Health Committee on Sept. 14th, 2017

[Brenda Baxter]

Absolutely. I think the Canada occupational health and safety regulations are built on the balance of the employer's responsibilities and the employee's rights. I don't know who made the recommendation about reporting prescriptions to an employer.

To start with, people can be impaired from various different substances and circumstances. Fatigue can create impairment. In the workplace, employers and employees work together to identify the hazards in the workplace. The regulations are built so we can have the flexibility to understand the differences in the types of workplaces, the different types of work, and the different types of workplaces. The measures put in place in any workplace are built around employers and employees working together.

With respect to any sort of questions with regard to testing, etc., in the workplace, as has been mentioned there is jurisprudence that speaks to this and measures that must be in place in order to undertake any sort of testing. There is always a balance between preserving an individual's human rights and privacy, and ensuring safety in the workplace.

[Sonia Sidhu, Liberal, Brampton South, ON]

Thank you.

Ms. Fraser, what programs and services should be put in place to support employees for those who use cannabis for medical purposes and who may be dealing with their dependence, or any problematic use?

[Trina Fraser]

I believe Mr. Keith already touched upon this. Obviously an employer has a duty to accommodate to the point of undue hardship. In the absence of legislative amendments, employers will be needing to do that through policies within their workplace.

I think one of the interesting issues that's going to evolve is this concept of undue hardship. I think it's a little bit difficult for employers to maybe pin down exactly where that point lies right now. I think every employer would prefer to have a smoke-free workplace, but there is some jurisprudence to indicate that if you're smoking cannabis for medical purposes, that needs to be accommodated. We are seeing an evolution and an expansion of the array of medical cannabis products that are available to employees. We now have cannabis oil available in a sublingual spray. We have dried cannabis in a powder form that can be capsulized. I think we're going to continue to see an expansion of the array of products.

That's just one example of how employers are going to have to keep their eye on the industry, and see how it is evolving, and how that may affect the policies that they put in place to address those issues with employees.

[Sonia Sidhu, Liberal, Brampton South, ON]

Mr. Keith, the Canadian Centre for Occupational Health and Safety published an article related to the federal task force study on cannabis specifically dealing with the question of workplace safety. They noted that federal and provincial human rights resist workplace drug testing.

Why are you thinking the federal government should intervene in a provincial government matter when workplace safety laws and workplace zero tolerance policy reach the same goal?

[Norm Keith]

The federal government, as it has jurisdiction over criminal law under the Constitution Act of 1867, also has constitutional jurisdiction over federally regulated workplaces. My recommendations go to those federal workplaces. I think also, because of what the chief justice said to me in the Irving case, because of the lack of leadership and a legislative framework, even though it touches only 8% or 9% of the employees in Canada, it is critical for the same government that opens the door to actually put a gate around the precipice that people might fall into once they go through the door, if I can use that metaphor.

It also will provide needed leadership to provinces, especially smaller provinces that don't have the resources of the federal government, to look carefully at the health and safety implications.

There is no legal right recognized by any court for a worker to come to work impaired, hide that fact, cause injury to himself or herself or someone else, or kill a member of the public. To suggest the federal government shouldn't be involved in putting a legislative framework around the broader use of cannabis I think is reckless.

[Sonia Sidhu, Liberal, Brampton South, ON]

You mentioned the Sunwing pilot's case. I think it dealt with the transport law. Do we still need to intervene with a federal law, because the Sunwing pilot's case dealt with the law already?

[Norm Keith]

There is no testing, unfortunately, and that's the whole point. It was co-workers who had to restrain, as I understand the facts of that case, the pilot. There was no employer permission. There was no legislative mandate for the employer to actually deter and detect substance abuse, which is troubling.

[The Chair, Liberal, Bill Casey]

Time's up.

Now we go to Ms. Gladu.

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

Mr. Keith, did you have an opportunity to give your input to the government as part of the consultation prior to the drafting of this legislation?

[Norm Keith]

Personally and through any organizations I represent, no.

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

Clearly, that's why it's been overlooked.

My next question is for Ms. Fraser. You said that if we are allowing people to get licenses to distribute or to be involved in the production of marijuana, we shouldn't discount people who have past criminal offences, if I understood correctly.

One of the objectives of this legislation is to try to get rid of the illegal market. I'm not sure why we would get people who had no respect for the law previously to be involved, if we're trying to get rid of the illegal market. Could you expand on that?

[Trina Fraser]

I guess I'm taking a practical approach to this. These people are not just going to disappear. They're clearly prepared to put their personal liberty at stake now. Some of it is opportunistic, admittedly. Some people just passionately believe in the benefits of this plant. They will continue to do so if they're not provided with an opportunity to comply with regulation and participate in the legal market.

I think it's naive to think that throwing more money at enforcement is going to make that illicit industry go away. It might reduce it, but I don't think anything is going to make it go away completely. What I'm saying is that I think there is a large segment of the current illicit market that would embrace regulation and legalization and is eager for that opportunity and would be compliant if given the chance.

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

If we look at the best practices of Washington, for example, which has done the best job, from the testimony we've heard, of getting the black market out of the picture, what they did was take their medically regulated regime and bring the recreational regime into those same suppliers that were already following the rules.

Don't you think that would be a better approach for us to take?

[Trina Fraser]

That is essentially what we're doing. My understanding is that the supply for the recreational market will come from the existing licensed producers that are licensed under the medical cannabis regime. Those applications continue to be processed, and they continue to be filed, and that's not going to stop. We need to look at that decision-making process and who those licences are being granted to. Clearly, 58 licenses is not enough. That process is going to continue.

Right now, the way the ACMPR is drafted and the way the bill is drafted, that decision-making process essentially excludes that entire segment of people. I just think that's short-sighted, and it's going to lead to continued frustration that this illicit market continues to exist.

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

Do you know whether Washington allowed people with prior convictions to participate?

[Trina Fraser]

I'd have to dig it out to see exactly how it's worded, but there is a certain tolerance for prior marijuana-related offences.

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

Can you send that to me or the clerk? I'd be very interested in what they did there.

[Trina Fraser]

Sure.

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

My question now is for Ms. Baxter, and it has to do with Bill S-5. As we look at Bill S-5 and the vaping, and we start thinking about what we should put in as language around cannabis, are there any concerns about potency guidelines or anything like that you think we should be including?

[Brenda Baxter]

Questions like that I think would be best answered by Health Canada, which is looking at that particular issue.

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

Okay, very good.

I have one other question for Mr. Keith.

It's always difficult when you start talking about one person's rights versus another person's rights, such as the right of people to have their privacy versus my right to be protected at work. How do we resolve these kinds of dilemmas? You're going to cause people to have to submit to random testing, which I have done—it's not that onerous—which for some people would be an invasion of privacy, versus my right to be safe at work.

[Norm Keith]

One way, which is the current way we're doing it, is case by case in the courts. That's expensive, it's time consuming, and with all due respect to the committee, it's an abdication of legislative leadership.

I think a minimal legislative framework has to be put into place. There's no question that people have a right to privacy, but how far does it go? Can I have my privacy to the point where it puts somebody else's life or livelihood or property in danger? Generally, we say no, and that's essentially what Judge Marrocco said in the TTC injunction case. The balance of convenience and the public interest for the safety of workers, and in particular the public, favours testing, which is a deterrent-and-detection method of being able to deal with the problem.

I don't want drug testing to be all you hear from me. It's never a full solution. It's part of a suite of responsibilities and tools to deal with what hopefully everyone agrees with, which is that you don't want workers, especially in safety sensitive, dangerous positions, to be impaired and to hurt themselves or others. I've seen it happen. It will continue to happen, sadly. There needs to be a greater emphasis on prevention. That's one method that would help.

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

Thank you very much.

[The Chair, Liberal, Bill Casey]

Now we go to Mr. Oliver.

[John Oliver, Liberal, Oakville, ON]

Thank you to all of you for your testimony.

Ms. Baxter, I used to work in hospitals where there was no smoking on hospital property. Where I lived in Oakville, there was very little second-hand smoke in bars, patios, and all those things, so I was quite taken aback at my personal exposure to second-hand smoke when I started to work in Ottawa.

One of my biggest beefs is with the cluster of smokers just outside the doors of buildings. Is there no setback here to put smokers back nine or 10 metres from doorways? Am I about to see an influx of marijuana smokers mixed in with those tobacco smokers?