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

11:20 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

In my opinion, sir, no. The companion bill seems to assume that it's only the public that might be harmed or killed by somebody under the influence of cannabis. It ignores every working Canadian who goes to work every day, especially in and around safety sensitive positions.

Since there is no threshold measurement for cannabis impairment yet, and the technology may be evolving, it's difficult to always persuade people that you can do a random test in the workplace that's meaningful, but the TTC has done it. The courts have upheld the random TTC alcohol and drug testing program, but they're in litigation, and their litigation may go for years. If it goes all the way to the Supreme Court of Canada, it may take another decade.

Workplace stakeholders need a framework, and if it's a federal bill that legalizes recreational cannabis, it only makes sense that, even though federal jurisdiction doesn't extend over all workplaces, the federal government should also provide leadership for the serious safety risks. I could bore you with example after example. I've got three cases currently that I'm retained on in the courts where somebody died because they were impaired. In all cases it's the employer who gets blamed.

There needs to be a more rigorous review, and I would suggest these amendments to the Canada Labour Code specifically for workplace safety. The bill on the traffic side deals with public safety to some extent and a little bit indirectly for transportation workers' workplace safety, but you don't want to be walking near a construction site where there's a tower crane where a worker is not screened or worries about cheating the system by being stoned at work and dropping a concrete bucket on somebody's head.

It's a terrible thought, and I deal with it more than I'd like to in my practice, and to just say that under the general duty clause for employers, you have to find a way to do it, when the courts are not generally permitting random testing, I think misses the point that there is already increased use and acceptance, especially in the construction industry in Ontario. It will get more prevalent as you have legality and as you have increased social acceptance. I don't think current legislation addresses the concerns that I have raised.

11:20 a.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

I take your point regarding the concerns for safety in the workplace. There is nothing in this legislation that legalizes impairment. In every instance, every case, where it was illegal to operate some piece of equipment or machinery or vehicle impaired, that law is unaffected by this.

I'm curious why you need additional protection or additional powers at this point that are not already present. What do you do with people who come to work impaired under prescription drugs, lack of sleep, or alcohol?

11:20 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

I'm not sure they're all fairly comparable to being impaired by cannabis, but an employer has an overarching duty, as I mentioned in my brief, under the Canada Labour Code and every provincial statute, to have a safe workplace for all workers. That's fine and that has been there for a long time.

If you don't have the tools to deter and detect, it's like putting up speeding signs on the 401 that you can't go faster and having no enforcement. You will arrest people after there's an accident, an injury or a death, and you will charge people, so there's a little bit of enforcement, but if there's no proactive enforcement, as there needs to be on our roads, it's the same thing. You need better proactive tools with the greater likelihood of increased use and social acceptance of cannabis, and that, I think, reasonably and fairly falls within random testing, the most controversial of the suggestions.

The United States does it. Europe does it. The Far East does it. We're out of step with most modern liberal democracies by being overly worried about implications and privacy concerns. Those are concerns that can and should be respected in any testing system that's legislatively approved, and it should not be permitted, a legislative system that allows testing for employers to run roughshod or to use that for ulterior motives.

I don't see why the five suggestions we've made aren't essentially common sense if you have a more drug tolerant, legalization kind of society, which we're moving, apparently, towards. Those are additional thoughts.

11:25 a.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

I guess I wouldn't characterize it so much as a drug tolerance, but a recognition that criminal sanctions don't work to control drugs and control the markets.

However, I'm still confused a bit. I take your points that certainly the Labour Code needs to address some of this to some degree. People operating a forklift, operating trucks and so forth, in the construction area are already subjected to limitations. They would be affected by Bill C-46, right?

11:25 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

With respect, if they're on a private property, they wouldn't.

11:25 a.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Operating a motor vehicle while impaired is illegal no matter where it happens.

11:25 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

But it won't be.... All I'm saying is that on a practical level, it will have no benefit or effect.

11:25 a.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Okay.

September 14th, 2017 / 11:25 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

The obligation is still going to be the overriding obligation of the employer to have a safe workplace. If an employer thinks somebody is impaired, are they going to call the police to their workplace to do their job for them? The labour regulator, federal or provincial, will intervene. There will be a union grievance. The matter will be before the courts for years.

If there's not a legislative framework that, from a common-sense perspective, says we want workers to be safe and sober, and we need some tools to do it, that's really all the suggestion is.

I don't think the goal that you're suggesting is any different from mine, but I don't think the companion legislation, Bill C-46, addresses these suggestions that we've made about the Canada Labour Code amendments.

11:25 a.m.

Liberal

The Chair Liberal Bill Casey

The time is up.

Dr. Carrie.

11:25 a.m.

Conservative

Colin Carrie Conservative Oshawa, ON

Again, this is a great panel. I wish I had more time with you.

I'd like to start off with Mr. Keith.

I'm from Oshawa, and we have a lot of unions, a lot of labour. I was happy that you brought these things forward because it parrots what I'm hearing from labour interests as well.

There are a few other things that they've brought up with me that you haven't included. These are things along the lines of blood testing, DNA collection, who would own that management cost, who pays for compliance.

There are new technologies. I guess there are other technologies for alcohol, where you can actually put it on heavy equipment. A person has to blow into it and then it will operate. If these new technologies come out, again, who pays for that? With regard to the data collected, who owns that? There are a lot of questions with this piece of legislation. You pointed out just a few of the inadequacies.

You quite rightly say that it's a complex social experiment, but it's also a poorly thought out implementation of public policy. I think by having witnesses here today, it's important that we can look at it and say that the responsibility of government is the health and safety of Canadians. This panel is I think the only one we have on looking specifically at workers.

I will ask you a few things here. We know that with smoking cannabis over the weekend, it can be in your system for days. We've heard that it can be a cumulative effect, even weeks later. Will this be problematic if mandatory testing becomes a standard in the workplace? Again, who is going to define impairment? You mentioned the blood levels. There are a lot of inconsistencies there.

Will it not be hard to punish or reprimand employees for having cannabis in their system for something they were doing legally over the weekend or in the evening in the privacy of their own home? Can you give us some advice on how that should be managed?

11:30 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

I'm not a doctor and I don't even play one on TV, but I've done a lot of reading in the area.

What I'd encourage the committee to look at is the injunction decision of the Honourable Justice Frank Marrocco on the TTC policy “fitness for duty”. What it essentially does is it takes a consensus of medical experts on cannabis impairment from around the world, gets a consensus statistical average of what the readings are of THC—tetrahydrocannabinol, the active psychoactive ingredient in marijuana and hashish—and then doubles it. It says that anything below that threshold is considered a negative; everything at or above it is a positive.

To protect the privacy concerns of workers and union leaders, the results are not disclosed to the employer. This is the standard for all testing in Canada, limited as it is.

Then the results are reviewed by a medical review officer, and sometimes there is a legitimate explanation and/or a medical authorization—in the vernacular code, a prescription—and a conversation takes place between the worker and the medical review officer or doctor. It is only after the assessment is done that, to protect the privacy and the medical personal interests of the worker, it may be reported as a positive to the employer.

If the employer gets a positive result, the worker—with a union representative, if they're unionized—gets to advise or self-declare, if they have a dependency or an addiction. If they do, human rights legislation across Canada requires the employer to treat it as a disability, and they are accommodated to the point of undue hardship, which is fancy legal talk for saying they're sent to rehab. If they recover and they're sober, they can come back.

That often is happening today. The problem, however, is that there is no detection or deterrent effect because of the inability to have random testing, which is the law, set down by the Supreme Court of Canada in Irving that is being tested by the TTC.

All of that litigation—

11:30 a.m.

Conservative

Colin Carrie Conservative Oshawa, ON

Who covers the cost of all that?

11:30 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

From talking to the chief safety officer at the TTC, I understand that the employer bears the entire cost of the program, so it's you and I, as TTC riders, if we're in Toronto. It's the public.

11:30 a.m.

Conservative

Colin Carrie Conservative Oshawa, ON

All right.

You mentioned safety sensitive positions, but I've heard concerns about people even in such positions as operating forklifts, taxis, school buses. What my colleague was saying about intoxication was that with alcohol, breathalyzers are inexpensive and you get a really quick result with them, but for cannabis, right now there's no real framework. Even the swab tests that are yes or no will only tell whether it's in the blood. Then you have to get a blood test for intoxication levels.

I was wondering, then, what is going to have to be done differently in the workplaces, especially those that require operation of heavy machinery? What will they have to do differently to ensure the safety of employees?

11:30 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

A lot of statistics, largely out of the U.S., indicate that as soon as you have a random alcohol testing program in place, use goes down by more than 50%. Allowing testing will reduce the risk for everybody, period, but then you get to the problem about somebody who is being tested. Is the employer going to pay for it? Generally, yes they are, if they want it.

Should they be authorized to test everybody? Our suggestion is no, it's just in the case of a safety sensitive position, in other words, a position in which somebody such as a TTC bus driver or a pilot can injure themselves seriously, or others, or the public.

The Sunwing case, which has been very public, is a disturbing one, because it took flight attendants to turn in a drunken, incapacitated pilot who was not otherwise subject to testing. None of us wants to think of getting on a flight when we don't have confidence in the flight crew.

In terms of the mechanism, I think it's going to be a choice that employers make, when they have dangerous workplaces with safety sensitive positions. Employers, however, will probably choose to invest and bear that cost because of the cost of injury in workers' compensation costs, the moral imperative, the loss of a good worker, but also the risk of prosecution.

I'm not sure whether you're aware of the Metron Construction case in which four workers died, three of them impaired heavily with THC, on Christmas Eve 2009. The employer was punished by a trial judge; they received a large fine of $200,000. They were further punished because they failed to prevent workers from being stoned on the job. That's what the court of appeal said; that was one of the three reasons in the Metron case. I've given you the citation.

In other words, an employer who doesn't prevent workers from coming to work when not sober and safe has a real financial risk. That's part of the motivation of a good employer: they care about their workers; they care about the public; they don't want to be harmed. They also care, however, about their bottom line: it's bad business for workers to come to work under the influence of cannabis or other drugs and cause accidents, injuries, or worse.

11:35 a.m.

Conservative

Colin Carrie Conservative Oshawa, ON

In Canada today, though, can you force me to give my blood for testing?

11:35 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

No. The Supreme Court of Canada has said that except in extremely rare circumstances, you can't do that—or not unless the legislation was amended. But I don't think that's the main point of testing. People get a little bent out of shape about testing, especially on the union side of the debate. The main point is to deter, to discourage, to say, “We don't want you to come to work under the influence, and by the way, you might be subject to a random test. You don't know when it's coming, so just don't do it. Please don't do it.”

But like the speeding sign on the 401 or 403 or wherever you're driving in Canada, it's not enough. You need to know that there's a police officer with a radar gun who might catch you randomly and say, “Slow down. Stop. And here's your reminder: please pay the ticket.”

11:35 a.m.

Liberal

The Chair Liberal Bill Casey

Your time is up.

Mr. Davies.

11:35 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Thank you to the witnesses for being here.

Mr. Keith, isn't the reason that the courts strike down random testing regimes, even in safety sensitive positions, the fact that they find they violate Canadians' constitutional rights?

11:35 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

No. The decision in Irving Pulp & Paper essentially said that the employer had two choices if they wanted a random test. This is only a random alcohol testing case. One, you either consult with and get agreement from the union...and the union said no. I'll come back to that point. It was an unfortunate lack of union leadership, from my opinion on the issue. They said that if you don't get union agreement, then you have to be able to prove that your testing will be rationally connected to the risk associated with the particular workplace.

At Irving I think there were three accidents caused by people drinking over the course of five or six years. That wasn't enough. In the Suncor case in Alberta—soon to be released by the Alberta Court of Appeal—there were three fatalities in eight accidents in a 10-year period. The arbitration board said that was not enough.

What the courts are saying is that the unions' privacy interest say.... It's vague, somewhat reliant upon section 8 of the charter, but because it's not stayed action, employer versus worker, it's not a constitutional issue, in my opinion. They're saying that you have to have more evidence, more accidents, more property damage, and possibly more death before you get to implement unilaterally that kind of implementation. There's a great dissent by a court of appeal justice in Alberta who said that this is foolishness. This is madness. Why are we going to have to have a body count, an injury count, of workers before we can protect workers?

11:35 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Again, though, that's a dissent. The majority didn't agree with that.

11:35 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

You're right.

11:35 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

I think you've said that the problem is that the employer could not produce enough evidence to establish a rational connection between the testing and the purposes.

11:35 a.m.

Partner, Fasken Martineau DuMoulin LLP

Norm Keith

That was the ruling.