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.
NDP
Don Davies NDP Vancouver Kingsway, BC
That's based on extensive evidence, full presentation, all the way to the Supreme Court of Canada.
NDP
Don Davies NDP Vancouver Kingsway, BC
You anticipated my next question, because of course the charter only applies to governmental actors, and these were private sector employers. Let's move to privacy. I mean, as parliamentarians we are seeking a balance here, but it's also our role to nurture and cherish Canadians' well-established privacy rights. As you pointed out, that was an issue as well in the case, that before an employer has the ability to randomly take a bodily fluid from a person, there has to be.... In fact the burden is on the employer to establish that there is a sufficient ground for that. Frankly, the employers in this country have not been able to establish that on an ongoing basis, at least according to the Supreme Court of Canada.
I think my colleague asked you about the problems of distinguishing between present impairment and past use, which is, I understand, a particular issue with cannabis. Alcohol is a bit different, because you can get a blood alcohol reading that is a reliable measure of present impairment.
Is it not the case, Mr. Keith, that with cannabis, it measures the...? I can't remember the term..
NDP
Don Davies NDP Vancouver Kingsway, BC
Well, the substance is broken down by THC in the blood, so you can't really get an effective measurement of present impairment versus prior use. Someone could smoke a joint on the weekend, come to work on Monday morning, be tested, and what would that tell you?
Partner, Fasken Martineau DuMoulin LLP
I'm not a medical expert. The oral fluid testing technology is advanced beyond what you've just suggested as a methodology. Certainly THC, depending on how much you consume, can stay in the blood for 21 days. That's clear. The common rule of thumb is that you can sleep off the cannabis hangover. I'm told by doctors that this is true generally but not always. Rarely, though, is cannabis consumed without alcohol or other drugs. Mr. Stewart, who had his accident at Elk Valley Coal, had to smoke a few marijuana joints before he came to work, he said, because it would take the edge off the cocaine. They often go together.
It's a complicated issue. With regard to the TTC policy, and I'm not an advocate or here as counsel for the TTC, their program does two samples, for privacy and reliability, just like drug testing in—
Partner, Fasken Martineau DuMoulin LLP
Right. I'm going to address that. Sorry, I'm not getting around to it as quickly as I should.
NDP
Partner, Fasken Martineau DuMoulin LLP
The oral fluid testing can measure present impairment. That's my understanding.
NDP
Don Davies NDP Vancouver Kingsway, BC
I see.
Ms. Fraser, you articulated well the danger and negative consequences of keeping cannabis products illegal. If I have your evidence correct, you suggested that this would apply to edibles, concentrates, and other non-smokable products. Given that Colorado, Washington, and Alaska have all established effective regimes for regulating those products, do you see any reason why this legislation before Parliament shouldn't be amended to include edibles and concentrates, with the appropriate regulations concerning packaging, labelling, concentration, etc., as Colorado has done?
Partner, Brazeau Seller LLP
It should be.
My understanding is that this is the intention, and it's more of a timing issue than anything else as to why that's not included right now. My concern is that throwing millions of dollars at enforcement is not going to solve the problem of the black market and dispensaries that exist right now. We need to look at why they exist. They exist for a number of reasons. They provide enhanced access to cannabis products to people who want or need them, and they provide the type and array of products that people want.
By limiting the availability of cannabis products legally to just dried cannabis and cannabis oil, we are still leaving a wide array of products for which there is clearly a demand, and that the government is not going to be providing through legal channels. People will continue to seek them and access them through illegal channels. Legalization must include a wider array of products. Yes, the concerns about consumption by children or accidental overdosing can all be addressed through prudent packaging, labelling, and product-type regulations. We need to get to work on that right away.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
Thank you, Mr. Chair.
My question is in French, if you need the earpiece.
Mr. Keith, you say that the bill seems to be a controversial experiment, but I think many of your recommendations are equally so.
You are talking about common sense. I would like to know if you made these recommendations after we started our discussions on the legalization of cannabis or if they existed long before for many substances, including cannabis.
Partner, Fasken Martineau DuMoulin LLP
I'm not aware if they, especially all five together, have been presented before to a federal parliamentary committee or provincial legislative committee. Controversy complements controversy, so perhaps—to calm the fears of many employers, and they are quite worried, about being able to manage the risk associated with the legalization of recreational cannabis—now is a good time to embrace these amendments, which of course won't only deal with cannabis but also with other drugs.
Canada, as you know, has some of the highest, if not the highest, use of cannabis in the world. It might be a good thesis to look into why, but that's not what we're here to do. In looking at the present condition, as well as the anticipated greater social acceptance and use and its overflow to the workplace, it's important to have a legislative framework. It won't solve all the problems, won't prevent all the accidents, and won't stop all the litigation, but it will do a lot to assist all three of those problems.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
Thank you for your answer.
Here's what I mean when I talk about controversy. Let's stop at your first recommendation to amend the Labour Code. There is a prohibition on all workers. I have a lot of difficulty understanding this idea of prohibiting everyone from this.
We are talking about cannabis, but what does “impaired at work” mean? What other legal drugs and legal medications are available on pharmacy shelves that people take without a prescription and without reporting it? How are we, currently, ensuring that all workers and employers are safe in the face of current situations which, in my opinion, are dangerous to varying degrees?
Adopting a regulation that is very broad to guard against some extremely harmful effects is a bit like killing a fly with a hammer, if I may use that analogy. On the other hand, we are looking for safety for everyone, of course.
Where do you stand on this extreme?
Partner, Fasken Martineau DuMoulin LLP
As it relates to the first recommendation, it's simply putting in a policy statement that workers ought not to come to work under the influence of cannabis or other drugs without a medical authorization or prescription, which answers one of your questions, and without employer approval.
Certainly, in non safety sensitive positions, there is a lower worry about it affecting safety. It might affect productivity, and I'm sure it does, but that's a different problem, which the employers will have to deal with. I think the point behind the first recommendation is that it's more of a symbolic statement to say to employers and to workers that it's not a good idea to come to work when they're not sober, but if they're under the influence of a prescription drug, that's fine. They should report discreetly to the HR department. They'll have to keep it confidential, but if the person has some sort of medical reaction, they're at least aware. Many employers have a policy that reflects what I'm suggesting, but it's certainly not the law.
I don't think the health and welfare concern this represents for workers and their safety is a hammer. It's more like a gentle net to catch the fly and set it free.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
It depends on the perspective, Mr. Keith.
Let's address the legalization issue. Currently, people, in good faith, are going to reveal that they are using cannabis. I say “in good faith” because there is a danger in disclosing this information, especially to an employer during an interview for a new job. People are certainly reluctant to disclose this, I can confirm it.
We still have statistics that indicate some use. By legalizing cannabis, don't you think people will be more inclined to talk about their use? It will be like taking aspirin, medication or any other legal product that is no longer controversially illegal.
Rather than passing a very restrictive legislation, could this provide clarification and perhaps even provide more reassurance for employers who can have a much more open discussion with employees and take advantage of the effects and standards to counter the negative effects of all kinds of drugs?
I'll let you respond.
Partner, Fasken Martineau DuMoulin LLP
I'll restrict my answer more to the mandate of workplace safety, if I may.
I think the focus on a safety sensitive position and more information and more potential testing is again to focus on the welfare and safety of the worker. Employers generally are neutral on the politics or the legality of any substance, including cannabis. What they need and want to know is that workers will come to work, they'll be sober, they'll be able to work safely, and they won't hurt themselves or anyone else or the public. That's the key focus of these suggested amendments to the Canada Labour Code.
The other aspect of your question I think is a little broader than my mandate. I think there isn't a great deal of stigma out there, whether you accept this or not, for having a medical authorization for marijuana. It's been available since 2000. It's funded by workers' compensation boards when people need treatment for a workplace-related injury. In fact, it's talked about freely and openly.
The legality-illegality issue is not the primary focus of worries and concerns. It's the effect it's going to have on safety in the workplace and the fact that it's only the employer who gets blamed when there's an accident if somebody's impaired.
Liberal
The Chair Liberal Bill Casey
Time's up.
That completes our first round.
We'll go to the five-minute round, starting with Ms. Gladu.
Conservative
Marilyn Gladu Conservative Sarnia—Lambton, ON
Thank you, Chair.
Thank you to all of our witnesses.
Mr. Keith, I think that you have pointed out a real gap in the legislation that will result in workers and employers not being adequately protected when marijuana is legalized. I say that because I think I have some experience in this area. I was the director of engineering and construction at Suncor. We had a drug policy that was a zero tolerance policy that we wanted to implement.
I live in a reasonably small community. We have a lot of tradespeople, and we're well aware of which tradespeople chronically use marijuana. We were unable to do anything about them being on the job site or do any assessment. There was no random testing allowed, and there was no mandatory testing allowed. I would contrast that with some of the best practices that we see elsewhere.
I also worked in the States, with Dow Chemical, Shell, ExxonMobil, and a number of organizations. They not only do random testing, which does give the result that you have indicated in terms of the reduction, but a lot of times there's a mandatory health test where they do drug testing for cannabis before somebody is allowed to join a project construction job.
I think there are examples out there. I would like to see some legislation drafted in here.
I guess, if we decide that we're going to do testing, then, I wonder about the cost that this will put as a burden on organizations. At Suncor, if somebody was using a prescription drug, they had a duty to report to the health nurse. We had a nurse on duty who could do a blood test, but, if you don't have that, then how are going to get those resources in place?
I think the other concern I have is with the data you mentioned on WSIB, that 38% of incidents are related to that. It's a very high number of claims that are refused. As cannabis comes in, and there is such a controversy about whether you're really impaired or not and what the technology can do, I worry that will result in further WSIB claims.
Could you talk a bit about the resourcing impact to the businesses?
Partner, Fasken Martineau DuMoulin LLP
I think, in the amendment to the Canada Labour Code that we're suggesting, it authorizes employers with workers in safety sensitive positions only to do random testing. Again, it is primarily for the purpose of deterrent, but also for detection, and there is a cost associated with that, as you point out.
I think employers may not all be happy to spend that kind of money. They may want to share that cost. That's permitted, if they're unionized, by negotiating a term in the collective agreement. It's unlikely, in my opinion, they'd ever get that agreement.
I think employers who are probably reluctant would be smaller employers with fewer resources. I think most employers, especially with dangerous jobs and safety sensitive positions, realize that preventing accidents is a huge, not only legal burden that they avoid, but also a huge cost burden. I think of the old saying that an ounce of prevention is worth pound of cure. I think most employers would likely—I can't speak for all of them or any of them in particular—embrace that additional cost if it was legally authorized to do it.
What is troubling for employers—and this is what many employers and employer associations have said to me—is that we think we have a pretty good case for random testing, especially after the TTC case, but we don't want to be in litigation for the next eight to 10 years. That's the risk. That's why a legislative framework, even if it's seen as a balanced and restrictive framework, with protections for privacy built in, absolutely.... I would point the committee back to the TTC decision. It very clearly sets out the TTC policy, and it has been judiciously approved, although that's being appealed.
Who knows where it will all end up legally? The point is, how many more accidents do you want to have in a dangerous workplace? How many do we as a society think we want to tolerate in balancing the prevention versus the privacy concerns?
The other point, simply—I didn't make it earlier, but it responds to your question of cost—is, even if the employer bears the full cost, union leadership has really ignored one fundamental problem. That is, they have in every legislation, federally and provincially, a duty of fair representation of all their union members, not just the member who's using drugs. Guess who gets hurt and killed? Union members by union members. There's a lack of leadership or accountability of the union leaders in saying that they are accountable for everybody, and they should encourage reduction of the idea of the use of impairing drugs or alcohol in the workplace. If deterrents through testing are helpful, let's work with employers for a better method to do that.
If there was a framework in the legislation, as we suggested, I think that would be a good start. That would allow employers to do that.
Liberal
Sonia Sidhu Liberal Brampton South, ON
My question is to Ms. Baxter.
You say employees should notify employers when they have a prescription for a drug. How do you propose to bring this forward without infringing workers' rights? Don't you think it's infringing rights that if somebody has a prescription for marijuana they have to notify their employer?