Health Committee on Oct. 2nd, 2017

[The Chair, Liberal, Bill Casey]

You've had quite a bit of indulgence.

[Don Davies, NDP, Vancouver Kingsway, BC]

Yes, on different sections. I'll speak for five minutes to every one of the other sections if that's better. This way saves time. I speak for 10 minutes now or I speak for 50 minutes—

[The Chair, Liberal, Bill Casey]

Go ahead.

[Don Davies, NDP, Vancouver Kingsway, BC]

The way I want to introduce this is this legislation has a number of sections that still retain a criminalized approach to cannabis with quite heavy criminal penalties and heavy jail sentences possible, in fact, up to 14 years. I've pointed out before that 14-year maximum sentences are similar to those for producing child pornography or leaving Canada to commit acts of terrorism. Yet a 20-year-old, according to this bill, could sell cannabis to a 17-year-old and potentially face a 14-year sentence.

From a broad philosophical point of view, I agree with the government in their general approach to legalized cannabis. I just want to point out that by retaining a prohibitionist model and retaining criminal sanctions for a whole host of offences around cannabis, you're not legalizing cannabis.

What I propose here, Mr. Chair, is I'm going to have three different types of amendments so that every time a section comes up that has a jail term criminal sanction to it, I will move amendments 1, 2, and 3.

The first type of motion I will move, and that's what I'll move here first, is to replace the criminal framework with monetary penalties modelled on the Tobacco Act. It still will retain the ability to impose a criminal sentence on the most severe or most repetitive type of commission of an offence, just like it does under the Tobacco Act or under the Excise Act, but it generally more faithfully makes this legislation change a criminalized approach to cannabis to one that is more regulatory.

The criminal framework created by this bill is inconsistent with a rational and evidence-based criminal justice policy, and I think will only serve to reduce the positive impacts of cannabis legalization. The penalties contained in Bill C-45 are drastically out of proportion with those currently applied to alcohol and tobacco offences, and I think cannabis legalization should take a regulatory approach with significant fines for offences rather than a criminal one. Again, one of the purposes of Bill C-45 as laid out in clause 7 is to reduce the burden on the criminal justice system in relation to cannabis, so penalties in the bill, I think, should be consistent with that stated intent.

I will point out, as well, that a maximum penalty of 14 years' imprisonment eliminates a judge's discretion to impose a conditional sentence. We heard evidence that current sentencing ranges for cannabis offences under prohibition are far shorter than the lengths proposed under legalization in Bill C-45.

The Canadian Bar Association said:

At present, sentences for cannabis offences are not near the length proposed in Bill C-45, as even large scale operations do not generally attract 14 year sentences. While some criminal sanctions might be appropriate for an offender distributing a large quantity of illicit cannabis, that will be the exception in a legalization regime. If cannabis is to be treated like tobacco or alcohol, penalties available should reflect those regimes. ... For tobacco, section 220 allows a person to grow up to 15 kg of tobacco for personal use, with the same allowance for other adults on the farm or premises. Selling without a license brings a fine and, for default in paying the fine, up to twelve months imprisonment. The same is true for violating section 220. Offences for selling without paying duties carry penalties on indictment of up to five years and on summary conviction up to two years.

John Conroy said that all indictable offences should be abolished, leaving only summary conviction offences and a maximum of two years less a day imprisonment for serious matters. He said there should be no imprisonment available for cannabis offences and the focus should be on monetary penalties for infractions and violations. Mr. Conroy said that having this “maximum of 14 years, hybridized by indictment, and so on, is frankly totally unrealistic in terms of what goes on on the ground.”

Even in the Saskatchewan Court of Appeal, which is not known to be the most liberal court in the country, the range for trafficking, for example, is 12 to 18 months. Most sentences are up to two years. The conditional sentence order is the last step before having to put you actually in prison, and a 14-year maximum, because of the 2012 amendments, prevents a judge from doing that.

Kirk Tousaw said:

These criminal restrictions are decidedly unlike the way our country regulates alcohol. At this moment in Canada a 19-year-old can walk into a liquor store and purchase enough alcohol to kill that person and all that person's friends and acquaintances. Similarly there are virtually no restrictions on individual Canadians' rights to brew beer or make wine for individual consumption. Given that reality, it's ludicrous, or to put it in legal terms, arbitrary, overbroad, and grossly disproportionate to allow Canadians to be arrested and caged for simply possessing an amount of cannabis or dealing with it in an illicit manner. There is no empirically, morally, or legally sound reason why cannabis should be treated more strictly than alcohol.

Finally, Michael Spratt said that Bill C-45 is an “unnecessarily complex piece of legislation that leaves intact the criminalization of marijuana in too many circumstances.“

He goes over the fact that:

An adult who possesses more than 30 grams of marijuana in public is a criminal. A youth who possesses more than five grams of marijuana is a criminal. An 18-year-old who passes a joint to his 17-year-old friend is a criminal. An adult who grows five marijuana plants or possesses a plant 101 centimetres tall is a criminal. And anyone who possesses non-government-approved marijuana is a criminal. This continued criminalization is inconsistent with a rational and evidence-based criminal justice policy and will only serve to reduce some of the positive effects of Bill C-45.

In conclusion, Mr. Chair, my first range of amendments, and the one that will be put before my colleagues first, is to remove the jail sentences and replace them with monetary fines in this clause. As you'll see, if this is defeated, the second type of amendment will reduce the 14-year maximum sentences to two years less a day. It will retain the criminal and penal sanctions but it will put the sentencing into a more reasonable and, frankly, realistic sentencing range, which is the case in Canada today, and make all other offences summary convictions only and strike out the indictable offence sections. If that doesn't pass, my third motion is simply to reduce the 14-year maximum sentence, wherever you see it, with a nine-year sentence. That's because any offence in the Criminal Code that carries a maximum of 10 years or more does not qualify for a conditional sentence ordered by a judge, and we want to restore that discretion to a judge.

Mr. Chair, that's the explanation of all of these amendments. I'll move the first amendment now, which would remove the jail sentences and replace them with monetary fines.

Thank you for your indulgence, Mr. Chair.

[The Chair, Liberal, Bill Casey]

Thank you.

Dr. Eyolfson.

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

Mr. Chair, I find some merit in what Mr. Davies says, but we were also advised by the jurisdictions that legalized it to take it slowly, take this very slowly, not to go too far or do too much too soon. In regard to an earlier comment about how we had campaigned on legalizing, we campaigned on legalizing and strictly regulating. That was part of it. We didn't just say the word “legalizing”.

One of the things we want to get a hold of is the problem right now of trafficking. We have to set some limit on what the difference is between the amount you'd have for personal use and what might be considered for trafficking. This may be reviewed, if this amount is causing problems in the future, but again, this is the amount advised by the jurisdictions that have legalized it.

Therefore, I'll be opposing this motion.

[The Chair, Liberal, Bill Casey]

Thanks very much.

Mr. Van Kesteren.

[Dave Van Kesteren, Conservative, Chatham-Kent—Leamington, ON]

Chair, I wonder if I could indulge Mr. Davies. As I said, it's a great sound argument, but why wouldn't you go all the way? Why wouldn't you just say that we need to remove all sentencing except, perhaps, in the case of trafficking? If you take this argument to its logical conclusion, and if marijuana should be something that should be freely accessible in society, and if people are adults and they choose to use it, why would we...? I mean that with all sincerity. Could you maybe explain to me why we have any sentencing, or any prison time, or a fine at all?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chair, may I respond quickly.

That's an excellent question and one that was raised throughout the testimony. I think it's a fair characterization of the evidence we heard that cannabis is a product similar to tobacco and alcohol and that we should adopt a similar regulatory system for it. These are mind-altering substances. You don't want children using them. They all have health consequences to varying degrees, but ultimately we think they are substances that adults should be able to choose in the comfort of their own homes to indulge in or not without attracting criminal sanctions. That's why I'm really puzzled by this. According to the evidence we heard—and the Liberals heard the same evidence—cannabis is less harmful than tobacco or alcohol in any range of measure. So why would we be bringing in legislation that retains a much harsher, much heavier criminalized approach to cannabis when we don't apply the same approach to tobacco or alcohol?

I think it's justified to have some regulatory controls on this, as we do with tobacco and alcohol, because we want to keep these substances out of the hands of children, out of the hands of organized crime, and because we want to make sure the products are safe and that production is controlled. I think this warrants a regulatory approach where there have to be some sanctions. The question is: what are the appropriate sanctions? Dr. Eyolfson said there needs to be some consequences, but we're talking about possession. This is the possession section, not the trafficking section.

The question is whether we need a five-year jail term. Is that really what we as parliamentarians want to prescribe for people caught with 90 grams of cannabis? Are we going to say, in 2017, that these people are criminals and that they can go to jail for five years? There was no evidence before this committee suggesting that this was an appropriate response. The Liberals, I can tell, are going to vote against this, and they can do that. What they can't do, though, is square their position with the evidence we heard at this committee. The evidence showed that this position is completely out of whack with even the penalties given now under complete criminal prohibition where you can traffic large amounts of cannabis and get two years, whereas under this act you can possess 80 grams and get five years.

What I want to do is find the proper regulatory system with proportionate responses so that we can legalize this substance. I take Dr. Eyolfson's point that this represents a change in culture and requires that we move with some caution. I think that's understandable. But it doesn't mean we should pass a bill that has criminal law provisions that are not based on the evidence and that we all know will do more harm than good.

[The Chair, Liberal, Bill Casey]

I see no further speakers, so I would like to bring NDP-3 to a vote.

[Don Davies, NDP, Vancouver Kingsway, BC]

I'd like a recorded vote, please.

(Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])

[The Chair, Liberal, Bill Casey]

That amendment was negatived, but it wasn't unanimous. That's a consolation.

Now we go to NDP-4.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chair, I appreciate your finding a silver lining in every cloud.

In keeping with what I just said, this is the second-best amendment we could make to this bill. If we're not going to take the regulatory approach with fines, we should make the criminalized part of this, the jail sentences, at least reasonable. This amendment would remove the indictable offence for possession and leave the summary conviction, which would mean that any offence under the possession provisions of this bill would leave a person subject only to summary conviction, with a maximum fine of $5,000, a maximum of six months in prison, or both.

I want to make clear that this is not my first choice, but given that it's the will of the majority of this committee not to move to a regulatory penal system but to maintain a criminalized one, then I suggest that we remove indictable offences from simple acts of possession of cannabis.

[The Chair, Liberal, Bill Casey]

Mr. Ayoub.

[Ramez Ayoub, Liberal, Thérèse-De Blainville, QC]

I understand my colleague's intention well and I respect it very much. That said, we are talking about clause 8 of the bill and we need the power to act in the case of large quantities. Mr. Davies might not consider 30 grams to be a lot, but it is being recommended that the bill give the court the power to impose penalties. Criminal acts are still covered by this bill at this time. For those reasons, I oppose this amendment.

[The Chair, Liberal, Bill Casey]

Thanks very much.

Ms. Gladu.

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

Chair, I want to say that we did hear a lot of testimony to the effect that, for younger people, cannabis harm education is better than punitive things. There was a lot of support for a ticketed offence type summary conviction approach.

Certainly, in light of all the things we hear, I want to correct what the member has said about there not being any harm with cannabis. He keeps comparing it to alcohol and tobacco. Well, tobacco is a harmful substance, and alcohol is a harmful substance, and cannabis is a harmful substance.

[The Chair, Liberal, Bill Casey]

Thank you.

Seeing no further names on the list, I'm going to call for a vote on NDP-4.

[Don Davies, NDP, Vancouver Kingsway, BC]

I request a recorded vote, Mr. Chair.

(Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])

[The Chair, Liberal, Bill Casey]

Now we go to the vote on clause 8.

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

I request a recorded vote on clause 8.

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

I have an amendment to add clause 8.1.

[The Chair, Liberal, Bill Casey]

We're going to get to 8.1. That's the next one.

We're voting on clause 8.

(Clause 8 agreed to [See Minutes of Proceedings])

[The Chair, Liberal, Bill Casey]

Now we have new clause 8.1 proposed by Mr. McKinnon.

Would you like to explain this?

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

Chair, the purpose of this amendment is to bring the provisions of my private member's bill, Bill C-224, to bear on this legislation. As you remember, Bill C-224, the Good Samaritan Drug Overdose Act, which received royal assent in May and passed all stages in both Houses—I believe, unanimously—amended the Controlled Drugs and Substances Act to exempt from charges for simple possession, certain breaches of conditions, and so forth, people who seek emergency medical or law enforcement assistance for themselves or another person in the event of an overdose.

This is working, and it is an effective tool to help stem the tide of death that pertains to overdoses in this country. However, should this bill pass and receive royal assent, cannabis would be removed from the scope of the Controlled Drugs and Substances Act, and the provisions of that act would no longer apply to cannabis, which means that those exemptions would no longer apply to cannabis.

What this amendment would do is it would add into this section those self same exclusions that were previously introduced and passed in the Controlled Drug and Substances Act.

We have also suggested a minor change. The word “overdose” is sometimes confusing to people. They don't know necessarily whether a particular medical situation is in fact an overdose, and so they are reluctant to make the call. This would change the language to “medical emergency” as opposed to using the word “overdose”.

I think this avoids for us a situation where someone who might be in possession of marijuana but in a circumstance where someone has been called in relation to, say, an opioid overdose is subject to possession charges that would take from them the incentive to call for help, which is really what we want to do. We want to encourage people to call for help when help is needed.

I hope for support from the committee for this amendment.