Health Committee on Sept. 14th, 2017

[Dr. Steven Hoffman]

I really would love to emphasize that the consequences actually are quite severe in the sense that it's not just our reputation. It's not just Canada's standing on the global international scene. If we violate international law we are actually undermining the best mechanism we have to get countries to work together and solve some of the biggest challenges we face in the world. One only needs to think about examples like serious use of chemical weapons, or North Korea testing nuclear weapons, or even closer to home, the United States imposing illegal trade barriers against softwood lumber. Canada wants to be in a position that we are able to rely on our fellow countries, our partners around the world, to follow these rules that make Canadians safer, that make Canadian businesses prosper, yet it's very difficult for Canada to be taking moral stances on international laws if Canada is also violating them.

In my mind, it's very clear that Canada can't pick and choose which international treaties to follow without encouraging other countries to do the same. When one thinks of the global context of this, I know it's just one law, it's just to do with cannabis, it's just drugs, but I think Canadians, and I think all of you probably do care about international law when it comes to things like nuclear weapons, when it comes to human rights abuses. We can't pick and choose without encouraging other countries to do the same.

[The Chair, Liberal, Bill Casey]

Mr. Rolles, go ahead.

[Stephen Rolles]

I agree with the legal analysis there that Canada would be in non-compliance with the cannabis section of the treaties, but I don't think withdrawal is a way to respect the treaty system. I think it's far more disrespectful to simply withdraw from the treaty system than to make a principled argument that the treaties are not serving the interests of member states and that they need to be modernized to bring them into line with the needs of member states. The power of the treaty system is essentially the consensus of member states that support it. That consensus is crumbling, and I don't think that in any way it is immoral to move into technical non-compliance of one element of these treaties, if a case is made that it is being done in order to serve higher UN goals of human rights, public health, development and security issues. I think the case can be made that it is in defence of the higher goals of the charter that one part of one treaty is moving into technical non-compliance.

Perhaps I can read a sentence from the Global Commission on Drug Policy, which is a group of former heads of state and UN luminaries, including Louise Arbour, who is the Canadian former UN High Commissioner For Human Rights. It says:

Unilateral defections from the drug treaties are undesirable from the perspective of international relations and a system built on consensus. Yet the integrity of that very system is not served in the long run by dogmatic adherence to an outdated and dysfunctional normative framework. The evolution of legal systems to account for changing circumstances is fundamental to their survival and utility, and the regulatory experiments being pursued by various states are acting as a catalyst for this process. Indeed, respect for the rule of law requires challenging those laws that are generating harm or that are ineffective.

I would also point to Uruguay that by common consent has moved into a superb position of non-compliance. The sky has not fallen. The UN treaty system has not collapsed. Uruguay is not seen as a pariah on international human rights or at the UN. It still has a great deal of respect. It has a long history of respecting human rights law and being a very great advocate for the treaty system, just as Canada does.

I think there's a little bit of over-dramatization here, that somehow the whole system would cave in if you move into a technical non-compliance for a period, especially if you're making a clear moral case on UN grounds based on higher UN principles, and you are clearly showing an effort to resolve the tensions that have emerged. I would caution in regard to some of this rather over-dramatizing situation. It needn't be this terrible cataclysmic situation. You can progress things without the whole system collapsing. I just wouldn't worry quite as much as some of the committee members seem to be doing.

[The Chair, Liberal, Bill Casey]

The time's up.

Now we go to Dr. Eyolfson.

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

Thank you very much, Chair.

Thank you all for coming.

Just as a bit of an aside on international law, yes, you can be banned from the United States for saying you smoke pot, but—and I just looked this up—you can be banned from the United States for admitting to be a member of the Communist Party. That is still the law today, so whatever that says....

Mr. Tousaw, keep in mind that I'm coming from the point of view of a staunch supporter of the legalization of cannabis, but I have to take exception to something you said about those who participate in the illegal market or the black market. Again, I cannot paint all with the same brush—there are some gentle people who are just simply entrepreneurs—but I spent 17 years practising emergency medicine in Winnipeg when it had the dubious distinction of being the murder capital of Canada. I looked after an unconscionable amount of violence including gunshot wounds and stab wounds. A large proportion of that was in fact the black market in drugs and most of that was cannabis, and that was all verified. So I think we have to caution our judgment as to what we call the black market and understand there is a very dark and dangerous element to this, and this is part of what we want to control and undermine.

One of the things you said in your submission was that you did not want a government monopoly. You said that Ontario's plan was very ill advised. However, experience in Colorado and Washington has shown that, when you keep the price low, you can undercut the black market and in fact that's working very well. In Colorado at least 70% of the market is now legitimate, and that may be trending close to 90%. If you had a government program that was not profit-driven, would that not be a more efficient vehicle to sell this in a way that's not profit-driven and therefore can keep the price low and undermine the illegal market?

[Kirk Tousaw]

Let me just point out that the Colorado system is a system of private enterprise, not a government monopoly, so that's—

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

However, on that I should just point out that this was not by choice, but so they wouldn't violate federal law. But please go on.

[Kirk Tousaw]

It was by choice of the voter.

Be that as it may, I think government doesn't have a particularly good track record of competing with the marketplace. Here's the difficulty. Many of these suggestions may be all well and good if we were starting with a tabula rasa, if we were at a clean slate talking about something that had never been done before and never been seen before. But we have an existing massive industry in cannabis in this country, and the government monopoly is going to compete with that industry. It can either compete on price and customer service and attractiveness, which is going to require some advertising, something that the government may not want to do; or it can compete using the police forces to try to enforce its monopoly, which is something that is going to offend the charter and I think should offend anybody who believes in a free and democratic society. Many of these suggestions might make sense in a vacuum, but they don't make sense on the ground as we sit here and stand here today.

It's sort of like talking about the treaties. Canada has been in technical non-compliance with these treaties since it began to sell marijuana by not collecting it through private enterprise since at least 2005. We're already in violation of all these treaties. These treaties are also responsible for creating a paradigm of prohibition that's led to the international black markets in all these drugs, and devastation, destruction, and death across the world, including the opioid epidemic that's ongoing everywhere in this world and in particular in this country and in the United States.

We're not starting from a blank slate. We're starting from trying to claw our way back from a failed system that does a tremendous amount of damage today, and a system that—

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

Sir, if I may interject, on the opioid crisis, a huge contributor to that was over-advertising by a private company that was selling OxyContin.

[Kirk Tousaw]

The over-prescription of opioids is definitely a big contributor, but the reason people are dropping dead in the streets is not that. The reason people are dropping dead in the streets is that they can't get clean product of known potency because of prohibition.

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

Thank you. I have no further questions.

[The Chair, Liberal, Bill Casey]

Now we go to Ms. Gladu.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Thank you, Chair.

Mr. Hoffman, which trade deals may be jeopardized if we breach these treaties?

[Dr. Steven Hoffman]

When it comes to trade, I think what's most implicated by the treaties is the trade in medicines in the sense that it was mentioned that these treaties do govern not only the illegal use of narcotics but also their medical use. From that perspective that is one advantage of the treaties as they exist, and the treaties do regulate the trade of medicines quite well.

I'd be happy to look into this and happy to get back to the committee about other treaties, but when we talk about these treaties and trade often what we're talking about is trade in medicines.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

I'd appreciate it if you could, and to Mr. Rolles' comments I'll let Canadians decide how dramatic they think it is that Canada will breach these treaties, especially after I remember my NDP colleagues calling for action on this even in 2016, already being aware that the deadlines were approaching.

Mr. Tousaw, you made a comment about the home-grow aspects of Bill C-45, especially the very prescriptive charges around heights of plants and that sort of thing, that they violated or that you thought they would get a court challenge under section 7 of the charter. Can you elaborate on that a bit?

[Kirk Tousaw]

Section 7 of the charter requires Canadians not to be deprived of their liberty in particular by laws that are arbitrary, overbroad, or produce grossly disproportionate consequences. If you have a person in a household, say of one and they are able to grow four plants legally, and then you have a person in a household with two adults they can still only grow four plants legally but let's say they grow six, their liberty could be infringed because of that four plant per household restriction. That seems to me to be utterly arbitrary, and it certainly captures conduct that is overbroad. In other words, it does nothing to further the goals of the legislation, the purposes of the legislation. It unjustly and unnecessarily criminalizes Canadians who engage in that conduct.

If we have these arbitrary limits in place, the first person stopped with 31 grams instead of 30 grams in their pocket, the first person who grew five plants instead of four, I'm happy to take those cases and I expect to win those cases. I don't want to continue to fight these battles in court. I thought that by legalizing cannabis I'd be out of a job as a criminal defence lawyer, but they are subject to challenge. I think the challenges are easy to make out. What's the point? You can brew as much beer in your basement as you want and give it away to your friends. Why should cannabis be any different? It's safer and, frankly, it's easier to make.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

It's certainly problematic.

I have a question about second-hand smoke. We had some discussions about what to do about second-hand smoke. Is anybody aware of anybody in any other jurisdiction internationally that has a regulation with respect to second-hand smoke?

[A voice]

Pertaining to cannabis...?

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Yes, or tobacco that we could pattern something after.

[Kirk Tousaw]

Most legal jurisdictions ban the public consumption of cannabis. That's an argument I think in favour of designated consumption spots, like vapour lounges. I think that's an important component of legalizing cannabis. You have to give people a place to consume it socially.

[Dr. Beau Kilmer]

California is in the process of legalizing, and it's supposed to go live in early 2018. One of the aspects of California's law, which is different from what we see in Washington and in Colorado, is that California is going to allow for marijuana lounges, so on-premises consumption.

From a public health perspective it's unclear about how this is going to play out, especially when we talk about impaired driving. If you have a bunch of people who used to consume at home and now they're consuming in a marijuana lounge that could increase the number of people driving under the influence of cannabis. On the other hand, if you had people who used to just go to the bar and get drunk and drive and now they're just going to the marijuana lounge and getting stoned and driving home, that would probably be a net win for society because we know that the bulk of the research suggests that people who are driving drunk tend to get in more accidents than those who are driving stoned, but still, the bulk of the research suggests that driving stoned is worse than driving sober.

One of the interesting things is going to be what happens to people who drive under the influence of both alcohol and marijuana. That's where there's a really significant risk in increasing the probability of getting into an accident. It's unclear about how these on-premises businesses are going to influence that. That's why I think public policy can play an important role in thinking about whether or not to allow this and allow for zoning.

One of the things is that the provinces may likely be making decisions about this. One of the things we could do is to hold off on that and watch what happens in California and learn from their experiences. They're also going to be dealing with this indoor air law. It's unclear to me what's going to happen. Will you able to vape inside, maybe dab inside, but if you want to smoke a joint you'll have to go outside? I'm not sure how that's going to play out, and I expect there's going to be a fair amount of variation in California that Canada could learn from.

[The Chair, Liberal, Bill Casey]

Thank you very much. The time is up.

Now we'll go to Mr. McKinnon.

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

Thank you, Chair.

I'll start my questions with Mr. Kilmer. This goes along the lines of earlier questions. For edibles, what are the impacts of not putting appropriate controls in place at the outset? What will happen to the market? Are we going to be able to control it later?

Also, what do you think about the cookie-cutter approach, copying and pasting the Colorado approach to edibles?

[Dr. Beau Kilmer]

When we're talking about edibles, people think there are flowers and there are edibles, but when we begin thinking about non-flower products, we also have to begin thinking about the concentrates and waxes. There can be up to 80% THC in the vape pens. I want to make it very clear that we don't know much about the health consequences. I know a lot of people might be using them, but we really don't know much about the health consequences, either the benefits or the risks of these particular products.

One of the issues you have to consider if you're going to allow for-profit companies to produce and sell these products and you don't put any limits on it is that if, say, in five or 10 years from now you decide maybe you don't necessarily want to allow a certain product or you don't want to allow flavouring in the vape pens, it's a lot harder to crack down on those products once the industry is already in place, and the lobbyists are powerful.

One approach here would be to take it very slowly and maybe not necessarily allow some of these products. Yes, there might be demand for them on the black market, but this is the trade-off that I was talking about in that if your only goal is to reduce the size of the illicit market, you wouldn't have many regulations. You'd want to have the price go as low as possible to drive out all the producers. However, there are some potential public health consequences associated with that in terms of increasing cannabis consumption and also the potential for an increase in cannabis-use disorder. That's the tension there.

For example, if you do limit products, yes, there might still be demand for that in the illicit market, but at least you won't see it in stores or advertised. It's a trade-off. Much of this comes down to people's values and preferences for risk and what their priorities are. If your priority is public health, you'd want to take it very slowly.

With respect a cookie-cutter approach and doing what Colorado did, I would step back and look at what other jurisdictions are doing as well. Colorado had more of a wait-and-see approach, and they don't necessarily allow as many products as are allowed in Washington state. In fact, there is also variation in terms of the amount of THC that can be allowed in a single serving. There are a couple of different states where the limit is at 10 milligrams, and in two other states, the limit is at five milligrams. I don't know if much research has looked at that.

Therefore, I would not necessarily just take what Colorado has done and apply it in Canada. I would look at what has been happening in the other states as well, and take a very slow approach. If you're going to allow for-profit companies to get involved, it's going to be a lot harder to make changes down the line, so take it slowly.

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

Thank you.

Mr. Tousaw, I want to drill down a little more on what Dr. Eyolfson said about black market activity. I represent the Lower Mainland riding of Coquitlam—Port Coquitlam. There is a great deal of gang-related violence in the Lower Mainland and there is a public perception that it's related to the illicit pot market. Would you say that's an incorrect perception? If so, what do you think is driving that activity?