, it became the epicentre of cannabis growth and export throughout South America. In Canada's case, Canada and Paraguay are the two single largest sources of origin of contraband cigarettes in a market such as Mexico. Due to Canada's relatively lax laws for growing and manufacturing, we have seen transporting streams.

In selling the product, legalizing will increase the incentive to produce the product in Canada and then export it throughout the continent, so the profit for organized crime is not just to be made in Canada but also by exploiting the favourable circumstances within Canada to manufacture the product.

The challenges around contraband tobacco suggest that the legalization of cannabis should be accompanied by creating an ombudsperson who can coordinate the law enforcement efforts among federal agencies and among federal, provincial, and local governments and agencies. In comparing contraband markets in Ontario and Quebec for cigarettes, the case of Quebec demonstrates that the impact of systematic, methodical enforcement reduces substantially the size of the illicit market while increasing tax revenue.

On the tax revenue side, I might add that the government is unlikely to raise the amount of tax revenue that it's hoping for. By virtue of the tax being imposed on the product, there will be by definition a contraband market for a cheaper product. Given the size and the maturity of the contraband market for cigarettes in Canada in general, and in Ontario in particular, one can reasonably infer and expect an equally outsized contraband market to persist because it will likely be run by the same people who run the illicit cigarette market. In part, some entities with licences would likely produce cannabis legally and then will have an incentive to sell the product illegally at a higher profit margin. That may possibly be what is currently motivating the Ontario government not to hand out licences to individual manufacturers.

In conclusion, I would say, “Decriminalize? Perhaps. Legalize? No.”

[The Chair, Liberal, Bill Casey]

Thank you very much.

We'll move to the Barreau du Québec. I'm just not sure who's going to make the presentation.

[Paul-Matthieu Grondin, President of the Quebec bar, Barreau du Québec]

Mr. Chair, Vice-Chairs, and distinguished members of the committee, good morning.

Allow me to introduce myself. My name is Paul-Matthieu Grondin and I am president of the Quebec bar. On my right is Pascal Levesque, president of our criminal law committee, and, on my left, is Luc Hervé Thibaudeau, president of the consumer protection committee.

Mr. Chair, thank you for inviting the Quebec bar to share with you our position on legalizing and regulating cannabis in Canada. Without taking a position on the opportunity to legalize cannabis, the bar is generally in favour of Bill C-45, which proposes a complete system and clear measures pertaining to the production, distribution and sale of the substance.

From a public protection perspective, however, we have to focus on some major issues that deserve to be pointed out.

We must repeat the importance of the awareness, prevention and education measures, especially from a legal point of view, that are intended for the public and, more particularly for the young. In order to allow the public to make an informed choice about recreational cannabis use, it is essential to allocate funds to research in a wide variety of areas, especially in health, in sociology and, of course, in law.

We must remember that younger people use cannabis more. In fact, Statistics Canada informs us that the age group using cannabis the most is the group between 14 and 24, as you know. So young people should be the targets of awareness and prevention efforts to a greater extent.

I will now step aside to allow Mr. Levesque to talk about the system as it applies to minors, which is one of the issues that is important to the Quebec bar.

[Pascal Lévesque, President, Criminal Law Committee, Barreau du Québec]

The bill criminalizes cannabis possession more strictly for minors than for those who are of legal age. In fact, it sets a possession limit of 5 grams or less for minors, while, for those 18 and over, the limit is 30 grams or less. The Quebec bar points to the importance of not criminalizing minors for behaviour that is permitted for adults. We must remember that this is a particularly vulnerable population that must be adequately protected.

In that context, let us remember that the youth criminal justice system is different from the one for adults. It is based on the principle that moral culpability is less and it specifically emphasizes the social reintegration and rehabilitation of young people. So we must avoid submitting them to consequences that can lead to a criminal conviction. Given the importance of not criminalizing young people for simple possession below the allowed limit, we recommend in their case that possession of fewer than 30 grams of cannabis, that is between 5 and 30 grams, be decriminalized, and that it be made a ticketable offence to possess more than 5 grams and up to 30 grams.

As a ticketable offence, a fine is the most common consequence, whereas, as a criminal offence, the consequence could be imprisonment. We also mention that the system of ticketable offences established in the bill does not apply to minors. Instead, we are referred to the Youth Criminal Justice Act. The bill provides that those aged 18 or older and who commit certain offences can be prosecuted and a summons issued, at the discretion of the peace officer. Young people, who make up a particularly vulnerable population, are subject to the regular criminal process under the Youth Criminal Justice Act. We therefore consider that awareness, education and prevention are the best ways to eliminate cannabis use among the young. In fact, we must not resort to the criminal justice system in order to compensate for a prevention and education system that is inadequate.

As for the system of ticketable offences, the bill makes it possible, in certain cases, for a peace officer to issue a ticket to a person who commits an offence within the proposed legal framework. Paying the ticket means an entry in a judicial record, is not to be confused with a criminal record. The bill makes reference to a judicial record, not to a criminal record. But the concept of a judicial record is not defined in law. We wonder who is responsible for the record, when it is created, what information it contains, when that information is destroyed, who will have access to the record, and for what purposes the information will be used. It would also be wise to establish a system of sanctions for any breach of the classification obligations and use of the record.

I now yield the floor to Mr. Thibaudeau, who will provide you with information on questions on the labelling standards established in the proposed Cannabis Act, and about the sale of cannabis by the provinces.

[Luc Hervé Thibaudeau, President, Consumer Protection Committee, Barreau du Québec]

Thank you very much.

Good day, Mr. Chair and all members of the committee. Thank you for hearing us today.

It's undeniable for the Quebec bar that strict labelling rules will be necessary to reach the goals. There are three main goals of information, prevention, and also in many cases and especially in the cases of young people, either below 18 or below 25, dissuasion. These strict labelling rules must be set up to govern the legal framework related to cannabis, just as is being done with alcohol, and just as is being done with tobacco.

To this extent Bill C-45 provides right now for neutral packaging, what we can identify as being neutral packaging, but there are not too many details being provided at this point to inform us on what the specific conditions will be for marketing and commercialization of cannabis. We feel there is a need for strict national standards that must be established by the federal government, either by amending Bill C-45 or probably by way of bylaws and regulations that will provide us, again, with a similar framework as we're seeing right now with the tobacco legislation warnings and descriptions of contents.

We see there are already, at paragraphs 139(1)(o) and 139(1)(k), provisions in the act that provide for the establishment of regulations with respect to the strength of the cannabis that will be put on the market.

There is nothing right now concerning comestible cannabis, either ingestible food or beverages. The bill right now authorizes the provincial legislatures to regulate the distribution and sale of cannabis, but the list provided at clause 69 of the bill right now is, in our opinion, not exhaustive enough and not detailed enough to give clear indications to the provinces with respect to the framework that must surround the commercialization of cannabis. This can lead to some confusion as to what the provinces must respect when they will table or when they presently are tabling bills governing the commercialization and marketing of cannabis. All this is in a context, of course, of protecting the consumers and also protecting the producers.

Thank you.

[The Chair, Liberal, Bill Casey]

Thank you.

That's very good.

Now we'll go to the Criminal Lawyers' Association, Anne London-Weinstein, for 10 minutes.

[Anne London-Weinstein, Former Director, Criminal Lawyers' Association]

Good morning. Thank you very much to the chair and to the committee for inviting the Criminal Lawyers' Association to speak this morning on this very important act.

I'm a former director of the Criminal Lawyers' Association, and I'm president of the Defence Counsel Association of Ottawa. I have been a practising criminal lawyer for almost 20 years, and am an adjunct professor at the University of Ottawa law school.

I'd like to say at the outset that the objectives and goals of this bill are laudable, those being the protection of public health and public safety by establishing strict product safety and product quality requirements and by reducing the burden that marijuana offences currently place on our criminal justice system. We know that Canada has high relative marijuana usage. We also know that there's a real likelihood that at some point young persons may experiment with marijuana. Given these two inescapable facts, it makes good sense to move toward removing the stigma associated with cannabis for Canadians.

Reading through this act, which is quite dense and detailed, one senses that while the act does eliminate many of the stigmatizing aspects of marijuana use, the drafters of the act still drew fairly heavily on the criminal law as a method to enforce regulation. In my view, it would be preferable to avoid reliance on the criminal law and criminal sanction as a method of ensuring compliance with what should be a largely regulatory piece of legislation for what should be a legal product.

We know from criminology experts like Professor Anthony Doob and Rosemary Gartner from the University of Toronto's centre for criminology and socio-legal studies that imprisonment does not deter crime any more effectively than less harsh sentences. What deters crime, we know definitively, is certainty of detection. We also know that persons who are sent to prison are not less likely to reoffend than similar people who manage to get a sentence not involving prison. Despite these findings, persons are sentenced to lengthy periods of incarceration because we are unable as a society to craft sentences that adequately reflect the seriousness of the behaviour.

We also know that children of parents who are imprisoned are more likely to end up running afoul of the law themselves. Other collateral effects of the imprisonment of a parent is the fact that children of these parents are more likely to become homeless and to live in poverty. Those are just a few of the collateral effects of the imposition of a criminal sentence and a jail sentence for possession or distribution of cannabis.

The use of the criminal law to enforce adherence to the regulations of the act also puts young persons at risk of a criminal charge. Even though it's under the YCJA, it can result in a period of closed custody. This has a serious and significant impact on a young person's life that we really need to think about seriously when we're talking about a product like marijuana, knowing that we want to discourage young people from experimenting with this drug, but knowing that in all likelihood some of them will. We want them to avoid the worst consequences of experimentation, that being drawn into the system.

As Mr. Levesque pointed out, there's an anomalous segment of the act in that an adult can actually be in possession of more dried marijuana than a child. This means that a child would actually be more vulnerable to a criminal sanction or to being caught up by the criminal law than an adult would. I suggest that this is somewhat anomalous, because an adult should be more morally culpable than a child. Even though it's clear that the act is trying to discourage children from possessing larger quantities of marijuana, making them more vulnerable to criminal sanction is not the way.

Another significant problem, in my view, exists in the structure of the ticketing provision of the act given that all discretion as to whether a person will be prosecuted under the Criminal Code or the Controlled Drugs and Substances Act, or merely given a ticket, is vested in the discretion of the police, with very few concrete guidelines in the act giving direction for how police should act, and similarly how prosecutors should exercise their discretion as to whether to proceed by indictment or whether to proceed summarily, which would result in a lesser consequence.

If the purpose of potential criminal sanction is to deter deviation from the act—in other words, to take away the black market, to eliminate organized crime, and to discourage people from acting outside of the act—a ticketing option where it's not known in advance to the public whether you'll be prosecuted under the Criminal Code criminally or whether you'll get a ticket means that the law will not be certain to people. The outcome will not be certain. That vagueness, or the uncertainty of the outcome, undermines the stated purpose of the ticketing provision and the use of the criminal law.

We want the law to be consistently known in order that it can be consistently followed. Vesting all of the discretion as to whether someone would get a ticket or a criminal prosecution with police, and without guidance, will result in an uneven exercise of discretion.

There's a great example in existing legislation under the YCJA today. That statute allows specific procedures relating to alternative measures for young persons. Subsection 6(1) of the YCJA directs police officers to consider whether alternative measures are appropriate. They can take no action, issue a warning or caution, or refer the young person to an appropriate program or agency. In my experience, however, reliance upon these pre-charge diversion programs varies from officer to officer. Some officers know of these provisions of the YCJA and offer them to young persons, but many do not, nor do they have any idea what criteria should be invoked to inform the decision whether to offer the diversion or not.

We can see, then, through a statute we already have, that leaving the discretion solely to the officer can result in an uneven application of the law. We also know that indigenous persons are traditionally overrepresented in the criminal justice system. An enforcement system that rests solely within the exercise of discretion, without guidance from the statute, will inevitably result in those who are traditionally overrepresented in the system continuing in that pattern.

There is also, and I believe Mr. Spratt touched on this yesterday, a potential scenario whereby an 18-year-old passing a joint to a younger teen could be exposed to a lengthy sentence as a result of providing marijuana to a young person. In relation to the factors relating to sentence, I would note that the sentencing provisions, which are set out in subclause 15(2), describe, as an aggravating factor, being “in or near any...public place usually frequented by young persons”. There's a similar term contained in the Controlled Drugs and Substances Act.

In my view, this is an overly broad term that is going to be subject to a potential section 7 challenge. In my dealings with prosecutors who deal with this under the CDSA, they are very reluctant to take it to court and defend a constitutional challenge. In my view it's going to be vulnerable to a challenge as being overly broad. A “public place where young persons might be” can constitute just about anywhere.

I would like to point out that subclause 15(4), however, is a provision allowing a judge to adjourn sentencing in order to allow an individual to seek rehabilitation prior to sentence. This is something our judges frequently do anyway, but having it codified in the act is an encouraging sign. It's a worthwhile provision, placing an emphasis in the act on rehabilitation.

In conclusion, I'd like to say that the act is a good step forward. It has many laudable objectives, not the least of which is the protection of public health, the protection of children, and the discouragement of organized crime in drug production and supply.

Resort to the criminal sanction for product that is subject to legislative regulation, however, is always going to present challenges in maintaining proportionality, especially when it exposes young persons to the threat of criminal proceedings.

It's also unclear what effect a conviction under the ticketing system will have on travel, particularly to the U.S., on police clearance sheets, and on employment, or whether it will be considered a prior drug offence for considering other offences. Canadians who choose to plead guilty by way of sending off a ticket in the mail should be aware of the potential collateral consequences that may arise.

Thank you very much.

[The Chair, Liberal, Bill Casey]

Thank you very much to all of you for raising important issues and helping us understand your perspectives on this.

We're going to start with seven-minute rounds of questioning. We'll begin with Mr. Oliver.

[John Oliver, Liberal, Oakville, ON]

Thank you very much, Mr. Chair. Thank you very much for your testimony today and for being here.

The committee's goal when we're through with testimony will be to do a clause-by-clause review of the legislation. A large part of what we're thinking about is what we're hearing. I've listened carefully to your thoughts and recommendations on where the bill is working, in your minds, and where it isn't.

There's been some questions raised at the committee table about whether the status quo is actually better than Bill C-45. I think I've heard all of you say that you support this bill, that it is better than the status quo.

Is there anyone who disagrees, who thinks that the status quo is better than this bill? You've had lots of concerns, but generally do you see it as a right step forward?

[Paul-Matthieu Grondin]

I'll just make a clarification on behalf of the Barreau du Québec. We don't do politics, but once a decision is made to move forward, we try to help as much as possible. That's a precision, maybe.