Evidence of meeting #67 for Health in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was legal.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Lynda Balneaves  Registered Nurse and Medical and Non-Medical Cannabis Researcher, Canadian Nurses Association
Karey Shuhendler  Policy Advisor, Policy, Advocacy and Strategy, Canadian Nurses Association
Serge Melanson  Doctor, New Brunswick Medical Society
Robert Strang  Chief Medical Officer of Health, Nova Scotia Department of Health and Wellness
Michael DeVillaer  Assistant Professor, Policy Analyst, McMaster University, As an Individual
Mark Kleiman  Professor of Public Policy, Marron Institute of Urban Management, New York University, As an Individual
Trina Fraser  Partner, Brazeau Seller LLP
Brenda Baxter  Director General, Workplace Directorate, Labour Program, Department of Employment and Social Development
Norm Keith  Partner, Fasken Martineau DuMoulin LLP
Clara Morin Dal Col  Minister of Health, Métis National Council
Isadore Day  Ontario Regional Chief, Chiefs of Ontario
Wenda Watteyne  Senior Policy Advisor, Métis National Council
David Hammond  Professor, University of Waterloo, School of Public Health and Health Systems, As an Individual
Mike Hammoud  President, Atlantic Convenience Stores Association
Melodie Tilson  Director of Policy, Non-Smokers' Rights Association
Pippa Beck  Senior Policy Analyst, Non-Smokers' Rights Association
Steven Hoffman  Professor, Faculty of Health, Osgoode Hall Law School, York University, As an Individual
Beau Kilmer  Co-Director, RAND Drug Policy Research Center
Kirk Tousaw  Lawyer, Tousaw Law Corporation
Stephen Rolles  Senior Policy Analyst, Transform Drug Policy Foundation

7 p.m.

Conservative

Marilyn Gladu Conservative Sarnia—Lambton, ON

Okay.

Our other option would be to try to somehow get recognition that these treaties are old, and either get cannabis taken off or do some kind of modification. Can you tell me how long that would take and whether you think there's any likelihood of success?

7 p.m.

Professor, Faculty of Health, Osgoode Hall Law School, York University, As an Individual

Dr. Steven Hoffman

I think the reality is that countries have very different views about how best to regulate narcotics, including cannabis. The challenge then is that we have this multilateral treaty that most countries of the world are part of, and as a result of differences, it would probably take quite a bit of time to negotiate a change to that treaty that would allow the current legislation as drafted to be legal under those international treaties.

It can happen. Certainly renegotiating them would be the ideal. If Canada did that, that would be great, because it would give a legal avenue to do what's being proposed. But the reality is that if I'm interested in making sure, not only in the long term but also in the short term, that we're not breaking international law, we would not be able to successfully negotiate a change in the treaty before, for example, a July 1, 2018, deadline.

7 p.m.

Conservative

Marilyn Gladu Conservative Sarnia—Lambton, ON

The only option we would have, then, would be to not legalize marijuana but to do what Amsterdam is doing and basically stop enforcing criminal charges.

7 p.m.

Professor, Faculty of Health, Osgoode Hall Law School, York University, As an Individual

Dr. Steven Hoffman

Canada has several options. The one that's most feasible in terms of both allowing the legalization of cannabis and not breaking international law would be to actually withdraw from the existing treaties. Certainly the government would be able to, for example, decriminalize cannabis. That would be allowed under the treaties. Also, like the Netherlands, the government could decide not to enforce the treaties. That would be allowed under international law. The current proposal is to legalize and regulate cannabis, which would not be possible under the three treaties as currently written.

7 p.m.

Conservative

Marilyn Gladu Conservative Sarnia—Lambton, ON

All right. Thank you.

Another concern of mine has to do with the ability to cross the border into the U.S. We had testimony from various people who indicated that because it's illegal federally in the U.S., any Canadians who have charges or who declare that they have smoked pot will not be allowed to enter into the U.S.

Do any of you know of a potential way around that, or what the solution to that is?

I think Mr. Rolles would like to speak.

7 p.m.

Senior Policy Analyst, Transform Drug Policy Foundation

Stephen Rolles

I have no visual here, so I can't see anything, unfortunately. I'm looking at a black screen. The signal is gone, but I can hear what's going on.

7 p.m.

Conservative

Marilyn Gladu Conservative Sarnia—Lambton, ON

All right. Go ahead.

7 p.m.

Senior Policy Analyst, Transform Drug Policy Foundation

Stephen Rolles

The obvious solution would be for federal legalization to take place in the United States. That would presumably resolve the problem and may not be that far away. Many states have legalized or are about to. The Democratic Party has the path to legalization as part of its policy platform now. Obviously the current administration isn't terribly interested in that, but that issue may resolve itself in time. It can't be that far away before federal legalization takes place in the U.S. Until then, you are behoven to whatever the U.S. determines.

Of course, it's worth remembering that you have borders with some legalization states as well, so I don't know quite how that's going to work. Presumably, it would be quite strange to stop people who had cannabis convictions from going into states where cannabis is legal. There is this quite strange tension between federal and state law as well.

It's a rapidly evolving field, so this may all change very soon.

7:05 p.m.

Conservative

Marilyn Gladu Conservative Sarnia—Lambton, ON

Thank you very much.

Mr. Tousaw, I think you commented that you don't think Ontario's plan to have this government monopoly is workable. Could you expand on that?

7:05 p.m.

Lawyer, Tousaw Law Corporation

Kirk Tousaw

I certainly could. There are a number of practical difficulties with a government monopoly coupled with a federal jurisdiction over production.

Let's take a simple example. Presumably the Government of Ontario is seeking to exert its purchasing power to try to negotiate lower per gram costs of purchasing cannabis from the federally licensed producers. If those federally licensed producers, all of whom currently have direct-to-retail distribution systems in place, are not satisfied with Ontario's offer to purchase the cannabis, they may well just decline to sell to them, in which case consumers in Ontario essentially would have no access to cannabis through Ontario's government monopoly model.

Certainly, if I were running as a licensed producer and Ontario tried to come in and suggest to me that I should sell to them for $3 or $4 a gram while I'm selling direct to consumer in other provinces for $8 to $12 a gram, why would I sell to Ontario? Then you would have a situation in which residents of Ontario either don't have access or have to go through the artificial step of obtaining a doctor's prescription so that they can then access the medical cannabis model, which would give them direct access to the licensed producers. That's one small problem among many.

Another problem is that there's already a very vibrant distribution system operating in the grey market in Ontario. There are probably somewhere in the neighbourhood of 100 to 200 private dispensaries selling cannabis to consumers in Ontario right now. These entities are not just going to disappear, and if you don't transition the black market into the lawful market, then you're setting up a system of competition. The only way to shut down the competition is through the use of, likely, draconian police state tactics. Prohibition hasn't stopped any of these people from doing what they're doing. In fact, prohibition has led directly to the situation we find ourselves in here now, so there's just no practical way.

Here's what I think the fundamental misconception is. I think a lot of people think that legalizing cannabis is the creation of an industry. It's not the creation of an industry. The industry exists. It's vibrant. It's massive. There are literally thousands and thousands of people engaged in working in this industry in every province in this country. There are millions of different products out there. There are very sophisticated businesses working in this sector right now, so we're not creating an industry.

The best we can hope for is to compete with the existing industry. The best way to do that, as I say, is to transition into the legal marketplace those people who already have the expertise and who are already doing the job and doing it quite well and quite successfully. Anything else is likely doomed to failure.

7:05 p.m.

Conservative

Marilyn Gladu Conservative Sarnia—Lambton, ON

I think I'm out of time.

7:05 p.m.

Liberal

The Chair Liberal Bill Casey

Yes. Thanks very much.

Mr. Davies.

7:05 p.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Tousaw, I'm going to be directing most of my questions to you.

I think you very articulately described the problems with criminalization. To give the government credit, I think that's something that it has recognized itself and is some of fundamental rationale behind this bill. I think Prime Minister Trudeau has recognized that criminalization has simply pushed products underground and has led to the creation of an illicit market that doesn't really work.

You've also pointed out, though, that this bill, Bill C-45, essentially retains a criminalized approach to cannabis. There are criminal sanctions for possession over 30 grams. There are criminal sanctions for growing more than four plants. There are criminal sanctions for selling and, in fact, with penalties of up to 14 years. If criminalization doesn't work generally, is it not somewhat misguided to take a quasi-criminal approach to Bill C-45? Are we going to have problems down the road with the maintenance of the criminalized approach in this bill?

7:10 p.m.

Lawyer, Tousaw Law Corporation

Kirk Tousaw

I think we're absolutely going to have problems with the maintenance of the criminalized approach in this bill. I think it's not just a little bit misguided; it's deeply misguided.

I think there are probably some practical and some political reasons why the government has chosen to proceed in this fashion. The political reasons are quite clearly to legalize cannabis and to try to deflect political criticism from the right, typically, but from some aspects of the left, about this process and these steps that we're taking, and therefore to try to do it in the most small-c conservative way possible.

The practical consideration may well be that we know the Supreme Court of Canada in a ruling in the Malmo-Levine case said that Parliament retains the power to prohibit simple possession of cannabis as an aspect of criminal law power. If this is not a criminal law enterprise, it becomes a little less clear what the jurisdictional basis for the federal government's involvement in this area of commerce actually is.

I think those are surmountable obstacles. At the end of the day, I think we need to look at some fundamental fairness. Cannabis is safer than alcohol. Fundamentally, empirically, that is beyond question. Cannabis is safer than tobacco. There's no good reason why we're going to treat cannabis in a way that's significantly stricter than we do alcohol. Alcohol in our society is a source of tremendous harm, and it's also a source of tremendous pleasure and joy. I enjoy a good glass of wine. I like to go to my local vineyards. I'm a regular patron at the small batch, craft-brew pub down the street from my house. I have a keg of their beer in my garage. I'm not anti-alcohol, but I recognize the harm it does to our society.

All those things by the way, the vineyards down the road here in the Cowichan Valley—we have probably 20 wonderful vineyards, many more in the interior of our province—the small craft-brew industry that's growing rapidly here in British Columbia are provincially regulated enterprises, as well they should be. The federal government's role really ought to be minimized in this area, and quite frankly with the greatest respect for what the government has done so far, it hasn't done a very good job regulating access to medical cannabis. The medical cannabis system that was started by court order in 2001 has been struck down by the courts repeatedly in litigation that I'm sure has cost the Government of Canada tens of millions of dollars.

7:10 p.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

I'm going to stop you there because I have a few other questions.

I want to talk about edibles, concentrates, and other non-smokable products. Again, as you know, the government has not included those in this bill. I have received a number of different answers from the government. They say it could happen imminently. It's down the road. They didn't have time to do it. I'm not quite sure.

Given Colorado's experience and Washington's and Alaska's with successful regulatory regimes around edibles, do you see any reason why we shouldn't put edibles and concentrates into the legal framework now? What are the consequences of not doing so?

7:10 p.m.

Lawyer, Tousaw Law Corporation

Kirk Tousaw

There is every reason to put those products into the legal framework. The consequences of not doing so are the continuation of perpetuation of the black market all the way from growing the raw plant material they use to make the products through to the point of sale. We're seeing this even in municipal jurisdictions that are regulating cannabis dispensaries but have taken the step of banning edibles.

People want these products. Consumers want these products. Any time consumers demand a product, someone's going to rise to fill that demand.

7:10 p.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

You described the majority of people involved in the marijuana industry as law-abiding, non-violent, and entrepreneurial. This is the black market we talk about really. There's a tendency to think Hells Angels and Crips as organized crime, but you described a very different picture of the thousands of people who are currently involved in this industry.

You have said we have to remember that virtually all the cannabis produced and sold in this country right now is done so unlawfully, but if the government wants to eliminate that portion of the industry, this bill is not the way to go about doing it.

Can you expand on that? Should we bring those people into the legal market? Does Bill C-45 do that, and if not, what should we do to help facilitate that transition?

7:15 p.m.

Lawyer, Tousaw Law Corporation

Kirk Tousaw

Not only should we do that; we have to do it for this to be successful in eliminating the black market.

The fact of the matter is that there are tens if not hundreds of thousands of people involved in the illicit industry today. I've represented many of these people. I would invite them all to my home to have dinner with my family. They are wonderful, good people. There is no reason for them to be considered or lumped into this category of “organized crime” with its connotations of violence and gang-related activity. That's just not what's going on.

In perhaps thousands of disclosures that I've seen in criminal cases, a small fraction of them contained any evidence of any involvement with what Canadians traditionally believe is organized crime. You've heard from Professor Boyd, I believe. His research in this area shows that 95% of people are not involved with organized crime.

How do we bring them out of the shadows and into the light? We have to make it easy for them to participate. We have to get rid of some of the onerous barriers to access that exist in the medical production system, the unnecessary security requirements, the government's micromanaging and requirement that 800- or 1,000-page standard operating procedures be provided in order to get a licence. Government should be setting baseline standards that private enterprise has to meet. If you meet those standards, you get to participate in the new, licit system.

That's how we do it. It sounds simple because it is simple. We need to get rid of this paradigm of considering people who are in the cannabis industry today as somehow criminals whom we have to prevent from participating in the future. They are not going to stop. Why would they? Prohibition hasn't driven them out of business. Legalization certainly won't.

7:15 p.m.

Liberal

The Chair Liberal Bill Casey

Time is up.

Mr. Oliver.

7:15 p.m.

Liberal

John Oliver Liberal Oakville, ON

Thank you for your testimony here today—Mr. Rolles in particular. It must be early in the morning there on Friday. Thank you for hanging in with us this late into the night or early in the morning on your end. I very much appreciate it.

To come to the RAND Corporation's work, we've had a lot of information on not-for-profit and for-profit corporations, with cases being made either way. Has the RAND Corporation studied this? If you think about our three objectives of getting the product out of the hands of young people, of deterring organized crime, and of ensuring safe, legislated product, has RAND studied that question of profit versus non-profit? Does it have any conclusions on that particular question?

7:15 p.m.

Co-Director, RAND Drug Policy Research Center

Dr. Beau Kilmer

We've done a fair amount of work looking at the various models that jurisdictions could consider if they're thinking about doing something other than prohibiting cannabis supply. Going back, there was an earlier question about the government monopoly. This is where we can learn from all the research that's been done on alcohol. It's very clear that the state government, state monopoly, approach on alcohol is much better for public health than allowing for-profit companies to supply the good.

A lot of this comes down to what we would call Pareto's law, or the 80:20 rule. For alcohol, 20% of users account for 80% of the consumption and expenditure. That's who alcohol companies are targeting. They're targeting those heavy users.

In some work I did for the White House Office of National Drug Control Policy, we found that it was also 20% of the users of cannabis who accounted for 80% of the expenditures. These are your daily and near daily users. If you're going to allow for-profit companies to produce, sell, and advertise, this is who they're going to target. They're going to be focusing on those heavy users. That's one of the things we have to consider if you're going to allow for-profit companies to get involved.

One of the advantages of the state monopoly system is that the state could control the price. It could make it easier to limit the products. It could also potentially limit advertising, although you have to realize—and you see it with gambling, too—that governments do advertise. There are drawbacks with all these options. In the middle of those two options is the not-for-profit approach. Instead of allowing for-profit companies to produce, distribute, and sell, you could just have non-profits, perhaps those with a focus on public health or on child welfare.

At the end of the day, you're helping to create a new legal industry. There have been cannabis transactions in Canada and the United States for decades, but this is your chance to create this new entity. As I hope I made clear in my testimony, we really don't know how this is going to play out, especially with respect to public health. There are a few different approaches. If you go from prohibition all the way to the for-profit model, and then you decide 10 years later you want to try something else, it's going to be a lot harder to put that genie back in the bottle once you have all these companies and their powerful lobbyists.

If you're risk averse, the other approach would be to start with the government monopoly, see how that goes, and then, if you want to change it, maybe move to non-profit. From there, you could potentially move incrementally toward a for-profit approach, especially with respect to all the high-potency products. That's largely what you're going to be seeing. My guess is that's what you're going to see being sold in the stores, unless there are limits on them.

Right now we just don't know much about those health consequences, so I think you're going to want to proceed cautiously.

7:20 p.m.

Liberal

John Oliver Liberal Oakville, ON

Thank you for that.

Mr. Rolles, in terms of edibles, in our current schedule edibles are not legalized. We've heard from some of the people who were working on the drafting of the legislation that the advice from Colorado.... They got into edibles very quickly, and there were a lot of problems and a lot of issues. They advised to go slowly with that, but we've heard from others that, if we don't move into edibles, then the organized crime piece or the black market will continue to supply them, and we're going to be promoting that.

Colorado has since come a long way. They have quite extensive regulations and a regulatory framework around edibles. Do you think it would be wise for Canada to borrow from Colorado? Can you see any downside to do doing that? Would it be a way to move us into edibles faster, do you think?

7:20 p.m.

Senior Policy Analyst, Transform Drug Policy Foundation

Stephen Rolles

I have mixed feelings about it. I think you're right that Colorado probably did move too fast, or the model they put in place for edibles was inadequate and did create problems. But I think it at least showed a success of the regulatory system. It acknowledged those problems and a lot of those rules were then tightened up. Now I think they have single servings only, clearer packaging, markings on the edible products themselves, and a series of other regulations that have helped reduce some of the challenges they faced. I think it's obviously going to be very important to look at that and learn the lessons from it. Washington also had some similar issues.

One of the things we've advocated is that the new legal market shouldn't diverge too far from the existing illegal market in terms of the range of products that is available. To that extent, what I mean is that you wouldn't suddenly open up necessarily a vast array of new products that aren't currently being sold or consumed. If you do that, there could be unpredictable impacts in terms of consumption, behaviours, and potential public health impacts.

A lot of people have argued that edibles are intrinsically less risky than, for example, smoked cannabis because you avoid the risk to lung health that you get from smoke products. I think that's a reasonable argument, but there is a counter-argument that edibles are intrinsically more difficult to titrate and dose because the effects take so much longer to play out.

There are clearly health benefits on one hand, and health risks on the other hand. On balance, I think it's probably positive that edibles would be made available, but I think it's also reasonable to be cautious, particularly in places in Canada where there isn't already a medical edible market. I don't think there's any need to rush into edibles, and I certainly don't think there's any need to rush into concentrates. From my perspective, it's perfectly reasonable to propose that they could be part of, perhaps, a second wave of regulatory expansion once the herbal cannabis market has been established, bedded in, and initial teething problems have been dealt with. I think it's okay to be cautious on this, but I certainly wouldn't suggest banning them.

I think it's also reasonable to point out that if you have herbal cannabis available, turning herbal cannabis into an edible product is not that difficult. You can just bake it in a cake, or you can mix it with some butter. It's not that difficult. There's not some, to my mind, terribly egregious denial of accessibility to edibles if you have access to herbal cannabis.

7:25 p.m.

Liberal

The Chair Liberal Bill Casey

You're time's up.

That completes our first round of questions. We'll now go to five-minute questions and start with Mr. Webber.

7:25 p.m.

Conservative

Len Webber Conservative Calgary Confederation, AB

Thank you, Mr. Chair, and thank you to the presenters as well.

I do concur with my colleague here. I think it's absolutely unacceptable that we are violating UN treaties to pursue the legalization of marijuana in this country. I don't know what the Liberal government is going to do, whether they're going to either withdraw from the treaties or just violate the treaties. I would like to know from that government what they plan on doing.

I have a question for Dr. Hoffman.

I enjoyed your presentation, the different options that we have. Convincing other countries to renegotiate sounds impossible, according to Mr. Rolles. Creative lawyering.... Of course, this is a big scientific experiment here in this country. Perhaps we can pursue that. As you said, we need major research dollars to make that happen. It obviously looks like we are not going to comply. We are violating UN treaties. We'll either withdraw.... What will the ramifications be, the consequences to our country, of violating these UN treaties?