Thank you and good morning.
In a moment, I am going to take you to five recommended changes to the legislation. I have advised and represented employers and employer associations on this issue for many years and have written a book on the subject of alcohol and drugs in the workplace. I think these changes are essential if in fact recreational marijuana is to be legalized on July 1, 2018, as the bill proposes. Essentially, at the present time, there is no actual or proposed legislative framework that will be necessary to prevent this amendment from resulting in injury, accident, and death.
I will give a bit of background. I filed this in the brief, and the footnotes are available for the facts I'll provide you with.
In Canada, in 2015, the most recent year for which numbers are available, there were more than 232,000 lost-time accidents with 852 fatalities. There are approximately just under 3,000 motor vehicle fatalities every year in Canada. What we know from the Colorado experience is that, at least in the first full year after recreational cannabis was legalized, the number of motor vehicle fatalities, including transportation workers, increased by 225%. It more than doubled. Unless there is a rigorous legislative framework added, which is not yet proposed in the legislation, tragedy will be the result of this amendment allowing recreational marijuana to be legal in Canada.
The other statistics that employers are concerned about are as follows. Ninety-three per cent of businesses deal currently with substance abuse in some form on the part of their workers. This is a serious and important issue. More than 38% of workers' compensation claims are related to alcohol or drug abuse. The risk of a worker having an injury—again, the footnotes provide the references for the authority—is 2.7 times higher if they're involved in alcohol or substance abuse. The presumption of my submission is that the legalization of recreational marijuana will not only increase social acceptance and use, it will also exacerbate what my clients are seeing already, and that is an increased use with the view that legalization is around the corner.
The courts, in fact the chief justice when I was arguing the Irving Pulp & Paper case, suggested to me and other counsel in that random alcohol testing case that the legislature and Parliament is the better place to establish a comprehensive framework than to deal with this case by case, litigated in the courts and before arbitrators. Let me provide you—and, again, I hope that the brief has been provided to members of the committee—with the five recommendations in our submission that we would ask you to consider. They are essential to making sure that workplaces, workers, and the public affected by workers are safe.
First, the Canada Labour Code obviously deals only with a limited number of workers, about 8% or 9%, but there is a duty that exists in every other provincial statute, and that is a duty to protect worker health and safety. Workers also have duties, but the first recommendation is to acknowledge the reality that exists today and will be exacerbated by the legalization of marijuana. There is no current prohibition against a worker coming to work under the influence of cannabis or another drug, so the first requested recommendation is to prohibit workers from coming to work under the influence of cannabis or other drugs, unless they have medical authorization, and thereafter with consultation by the employer. That's a common-sense suggestion that we think should be considered.
Second, safety sensitive positions are discussed and debated without a legal definition. A safety sensitive job is obviously a pilot who takes us in the skies and has to be sober, a truck driver driving on an international or interprovincial trucking route, which is therefore federally regulated, or perhaps a provincially regulated tower crane operator. A safety sensitive position has yet to be defined under the Canada Labour Code. It needs to be, because things flow from that. Greater scrutiny and greater regulatory oversight need to be applied to safety sensitive positions, so our second recommendation is a definition for the term “safety sensitive position”.
Third, there needs to be a positive duty, we submit, for workers, supervisors, managers, who have a lawful prescription for medical marijuana to deal with a medical condition, or other drugs, to report that to the employer if they fall within the safety sensitive positions. There needs to be a connection there for disclosure, transparency, and later I'll make the point, protection of those workers to make sure they're not unfairly discriminated against.
Fourth, and this might be the most controversial of what I'm going to recommend, is the idea of testing for workers, randomly, for cannabis and other drugs if they occupy a safety sensitive position. The law, as you may know, has been set not by Parliament's leadership but by the courts reactively in case-by-case analyses.
The most recent decision on alcohol and drug testing is the Irving Pulp & Paper case. I was involved for an intervenor for that file. That's where the chief justice made the comment, “Mr. Keith, wouldn't it be better if the legislature took leadership in this issue to set a legislative framework as opposed to reacting case by case?” I couldn't disagree with the now former chief justice. But they went on to hold that random alcohol testing, where there's a clear legal Criminal Code threshold for impairment was not permitted in a dangerous pulp and paper place down in New Brunswick that was three blocks from a public school, because there weren't enough cases of people causing accidents when they were drunk. That essentially is the employer's view of the ruling, in Irving Pulp & Paper. It's troubling.
However, Irving Pulp & Paper says you can test if somebody does have an accident, post-incident, or if the employer determines that they are impaired at work. Why do you have to wait? Why can't you, as we do with RIDE programs around holiday season, have a deterrent and detection process of random testing in workplaces? The suggestion is for only safety sensitive positions, so there's not an over-inclusive net being cast.
Last, to complement this and the reporting obligation, we're recommending that the Canada Labour Code be amended to require workers to report if they're in fact taking drugs lawfully. This is an accommodation provision. Some might argue that there is implied case law about the duty to accommodate, and that's true, there is.
I think clarity is part of a comprehensive legislative framework to give employers and unions the legal obligation to accommodate workers who declare that they have a dependency or an addiction problem and they also fit within the safety sensitive regime. If the employee self-declares they have a problem, they're protected. They have job security, but they'll be assisted in hopefully a constructive rehabilitation program.
I think the requirement, as in Elk Valley Coal, the Supreme Court decision dealing with the duty to accommodate, should be if you in fact self-disclose before you cause the accident, because after that, there is accountability that the employer needs to be able to invoke for the worker.
To wrap up, hopefully these five recommendations will be looked at as part of a more comprehensive workplace safety legislative framework that will be fair to workers, protect workers from themselves, from other workers, and reduce the legal risks that employers are unfairly given when in fact they're blamed for not preventing a worker for coming to work sober and safe.
Clearly this legislation is controversial, to legalize recreational marijuana. I'm not commenting on that, but given that it's a very complex social experiment, assuming the government goes ahead with it, then the workplace safety issues and the recommendations we propose hopefully can be well received.