Remarks by the Senator Claude Carignan on C-45 - Second reading


Second reading


Hon. Claude Carignan: Honourable senators, it’s almost time for the second reading vote on Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts.

The first thing I want to say is that my initial reaction when the Prime Minister made this campaign promise in June 2015 was one of surprise. Why? How did legalizing cannabis become a priority for our society, and, more importantly, how did giving up on the problem come to be seen as the solution? I have always believed in decriminalizing simple possession, and I don’t think young people should bear the stigma of a criminal record for a minor offence. Our understanding of the subject has grown since the beginning of this debate, and I still believe that. However, the government wants to go further than that and make us the first country in the world to legalize the sale of cannabis.

I have tried to be as open-minded as possible about this, but, for a number of reasons, I am very deeply concerned about the push to legalize cannabis consumption so quickly. I would like to offer an objective and practical perspective on the issues associated with Bill C-45. By legalizing cannabis use hastily, without scientific evidence and against the advice of medical experts, the government is violating one of the modern-day public policy maker’s guiding principles: the precautionary principle. This internationally recognized principle has been a statutory prerequisite for all French legislation since 2005. The precautionary principle applies to situations where there is insufficient evidence to scientifically establish the risk of a human activity causing significant harm to the environment, public health or food security.

In this case, the human activity in question is the legalization of cannabis, a product consumed by humans. This principle has been cited in certain court rulings in Canada and is enshrined in the Canada Consumer Product Safety Act. This bill will profoundly change our society. The haste with which it is being pushed through is troubling. Haste implies improvisation.

The Minister of Health says the act will come into force 8 to 12 weeks after Royal Assent. In the U.S. states that have legalized cannabis — by referendum, I should add — the effective date was 12 to 24 months after the legislation was signed into law. Colorado legalized cannabis on December 10, 2012, and sales began 12 months later, on January 1, 2014. Washington State legalized it on December 5, 2012, and sales did not begin until 18 months later, on July 8, 2014. Lastly, California legalized it on November 9, 2016, and sales began 13 months later, on January 1, 2018.

Uruguay spent four years getting ready before making cannabis available through a network of pharmacies. This gave local governments, police and health officials much more time to prepare for the change. They also had the benefit of 10 to 15 years’ experience conducting random drug screening on high-risk workers such as public transit drivers, airline pilots, train engineers and school bus drivers.

Despite this, representatives of these U.S. states told us that when these laws came into effect, they realized they really were not prepared enough. Does Canada, a country 37 times bigger than Colorado, seriously think it can do this in eight weeks? We’ve heard provincial governments, police forces, medical specialists and many other organizations beg the federal government to slow down so this important transformation can be done properly.

Whatever you think of Bill C-45, you have to admit that this has been a learning experience that launched a national debate on cannabis. For instance, we know that a growing number of Canadians feel that people shouldn’t be saddled with a criminal record for possessing small amounts of the drug. Also, some of Bill C-45’s objectives are certainly commendable. There even seems to be some consensus on that. It’s always useful to point out what both sides agree on. I will mention three points. The following statements from the Minister of Justice at second reading reflect the intentions of Bill C-45: the first is to protect the health of young persons by restricting their access to cannabis; the second, to reduce the burden on the criminal justice system; and the third to enhance public awareness of the health risks associated with cannabis use.

It is fascinating that, despite unanimous agreement on those three intentions, there is still so much disparity between the “yeas,” the “nays” and the “maybe, but on certain conditions.” Why? The answer is simple: the execution of these three good intentions. In other words, how should Bill C-45 meet those objectives? Is legalization the only option for achieving the government’s objectives?

First, a piece of good news is the fact that the primary reason for proposing Bill C-45 no longer exists. We now know, thanks to the September 2017 report by Statistics Canada and the 2017 UN drug report, that Canada does not have the highest cannabis use in the world, in particular among youth. This is very encouraging. In fact, according to Statistics Canada, between 2002 and 2012, the percentage of 16- and 17-year-olds reporting past-year use declined, and usage among those 18 to 25 remained unchanged. This was also confirmed by the Parliamentary Budget Officer’s report on the fiscal consideration regarding cannabis:

Historical data from the Youth Smoking Survey . . . indicated a consistent and substantial decline in reported youth cannabis consumption in recent years.

To draft Bill C-45, the government set up a task force that released its report in December 2016.

I would like to talk about the task force. First, I think this 112-page report is helpful, even if it wasn’t objective, but this was no fault of the task force, since members were only fulfilling their objectives as mandated by the government. Nor is it a thorough report when compared to the 800-page 2002 Senate report and the 1,000-page report of the Le Dain commission.

In fact, the task force report is not even scholarly. For instance, an example of a scholarly government report is the 2015 paper titled Alcohol Consumption in Canada by the Chief Public Health Officer, who at the time was Dr. Gregory Taylor. This study is half the size of the task force report and yet it has 705 citations, whereas the task force report has zero, with no bibliography. The reason this matters is because the task force report was used to draft Bill C-45. If the task force report lacks credibility, then we need to consider if this is also true of the bill itself, because as the Minister of Justice said to the Committee of the Whole:

. . . the government was informed in large part by the advice it received from the Task Force . . . .

Let’s come back to the task force. To its credit, its report recognizes on page 1, and I quote:

We are aware of the shortcomings in our current knowledge base around cannabis and the effects of cannabis on human health and development.

. . . we recognize that cannabis policy, in its many dimensions, lacks comprehensive, high-quality research in many areas. On many issues throughout our discussions and deliberations, we have found that evidence is often non-existent, incomplete or inconclusive.

I would like to pause here and ask you what would happen if a pharmacological company said the same thing to the Canadian Health Products and Food Branch, the governing body that reviews drug applications. Just imagine a pharmacological company presenting its new drug to the FDA and then concluding by saying, “Even though the evidence for the efficacy of this new drug is non-existent, incomplete and even inconclusive, we would like the FDA to approve sales of our drug across Canada without a required prescription and, for convenience, allow people to buy it online.” Perhaps members of the FDA would simply smile and say, “You are aware that you can’t even buy codeine cough syrup without a prescription. Come back to us once you have performed clinical trials.”

You might be asking yourself right now, why then did Health Canada approve cannabis? The short answer is they didn’t. In a document titled Information for Health Care Professionals regarding cannabis use, which contains 1,000 citations, the document begins with a disclaimer in bold print:

Cannabis is not an approved therapeutic product and the provision of this information should not be interpreted as an endorsement of the use of this product, or cannabis generally, by Health Canada.

Here is something else that was not mentioned in the house but was addressed by the task force. The members acknowledged that:

It is more appropriate to refer to our recommendations as “evidence-informed” rather than “evidence-based” . . . .

And yet the Minister of Justice introduced the bill by stating:

Our government understands the complexity of [the legalization of cannabis]. That is why we have taken a cautious evidence-based approach.

But clearly the task force advised the government not to use the expression “evidence-based.” Again in the same speech, she reiterated the fact that:

Our government believes in evidence-based policy.

And then in response to a question, she said:

Bill C-45 is an evidence-based piece of legislation that seeks to put in a complex regime to legalize and strictly regulate cannabis in this country. It is based on a substantive task force report.

In her speech at the United Nations, in 2016, the Minister of Health said, and I quote:

Our approach to drugs must be comprehensive, collaborative, and compassionate.

“Comprehensive” means “exhaustive.”

I remind you that the task force wrote the following on page 5:

Our recommendations reflect the fact that the current scientific understanding of cannabis impairment has gaps and that more research and evidence, investments in law enforcement capacity, technology and tools, and comprehensive public education are needed urgently.

The chair of the task force said, and I quote:

We have discovered that the regulation of cannabis will touch every aspect of our society.

In commenting on other findings of this report, he said on page 17:

Yet current science is not definitive on a safe age for cannabis use . . .

On page 6:

. . . there is consensus on the need for more research aimed at understanding, validating and approving cannabis-based medicines.

On page 15:

We know more about the short-term effects of cannabis use . . . We are less certain about some of the longer-term effects . . .

If there is any truth to even one of these concerns, then obviously further study will be required. This may explain why Uruguay took four years to fully implement their legislation, and distribution is through the network of pharmacies. For whatever reason, the Health Committee did not hear from a representative from Uruguay, so I’m curious to learn more about their approach, and in particular, why it took them four years.

If Canada implements Bill C-45 in 8 to 12 weeks, then the only people who will benefit from such an accelerated timeline are big corporations and some unknown stock holders hidden in tax havens.

Let us now come back to Bill C-45 in particular.

The government is telling us that one of the bill’s objectives is to stamp out organized crime, which is supposedly behind the production and sale of cannabis. What fact-based evidence does the government have to back its assertion that legalizing the use of cannabis will reduce the activities of organized crime? We do not know.

On February 27, Radio-Canada reported on cannabis traffickers that have been operating for several years. This report highlighted the fact that traffickers are not the least bit worried about the future legalization of cannabis.

The following is an excerpt from this report:

Dealers say they are prepared to have a price war with the state.

“The government’s price will always be higher because there is more bureaucracy,” said Vincent, a cannabis dealer in Montérégie.

A lower price for cannabis on the black market is not going to affect the income of street dealers.

Mélanie, who has been dealing for 30 years in downtown Montreal had this to say:

“You’ve got 30 grams. You won’t go to jail for that. Once I’ve sold these, I will go and get 30 more some from my stash. I will keep dealing just the same.”

By the way, I would like to point out that, in Quebec, Mélanie could have a stash of up to 160 grams without any legal consequences. In some provinces she could possess an unlimited amount.

Dear colleagues, this might give you a good idea of what is in store.

Still on the topic of organized crime, here is another enlightening comment. When he appeared before the Standing Senate Committee on Legal and Constitutional Affairs recently, Kevin Brosseau, Acting Commissioner of the Royal Canadian Mounted Police, called into question the statements of Prime Minister Justin Trudeau and the federal ministers responsible for the legalization of cannabis that the drug must be legalized in order to eliminate the presence of organized crime in the illicit cannabis market, where these groups are making a fortune. Mr. Brosseau said, and I quote:

Given the involvement of organized crime in the illicit cannabis market, we do not expect the legislation will eliminate the presence of organized crime in the cannabis market. It will reduce it but it will not eliminate it.

. . . illicit markets and organized crime are constantly evolving, frankly one step ahead, seemingly, at times.

The Service de police de la Ville de Montréal or SPVM also expressed doubts concerning the government’s claims and indicated that, in order to thwart law enforcement, organized crime has already changed its strategy in anticipation of the legalization of cannabis, which is scheduled for early July. The spokesperson for the SPVM said the following, and I quote:

Organized crime, as its name states, is organized. It adapts to the reality of the market.

That is what law enforcement is saying. Similarly, it is rather ironic that the government claims to want to get young people out of the hands of organized crime. Let us look at the habits of our young people now, when cannabis is illegal.

According to a technical report published by the Canadian Centre on Substance Use and Addiction in 2011, the rate of cannabis use for the previous year is estimated at 16.7 per cent to 32.4 per cent. According to the Canadian Student Tobacco, Alcohol and Drugs Survey, the rate of cannabis use among students in grades 10 to 12 was approximately 28 per cent in 2014-15. That means, honourable senators, that even though cannabis is illegal right now, young people can easily get their hands on it. That comes as no surprise, but what will happen when Bill C-45 is passed and the use of cannabis is still prohibited for young people? Those who are using it today will continue to do so.

What is more, since the bill allows four plants to be grown in private residences, how can anyone claim that youth won’t have direct access? In light of these facts, it is unrealistic to believe that youth will be kept away from the black market and that their consumption will decrease.

We also need to hear more about the age limit to purchase cannabis. Of the G20 nations, apart from South Africa, Canada has, according to the WHO, the worst drunk driving record. This is hard to believe. Part of the reason is due to the legal age to purchase alcohol. According to the Ontario Ministry of Transportation, the peak ages of drinking and driving are 19, 20 and 21, and that drivers in this age group are almost one and a half times as likely to be involved in drinking and driving fatal and injury crashes than other drivers.

Now, it is true that some people are already driving stoned, but keep in mind that in Colorado and Washington State, cannabis-related fatalities since legalization become worse every year.

Under Bill C-45, the legal age for cannabis use would be 18, but the provinces would be able to increase this age. The provinces have so far set the legal age limit to 18 or 19. In the United States, all of the states that have legalized marijuana have set the legal age at 21. The notion of age is fundamental, and many of us have brought this up. Science shows that the brain continues to develop up to the age of 25. The use of cannabis before this age is a serious concern and is very dangerous. The submission presented by members of the Association des médecins psychiatres du Québec to the House of Commons during the study on Bill C-45 was quite worrisome. I quote:

Clinically, the regular use of cannabis among young persons translates into deficits in attention, in memory, in the speed of information processing, and in intelligence. Such disorders can lead to school failures.

Moreover, the use of cannabis increases the risk of developing psychotic disorders such as schizophrenia.

Psychiatrists, like many specialists, recommend increasing the legal age for cannabis use. Some of them favour 21 years of age, while others favour 25. In light of the science, it would be irresponsible not to consider these recommendations. Furthermore, health professionals also cautioned us about the concentrations of THC in cannabis. THC levels can sometimes reach 40 per cent, 50 per cent, or even 60 per cent. However, Bill C-45 does not even address this issue.

Both Bill C-45 and Bill C-46 have major flaws and their implementation could create chaos for provincial and municipal governments. In that regard, we already have a good example in the possibility of growing cannabis at home. Bill C-45 makes it an offence to grow more than four plants at home.

In Quebec, section 9, chapter 3 of the National Assembly’s bill categorically prohibits anyone from growing cannabis for their personal use. The Government of Quebec is clear. It will not allow cannabis to be grown in people’s homes. Apparently, Manitoba will be adopting a similar approach. In a recent article that appeared in Le Devoir on February 8 with the headline “Growing cannabis at home: Ottawa warns Quebec,” the federal justice minister said:

Bill C-45 is permissive in the sense that, if some provinces want to adopt more restrictive provisions about growing plants at home, for example, they are free to do so. But there are limits.

I would really like the minister to tell us how else she can impose limits if not through legislation or regulation. What limits is she referring to? The Government of Quebec of course replied that it was confident that it was acting within its jurisdiction and that there were legal opinions in support of its position. It is quite obvious that this will go before the courts. They are doing nothing to help citizens have a proper understanding of the rules. However, in the speech she gave about Bill C-45 on May 30 in the other place, the minister said the following, and I quote:

Provinces and territories would generally be responsible for the distribution and sale components of the framework. They would also be able to create further restrictions as they saw fit . . . [and] along with the municipalities, could create additional rules for growing cannabis at home, including the possibility of lowering the number of plants allowed for residents and restricting the places in which cannabis could be consumed.

The government says it wants to protect young people’s health by restricting their access to cannabis. How is it doing that? It wants to allow people to grow up to four cannabis plants per household, but it is not going to limit the size of the plants or their THC content. Picture this: a 19-year-old decides to grow his four legally permitted plants at home. He has two brothers aged 17 and 15. Can somebody explain to me how the government is going to prevent minors from accessing cannabis in this scenario? Police officers showed me photos of cannabis plants they seized while executing a search warrant. Tall as apple trees, their production capacity was phenomenal.

My point is that letting people grow cannabis at home will make it impossible to control quality, THC concentration, market price, underage access and traceability and impossible to issue health warnings and prevent people from growing cannabis near schools and in underprivileged communities. The logical solution would be to ban home growing. Even the college of veterinarians is worried about the health risks for pets. Yet the government is not worried about kids being able to access marijuana in their homes.

Honourable senators, I find it impossible to believe that the government’s goal in legalizing cannabis is really to safeguard public health or public safety.

You will see, honourable senators, that with this bill, we are facing a colossal challenge. We need to try to cover all the angles and issues it raises, evaluate all the issues associated with it, highlight its many flaws, consider our options for possibly amending it to mitigate its harmful effects on our society, especially our youth, and amend it without adding any inconsistencies.

For example, yesterday, the Senate Standing Committee on Legal and Constitutional Affairs questioned Health Canada and Department of Justice officials about the incongruity of imposing a $200 fine for having a cannabis plant that is too tall when there is no height restriction set out in the bill. The officials told us that there was a height standard in the original bill, but it was unexpectedly deleted by the House of Commons during the amendment process, hence the incongruity of the $200 fine.

To show us that the government has considered the impact of cannabis legalization on drivers, Bill C-46 on impaired driving was tabled at the same time as Bill C-45. However, that bill, which is currently being studied by the Standing Senate Committee on Legal and Constitutional Affairs, has been found to have serious flaws, as Senator Batters mentioned in her speech on Tuesday: constitutional problems, operational problems, and so on.

Our law enforcement agencies must be trained, equipped and prepared to properly deal with the new reality that Bill C-45 will likely create. Minister Fournier appeared to be thinking along the same lines in his letter to the Minister of Justice on February 23. He said:

In conclusion, we want to reiterate how important it is to delay the coming into force of the federal legislation until we have access to the appropriate scientific equipment. This is a matter of keeping our roads safe for our citizens.

On the topic of preventing impaired driving related accidents, both Bill C-45 and Bill C-46 fail to address the issue of public transportation operators. How can the government explain that it has done nothing in that regard, even though there have been some air and rail tragedies in recent years connected to operators who were impaired by drugs or alcohol? I remind senators that the Transportation Safety Board recommended government action in its report published on November 2, 2017, in response to a plane crash involving alcohol.

Bill C-46 introduces the notion of random or mandatory — the term used in the bill — screenings of motor vehicle operators for alcohol only. Nowhere in the bill does it mention random tests for drugs or — even worse — for public transportation operators. This means that if a customs officer suspects a pilot of being impaired, he or she could decide to ask the pilot to take a test after landing. However, it would be impossible to require a test before the pilot has taken off. This oversight or unwillingness to take action is staggering. The United States has required such tests for over 10 years for individuals who work in sensitive jobs, like pilots, train conductors, truck drivers, and people who work in nuclear energy.

Furthermore, what about cannabis use in the workplace? How are employers now supposed to handle employees who use the drug during their work hours, before work, or on their lunch or supper breaks? Some people will reply that this reality already exists and it will be nothing new, but that is false. Legalizing cannabis will normalize it. In fact, in my view, the debate surrounding legalization has already had that effect, and new problems are emerging.

As I said at the outset, I personally believe that we need to fight this poorly written bill at second reading and give the government a chance to do its homework and introduce a new bill taking all the issues into account. The experiences of other jurisdictions can be studied, but we must never forget that Canada is the first and only country in the world to want to legalize marijuana use for people under the age of 21. More importantly, we need to base our decisions on what science has taught us regarding the damage to people’s health caused by drug use. When I talk about people, I also mean we need to be particularly sensitive to how this will affect Indigenous peoples, who are severely affected by the scourge of drug abuse.

Everyone agrees that past governments and current policies have and are causing irrevocable affliction to Indigenous communities. This is one reason why the current government is seeking to adopt and implement the UN Declaration on the Rights of Indigenous Peoples. Part of this declaration is the right to self-determination. For this reason, I want to highlight a few statements by Regional Chief Isadore Day at the Health Committee hearings in September of last year. He said First Nations “. . . are also not prepared to deal with the ramifications of Bill C-45.” He went on to ask: “. . . does Canada even know the full impacts of cannabis yet?”

Chief Day also reminded the committee that American Indian tribes were negatively impacted when Colorado and Washington legalized cannabis.

He reiterated that one of “. . . the biggest concern that first nations in Ontario and across the country have with Bill C-45 is the health and safety of our peoples.”

He cited statistics that cannabis is the second most abused substance amongst Indigenous people. In Ontario alone, he added, “. . . an additional $33 million was needed to treat first nations drug and alcohol addictions.” He concluded by stating, “. . . there appear to be more questions than answers. This leaves first nations . . . in a compromised state leading into an accelerated timeline . . . .”

Yet on September 12 Mr. Blair said that it is important that we focus on getting this job done as quickly as we are able.

I simply do not see the urgency, especially in light of Chief Day’s concerns. Unlike fentanyl that causes, on average, four deaths a day in Canada, no one has died from a marijuana overdose.

Honourable senators, I urge you to vote against this bill at second reading. If, however, that is not the will of the majority, I urge the committees that will study this bill or do a pre-study to carefully consider some mitigation measures that could be added to Bill C-45 regarding, for instance, when it comes into force, the legal age for cannabis use, the use of money from tax havens in the commercialization of cannabis, crucial prevention that should come before cannabis legalization, random drug testing of public transit drivers and other high-risk employees, THC concentration in the cannabis to be legally sold, limits on domestic production, important clarifications to consider when it comes to shared constitutional jurisdictions, the impact on international treaties, border controls, access to neighbouring countries and allies, advertising, tracking systems, impacts on the workplace, the price offered by the black market, the realities facing Indigenous peoples, and lastly, shareholders who try to hide behind a corporate shield.

There are so many questions and so few answers. To this flurry of questions I would add one last one: was this really necessary? I hope that senators will ask themselves whether legalizing cannabis will help our country to advance, make us stronger, and ensure that our country continues to change for the better.

I would have liked the minister to tell us that she looked at what other countries like Norway are doing. It has the lowest rate of consumption among young people. I would have liked the government to look at the best paths to take instead of the worst. I would have liked the government to model itself after the best and invest, like Norway is, in cultural and sporting activities instead of just throwing in the towel and accepting defeat. I can’t believe that young Canadians are going to be used as guinea pigs for the rest of the world and Canada is becoming a research lab that will be used by other western countries.

At the beginning of my speech I talked to you about a government’s duty to exercise due diligence, which is essential when we’re faced with so many potential future risks. Honourable senators, I agree that we must get marijuana out of the hands of young people and get rid of organized crime. However, if the solution the government is proposing doesn’t work and in five years we see that the government was wrong and that the situation has gotten worse, what then? Could we go back to the way things were? No, it’s a one-way ticket. It’s a trap.

In almost every speech, senators touched on the many uncertainties and questions surrounding cannabis legalization. Due diligence should be our guide from here on out. In the case of Bill C-45 specifically, given all of the uncertainty and all these unanswered questions, I believe that due diligence means not passing this bill and asking the government to go back to the drawing board.

Please, Mr. Trudeau, take a page from the best in the world, not the worst. Thank you.

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