Nobody is defending—
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.
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.
12:15 p.m.
Partner, Fasken Martineau DuMoulin LLP
—that needs to be answered and that I've tried to address in the framework—
12:15 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Nobody is addressing present impairment, but that's my point. Right now, the current state of the law is that the defence is the medical necessity, but this is going to change the law. It's going to be perfectly legal to smoke cannabis on the weekend. Again, is it any of an employer's business what a person does on their personal time, as long as they're showing up for work not impaired?
The problem with random testing as I see it is that this person is going to test positive, and then what?
12:20 p.m.
Partner, Fasken Martineau DuMoulin LLP
No, you're mistaken. The TTC policy, as I mentioned before, addresses that issue. There is a medical consensus on what impairment is. They've doubled that consensus and have said that anything below that is a negative test. There would thus be a negative test for somebody who smoked up at a Saturday night party and went to work on Friday. They would test positive, but below a threshold at which they'd be identified as positive. In other words, they'd test negative. The test is for impairment, and that's what we want, I think, to keep people safe.
12:20 p.m.
Conservative
Colin Carrie Conservative Oshawa, ON
I have a point of order, Mr. Chair.
We have almost half an hour left. I wonder whether the members would like to do another round of questioning.
12:20 p.m.
Liberal
The Chair Liberal Bill Casey
We need unanimous consent for that. We have rules.
Do we have unanimous consent for another round of four questions?
12:20 p.m.
Liberal
The Chair Liberal Bill Casey
Yes, we have.
Who is our first questioner on this side?
Mr. McKinnon, you look as though you have a question.
12:20 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I'm a little unprepared.
I'm going to go back to Mr. Keith. We've had such good conversations.
I take your points about the need to examine the Labour Code for these aspects, but I'm still not persuaded concerning all of the instances I mentioned regarding operating of motor vehicles. You say that an employer doesn't want to call the police in the case of a suspected impairment, but as you say, lives are at stake; health is at stake.
If someone is operating a motor vehicle in an impaired state, they are breaking the law. Their conduct is criminal, fundamentally, isn't that right? Why would the employer not want to report it?
12:20 p.m.
Partner, Fasken Martineau DuMoulin LLP
That's a hypothetical suggestion.
Let me respond partly with an example. I have a formwork contracting client, who is the largest formwork contracting client in the province of Ontario. They estimate anywhere from 45% to 55% of their workers are using cannabis illegally right now. They have no means to test. They've had a few people thrown off the job who are visibly smoking on smoke breaks. That's what's happening right now.
On a smoke break at a construction site, since it's not prohibited and because it's open air, people are toking up and they're comparing smoking cannabis to smoking a cigarette, when the impairment effect is different. It's almost as if they were breaking out a case of beer on a smoke break. That's a better metaphor or comparison.
Employers don't want to get embroiled in criminal investigations related to the workplace. They don't want workers to get hurt. They just want the workers to come to work sober, to be able to do the job safely, and to get the productive work done.
The spirit behind the suggestion for a legislative framework.... I keep quoting the former chief justice because I think the courts are frustrated that there's no leadership and legislation on this complex issue and the balance that's been discussed here between privacy rights and the right to safety of workers in the public.
The practical reality is that there aren't enough police to police everybody who's going to smoke and put somebody else at risk, or do cocaine or drink alcohol. Some of the substances are legal and some of them aren't.
The focus here is not so much on the legality, but that legal cannabis will increase social acceptance and use. The risks are becoming higher for workers and co-workers in safety sensitive positions. The spirit behind the legislative framework I'm suggesting is to make and enhance protective measures in the workplace for the safety of workers and the safety of the public, while at the same time respecting the privacy rights of workers.
Employers just don't want to get involved in the problem of having criminal investigations at the workplace. They will resist it. I've been advising employers for a long time and that just seems to be a common theme, regardless of industry or jurisdiction.
12:25 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
We've had medical marijuana for a decade now. Is this not an existing problem? Is it new? Does the problem exist with the medical marijuana regime as well?
12:25 p.m.
Partner, Fasken Martineau DuMoulin LLP
That's a very good question and a very good comparison. There are two different kinds of advice I give to employers who ask questions about people with a medical authorization, also known as medical marijuana. The first is that, through a benefit plan, if it's employer-paid then the employer is aware and the employer has a legal obligation, under health and safety law, to not allow them to be in a safety sensitive position, unless they get a medical opinion that the worker is fit for duty.
What we do is that we either write the letter or the employer writes the letter to the doctor authorizing medical marijuana, saying, “Here is the job and here are the risks associated with it. Can we get your medical opinion? Is the person going to be even possibly impaired?” Most times the doctors say, “Yes, don't put them in a safety sensitive position”.
That's easy. The harder part is somebody who might have it and might not want to disclose it because they're afraid of losing their job, but they might be in a safety sensitive position. Then the only way the employer finds out is after an accident, when somebody is injured or killed on the job.
The answer is then that it's not their fault because they have medical authorization. Yes, however, the worker has a duty not to present themselves unsafe. That's why the first recommendation about actually having a formal prohibition against workers coming to work under the influence of cannabis or other drugs makes sense, unless there is a medical authorization as disclosed. It puts some shared responsibility on the worker and their doctor to determine if they could be impaired and could therefore affect the safety of others at work.
12:25 p.m.
Conservative
Colin Carrie Conservative Oshawa, ON
Thank you very much, Mr. Chair. I want to follow up a little bit more with Mr. Keith.
First of all, I was shocked that the government didn't reach out appropriately to stakeholders who represent the health and safety of workers. I wonder, if they didn't reach out to you, who else they did not reach out to, because this is extremely important.
I think there is hope, though. We heard a Liberal member who was concerned about his health and safety as far as second-hand cannabis smoke and setback were concerned. I hope the government takes these issues into account when they go forward in trying to roll this out. We shouldn't rush these things. We should make sure that the health and safety of Canadians is a priority.
I want to put you to the test here, because you have brought up some controversial things in your recommendations. I think that's good; they need to be addressed. I want to dig in a little bit more on mandatory testing and blood testing.
Do you think that mandatory, random testing is going to become the norm in the workplace? We know that police feel that when they're pulling somebody over for intoxication, there may be a swab and then they might have to take the individual to a hospital or a lab to get blood testing done so as to make sure these things stand up in court.
What I'd like to know from you is, if these changes become the norm,what does the government need to do to get ready? What changes do they have to make to legislation?
12:25 p.m.
Partner, Fasken Martineau DuMoulin LLP
There is more attention. The companion legislation to Bill C-45—Bill C-46—is moving towards dealing with a framework for public safety, in particular motor vehicle safety, and as technology advances and law enforcement concerns are understood and reflected in legislation, that will be dealt with.
Most Canadians seem to be more worried about public safety on our roadways than about workplace safety. My experience, if I have any expertise, is more in occupational workplace safety. It is a matter for concern, because it seems as though we're valuing the travelling public on the road more than we are the worker in the workplace.
I think there should be complementary legislative proactive testing measures taken. The proviso and the theme of the legislative framework I'm recommending is hopefully striking a balance between respecting workers' privacy and their need for assistance if they're proven to be impaired. There can, however, be as much or more harm done in a dangerous workplace or to a travelling member of the public—situations in which you have public safety but also occupational safety at play—than there would be with roadway safety.
The statistics are that for every person killed on the roadway you have about one person killed in the workplace, and it seems that the workplace risk of fatalities is being given less attention. That's why I've emphasized the points I have.
12:30 p.m.
Conservative
12:30 p.m.
Conservative
Len Webber Conservative Calgary Confederation, AB
I don't know how much time I have, but I'm curious, Ms. Fraser. I enjoyed all of the presentations, but in particular yours. You talk about the tens of thousands of people who are currently working in the illicit cannabis industry and suggest that there should be amnesty clauses put in the bill to enable people who have small convictions to apply for and gain licences.
I think about individuals who perhaps may not have any criminal record but have affiliation to gangs such as the Hells Angels. They may be known to police, yet they do not have any criminal convictions. I have problems with those individuals being allowed to get licences and to perhaps produce one day. Your suggestion is, though, that these individuals should have the opportunity to apply and have a fair hearing, is it?
12:30 p.m.
Partner, Brazeau Seller LLP
It's the converse. What I was saying was that this would be one example of an exclusion to the right to participate that I would suggest. In fact there are already a number of different grounds for refusing a licence under the ACMPR. Affiliations with organized crime is one of those grounds.
That makes sense.
12:30 p.m.
Partner, Brazeau Seller LLP
It stands alone, separate and apart from any involvement in the illicit drug trade. For sure this exclusion should stand and should carry forward. I was speaking more to participation in the illicit market in and of itself, in the absence of these other factors.
