[Recorded by Electronic Apparatus]
Tuesday, October 24, 1995
.1557 
[English]
The Chairman: We will resume clause-by-clause consideration of Bill C-7, An Act respecting the control of certain drugs, their precursors and other substances.
Colleagues, we have come a long way through the clause by clause. We have a number of items that were stood at the last meeting. You have in your places a comparative summary of the fines related to various offences in the existing legislation and in the current legislation and the amendments.
You also have before you an updated package of the stood clauses that we must deal with, some of which have already been amended and will be going through. There is also a package that is labelled ``For Use in Parliament''. It contains a few additional amendments being proposed by the government, which will be dealt with as we meet the clauses to which they relate.
With regard to the amendments being proposed by Mr. de Savoye, he's indicated that he would prefer to deal with his amendments as we meet those clauses rather than to flag the general issues. In the intros, we'll deal with them as we come upon them.
With regard to Dr. Hill, he also has stood a couple of clauses that he would like to deal with in detail as we hit those clauses. I had extended the opportunity to make some general comments on the nature of any concerns and I'll try to put some focus to the areas of concern. I've also extended to Dr. Hill an opportunity to present to the committee a few comments with regard to the issues he will be raising as we hit the clause-by-clause review of those clauses that he has asked to be stood.
At this point I would turn the floor over to Dr. Hill.
Mr. Hill (Macleod): Thank you, Mr. Chairman.
The philosophical basis behind our concerns is that we have taken subclauses 3(1) and 3(2) out of the bill. They were very broad sections giving powers that the health food industry in particular found a concern.
.1600
The very same broad powers exist in the regulations, broad powers for the Governor in Council to designate anything they want to be included in the schedules, other such broad clauses.
Philosophically, I can express the opposition...it's to the ability to make those very broad inclusions into the regulations and virtually undo the good we've done with taking out clause 3. That is the over-riding concern I have. When I look at the amendments made by the Bloc, I look at them in that light, and I hope the other members of the committee will do that as well.
Just as a secondary concern - and this was just brought to me - I hope the committee knows that an alteration was made last night to Bill C-61 that affects Bill C-7. I would like to have that openly discussed - the ramifications, how that can actually happen.
I presume the president knows of this alteration.
The Chairman: I'm sure in this room we will know.
Is there anything at this point that the officials would like to comment on?
Mr. Normand.
Mr. Gérard Normand (Counsel, Legal Services, Canadian Security Intelligence Service): First of all, the power that is found under clause 60, for the Governor in Council to amend the schedules, already exists in the Narcotic Control Act and the Food and Drugs Act, so this is not something new.
As far as subclause 3(1) is concerned, it allowed for the inclusion of substances on the basis of the effect similarity, without the government having a word to say about it. So as a matter of course these substances, for certain cases, would have been brought in and allowed for prosecutions to be laid against persons.
As far as clause 60 is concerned, before any substances are included in any schedules, the Governor in Council will have had to make an order to that effect, so it's not something that would just happen like that. The process would be much tighter.
So subclause 3(1) and clause 60 do not have the same process at all.
The Chairman: Are there other matters, comments or questions at this time that other members of the committee would like to raise?
Dr. Hill, do you have a further matter, or would you like us to proceed?
Mr. Hill: No, we may proceed.
The Chairman: With regard to Bill C-61, we have a copy of the relevant section that we will circulate to members of the committee. We will address that at the appropriate time.
On clause 2 - Definitions
The Chairman: We will now move to clause 2 of the bill as amended. We're going to deal with the first item of the additional amendment of the government. It is on the top page of the document entitled ``For Use in Parliament''.
Could I have a mover of this government motion?
Ms Fry (Vancouver Centre): I so move.
The Chairman: Thank you. It is moved by Dr. Fry. Because this is a new item, I wonder if someone would briefly speak to the amendment.
.1605
Mr. Normand: There were some concerns regarding the definition of ``analyst'' and ``inspector''. You have three different places where this definition and the notion of who should be an analyst or inspector are covered in the bill. You have that in the definition, which is the first amendment proposed, the amendment you have before you. We have that, respectively, under clauses 43 and 29 and, finally, under clause 54, as you will see later.
The purpose of these proposed amendments is to provide for some guidance, some qualifications in the regulations that the minister may follow. If the regulations are there, of course, the minister will have to follow them in designating either an inspector or an analyst. In order to restrict the designation to only those persons who would meet those criteria, those qualifications, we had to amend the analyst and inspector definition to delete the last part.
In the case of the analyst, which is the first one coming up in clause 2, it would be to delete ``or under section 28 of the Food and Drugs Act'', in order that the persons who would be designated would be restricted to only those meeting the qualifications that will now be made under clause 54, the regulation-making authority. So that's the purpose of it; a long answer for a short amendment.
[Translation]
Mr. de Savoye (Portneuf): I reviewed this amendment and others with regard to the definition and the professional qualifications of analysts and inspectors. It seems to me, at first glance, that these amendments satisfy the concern for which the Bloc québécois itself had proposed amendments.
To the extent that these amendments do the same thing that we want to accomplish, we are disposed to accept this amendment, and in due time we will withdraw the amendments we proposed in order to make room for the government amendments.
However, I would like our legal counsel to confirm that these amendments will have the same effect as our own.
[English]
Ms Diane McMurray (Legal Counsel): In my opinion, these are consequential amendments and they are certainly necessary, I agree with that. But at a cursory glance, and I just had a cursory glance at the qualifications the way they've been drafted, the way it has been drafted is, if I remember rightly, subject to any regulations that are made under whatever it is, subclause 54(n), and there is no obligation to make regulations under clause 54. If no regulations are made prescribing the qualifications of an inspector, the inspector will still be able to be designated.
The way Mr. de Savoye's amendment has been drafted, I think, says there shall be no inspector unless qualifications have been prescribed. This essentially places an onus on the Governor in Council to make regulations setting out qualifications for the inspectors, because if they don't there can be no inspectors designated. So I am not altogether sure.... In fact, since I'm working for Mr. de Savoye and I'm not working for the executive, I would have grave concerns agreeing that they do the same thing.
The Chairman: Thank you.
Mr. Normand: Effectively, we say subject to the regulations. The wording, the way it is mentioned there - and it is the intent - the minister will need to refer to those regs as long as they are drafted. But the intent is really to draft them, so it's a way to link the designation by the minister to those regulations. That's the easiest formula we have found to do that. Instead of having the qualifications and all that in the bill, we prefer to put them in the regulations.
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[Translation]
Mr. de Savoye: If I understand you correctly, you are telling us that the purpose of the amendment is to have appointments meet pre-established criteria.
M. Normand: Yes.
Mr. de Savoye: What our legal counsel is telling us is that, in fact, the proposed amendment would have an effect that is not sought but which would remain possible.
Mr. Normand: Yes.
Mr. de Savoye: Is there any way we can tighten the amendment you are proposing before we get to it? You could take a few minutes to do so, so that we will not encounter this problem in the course of our work this afternoon.
Mr. Normand: I'm sure we can find another formula. We could take a few moments to look at it when we get there, because right now we have only reached the amendment dealing with section 2, the one on the analyst and the inspector. If I understood correctly, the lady was referring to sections 29 and 43.
Mr. de Savoye: So you are suggesting that we carry on, and when we get to this section, you will have a tighter wording to propose.
Mr. Normand: We'll try to find wording which will answer the concerns of the legal counsel. I'm sure we can find a solution.
Mr. de Savoye: I agree with this procedure.
[English]
The Chairman: I would ask Mr. Normand if government amendment G-0 should be stood at this time, or whether we could just deal with G-0 at this point.
Mr. Normand: Yes. I don't think the relationship -
The Chairman: In clause 2 it's not relevant.
Mr. Normand: No, not necessarily relevant for the other amendments we'll be looking at later. We could move along with this one.
The Chairman: Oui. If acceptable, we will proceed and deal with G-0.
Amendment agreed to [See Minutes of Proceedings]
The Chairman: We now move to the full package. These are the amendments numbered with the prefix ``B'' and ``G''. The first one is amendment B-1 and is moved by Mr. de Savoye.
[Translation]
Mr. de Savoye: I'm extremely happy that Bill C-7 was referred to the Standing Committee on Health rather than to the Standing Committee on Justice and Legal Affairs, of which I am a member.
In that regard, it seems essential to me that Bill C-7 be always under the control of the Health Minister because it is first and foremost a health matter. The Bloc wishes to emphasize this essential condition.
[English]
The Chairman: Are there any questions or comments?
Departmental officials, would this create a difficulty if there were, for some reason unknown to me at this point, a point in time when there was not a minister of health appointed?
Mr. Bruce Rowsell (Director, Bureau of Dangerous Drugs, Department of Health): I guess the concern when this was drafted was that the department of health act had not been passed and it still has not been passed. Therefore, it would be the Minister of National Health and Welfare. It would then be changed when the minister became the Minister of Health.
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However, in talking with the gentlemen who drafted the legislation, I've found their feeling is it is a policy of the Privy Council Office to draft this way to leave it open so there's more flexibility for the government in order to be able to identify a minister. The Minister of Health will be designated, but it won't be within this piece of legislation. So by leaving it as ``Minister'', it will be designated as the Minister of Health.
I'm sympathetic with Mr. de Savoye. It is nice to have that foremost in this piece of legislation, and as a Health Canada official, I'd like to see it there. But because that designation is not official at this point in time, we decided to leave it as ``Minister'' in the way it's presented here.
Mr. de Savoye: You realize the amendment says ``or, where the Minister of Health is unable to act, such members of the''. We keep it as it is actually.
So we are not restricting what is already there in any way at all. We are just pointing out the importance of this legislation being under the authority of the Minister of Health. But if at one point in time there is no Minister of Health in an acting capacity, then whatever is already written remains, because we have not changed it. So you have exactly what you are aiming for. All the flexibility is there, but we are adding the important ``Health'' later.
Mr. Rowsell: With the machinery of government, there will always be a person designated to fill in when the Minister of Health is not available or is unable to act. That's a process that is already in place.
I'm not sure today that you could put in ``Minister of Health''. It would have to be ``Minister of National Health and Welfare''. Then when the department of health act comes through and is passed by Parliament, it would be reverted back to ``Minister of Health''.
The Chairman: It wouldn't work today, I understand. But I think I understand your intent.
Mr. de Savoye: I have no objection to using the proper wording. We had such an occurrence the last time we met with Approvisionnements et Services.
The Chairman: Let me ask the officials or counsel something. In the event that minister titles were to change in the future, would we have to then amend this legislation?
Mr. Rowsell: It would be automatically done.
The Chairman: It would simply be conformed to those changes?
Mr. Rowsell: Yes.
Ms Fry: I was going to suggest what Mr. Rowsell just said, that it be at this point in time ``Minister of National Health and Welfare'', because that's officially what the minister's designation is until the new act comes into being.
Mr. de Savoye: I agree with that wording.
The Chairman: Is it acceptable to withdraw your amendment?
Amendment withdrawn [See Minutes of Proceedings]
Ms Fry: You will change it yourself, will you, Mr. de Savoye?
Mr. de Savoye: Oh, yes. It's a typographical error.
Some hon. members: Oh, oh.
The Chairman: So your new amendment would read that ``Minister'' means the ``Minister of National Health and Welfare''.
That is moved by Mr. de Savoye.
The amendment is on the floor. It's not numbered. The amendment we're going to deal with here is the one just verbalized by Mr. de Savoye.
Mr. Rowsell: For clarification, then, is the portion between the commas, ``where the Minister of Health is unable to act'', in or out?
The Chairman: That's in.
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Mr. Rowsell: I think that is already a part of the machinery of government. I think that's redundant. A minister is already designated by other means if the Minister of National Health and Welfare is unable to act. It automatically fills in.
Ms Fry: The Privy Council has designated someone.
Mr. Normand: Earlier today we discussed this matter with drafters from the Department of Justice. They said that to provide for a specific minister and then provide if he is unable to act is quite unusual. It did not exist in any other statute.
The Chairman: In that case are you also suggesting that the balance of the clause be deleted, and just say that the minister shall mean the Minister of National Health and Welfare?
Mr. Normand: As it is currently.
The Chairman: If you're telling me that the machinery of government says if that minister is not able to act, there are rules that provide for.... So what's in the bill is redundant.
We're looking at the definition of minister - the minister shall be the Minister of National Health and Welfare.
Is Mr. de Savoye's amendment agreed to?
Amendment agreed to [See Minutes of Proceedings]
[Translation]
Mr. de Savoye: Thank you.
[English]
The Chairman: On clause 2, we dealt with some amendments at the last meeting. Just now we dealt with the government amendment with regard to the reference to the Food and Drugs Act and the amendment we just passed. We are now at the point where we can deal with clause 2 as amended and further amended today.
Clause 2 as amended agreed to
On clause 5 - Possession of substance
The Chairman: I would refer you to amendment G-7 on page 13 of your package.
Mr. de Savoye has requested that clauses 5 through 11 be stood. At this point we have not dealt with any amendments. We have as a reference the summary of the fines and penalties for various offences. Because of the importance of this one, I think I will....
Can I have a mover for amendment G-7?
Ms Fry: I so move.
[Translation]
Mr. de Savoye: During last Tuesday's presentation, the Department officials indicated to us that the simple possession of marijuana or hashish, in maximum quantities of 30 grams and 1 gram respectively, would not lead to a criminal record, nor to fingerprinting and filing in what is called CPIC.
.1625
I would like the situation to be explained again, first of all for the record and also to make sure we understand this mechanism, so that it is crystal clear for everyone. I do not have legal training and I have tried to find in the text how this differs and how it could help someone avoid having a criminal record. I have not managed to convince myself to my satisfaction, but we have specialists with us, and I am convinced that they will be able to explain this to us brilliantly.
Mr. Paul Saint-Denis (Senior Counsel, Criminal Law Policy Section, Department of Justice): Mr. de Savoye, if I've understood correctly, you want to know under which circumstances someone will get or not get a criminal record.
These provisions are included in the Identification of Criminals Act. It states that in certain cases the police can take fingerprints. Normally, this procedure is used for indictable offences and for hybrid offences, that is offences which are either criminal offence or summary offences. When it is solely a summary offense, fingerprints are not taken.
I must make a preliminary remark here. The term ``criminal record'' is never defined. We talk about judicial records, criminal records and convictions. It means different things in different cases.
In the case of possession of 30 grams or less, fingerprints would not be taken, which normally means that the fingerprints of the accused would not be sent to RCMP's computerized system. So normally, it would not be possible to retrace the history of that offence, which would not be the case if the person's fingerprints had been taken. In this case, the record would be in the RCMP's computerized system, and it would be possible to see if there are other offences or not. It is the taking of fingerprints that makes a big difference. When the fingerprints are taken, an individual's criminal past can be retraced.
Mr. de Savoye: Let's take an example. A young man or a young woman is arrested for possession of a small quantity of marijuana. It's a summary offence, no fingerprints are taken. Three years later, this young man or this young woman applies for a job and is asked if he or she has a criminal record. In Quebec, that is the type of expression that is used. Can he say that he does not have one and be absolutely sure of what he is saying? If he goes to the American border, should he fear being picked up by the computer in the United States and not being allowed to enter the country?
Mr. Saint-Denis: If the current provisions of the Narcotics Control Act were used, the fingerprints of the individual you were referring to would probably be taken, even if the procedure is by way of summary conviction, because possession is a hybrid offence. It is possible to fingerprint a person even when proceeding by way of summary conviction. Because the offence is a hybrid offence, the individual's fingerprints can be taken, whether the procedure is summary conviction or indictment. According to the new provision, if the offence involves fewer than 30 grams, we won't have a choice: the police officer will not be able to take fingerprints.
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Mr. de Savoye: Where is that in the text?
Mr. Saint-Denis: It is not in this text. It is in a different Act. The Identification of Criminals Act states that fingerprints can only be taken in certain cases. The case being excluded deals precisely with some summary offences.
Mr. de Savoye: So, this young girl -
Mr. Saint-Denis: With the new provivisions, as amended, it will not be possible to take her fingerprints. So, she would not be listed in the RCMP's computerized system.
However, I must admit that I'm not sure that she could state that the had never been convicted. A pardon can be granted at some point. I regret that I'm not as familiar with the pardon system as I am with other systems. Once pardon has been granded, I do not know if individuals can say no when asked if they have ever been convicted. I do not think they can.
Mr. de Savoye: Could someone clarify this for me?
Mr. Normand: Is this question dealing with fingerprinting or criminal records?
Mr. de Savoye: I would like to know if a young man or a young woman who is arrested in possession of half a joint, which is certainly less than 30 grams, would get a criminal record or not, according to the terms of Bill C-7 as the governement is proposing to amend it. Can a person say that he or she does not have a criminal record and must he or she fear being picked up when crossing the American border? In everyday life, these are two issues that interest young people, because, like everyone else, young people can indulge in escapades. We don't want to ruin their life over such incidents.
Mr. Normand: So, should someone who has been found guilty of an offence as defined here say that he or she has a criminal record? The answer is yes. If the question is asked the person will have to declare it, because he will in fact have one. The purpose of this provision, as Mr. Saint-Denis said earlier, is that because the offence is a summary offence, fingerprints will not be taken and it will not be possible to trace the criminal record. The person will, however, have to answer yes if he is asked.
Moreover, if we investigate the person without asking the question, it would be impossible to retrace the criminal record, but there will be one.
Mr. de Savoye: You're telling me that if the person says no, no one will be able to prove that he or she has one. What would happen at the American border?
Mr. Normand: That is correct.
Mr. de Savoye: There would be no problem there either?
Mr. Normand: No, because it would not be part of CPIC, a type of central registry where records are kept. The records are kept and retraced using fingerprints. However, when the person is asked if he has a criminal record, he will have to say yes, because he will have one. The purpose is not to decriminalize the act at issue. So the criminal record exists.
Mr. Saint-Denis: As regards crossing the American border, as Mr. Normand said, if the information is not in the data bank which is transferred to the Americans, you could assume that they won't have access to it. Therefore, the individual would not have a problem at the border. Since the information is not there, there should not be a problem.
Mr. de Savoye: I do not have any more questions on this topic for the time being.
[English]
The Chairman: There being no further interventions, I would then -
Mr. de Savoye: Mr. Chair, I said I had no more questions on that specific subject. I wondered if there was more on that topic. However, I have one more question here, and maybe the clerk could help me with this.
It's on the third page of that motion, number 8.
[Translation]
- ...the ``amount of substance'' means the entire amount of any mixture or substance, or the
whole of any plant...
This refers to Schedule VII and also to marijuana. I would like some further explanation from our experts.
When it is used, marijuana, like hashish, can be mixed with other combustible substances such as tobacco. In this case, we're talking about a mixture, because in principle, tobacco is not prohibited, although it is very harmful. Is this not correct? Consequently, is it the entire mixture that must weigh less than 30 grams or just the active substance which is prohibited? Could you clarify that for me?
Mr. Saint-Denis: It is the entire substance, everything that is seized.
Mr. de Savoye: Including the tobacco?
Mr. Saint-Denis: Including the tobacco.
Mr. Normand: This is in accordance with subsection 6(1) concerning trafficking.
Mr. de Savoye: It is part of clause 5. It is a case of simple possession.
Mr. Normand: Perfect.
Mr. de Savoye: May I ask why summary conviction would be used for someone with 29.9 grams of marijuana, whereas this wouldn't be the case for someone who has mixed a gram of hashish or marijuana with 30 grams of tobacco, which would make 31 grams? I'm trying to see the logic not having similar punishment for similar offences, and I think that in this case, the offences are not similar. I'm not a lawyer and that may be the reason why I do not understand. But I need to understand.
Mr. Saint-Denis: Basically, you're dealing with similar cases. Substances are dealt with identically, whether they are rich in hallucinogenic material or not. One of the main reasons is that we're trying to make a distinction between what is a prohibited substance and what is not. It becomes extremely problematic in the legal proceedings, when for example the quantity of THC in the cannabis or marijuana substance is extremely high in one case and extremely low in another. You could ask yourself why one case should be dealt with more harshly than the other.
We have tried to eliminate essentially practical problems by saying that when we're dealing with a substance, we will take into account the entire quantity of the substance in a person's possession that has resulted in the arrest and legal proceedings. These are really practical considerations, because if we start to try to sort things out to see if there is a bit of tobacco, some flour, a bit of this or that and then at the end of the line, we end up with interminable discussions concerning the weight of more or less 30 grams, etc, this will never end. This makes it possible to lighten the work in the proceedings.
Mr. Normand: With respect to trafficking, there is a similar provision on the representation of a substance which is already in the schedule. Jurisprudence is obviously taken into account in sentencing. In some cases, people claim to be selling cocaine when they're really selling flour, but it is clear that with respect to the sentence and the offense, the nature remains the same because there is representation. You can have flour, but you can also have acetone, which is extremely harmful.
Mr. de Savoye: I do not have a problem with trafficking. I just had a problem with cases of possession of 30 grams or less of marijuana. According to the explanation you've given me, when you say 30 grams, you mean one ounce and that is extremely light. That's almost suggesting that young people and consumers take it pure, because if they're caught, the sentence will not be as stiff. There's a contradiction in that. I can probably live with it, but I do not feel that your explanations have cleared up my doubts on the contradiction that I see.
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Mr. Saint-Denis: You must keep in mind that we are trying to create a system where the accused will not be dealt with as harshly when we're dealing with truly minor substances. However, even in cases of possession where the quantity is above 30 grams, the penalties will probably not be much different than in cases of possession of less than 30 grammes.
Mr. Normand: The maximum remains the same. For 30 grammes or less, the maximum is 1,000$ or six months, or both. For more than 30 grammes, it is a hybrid offence. By way of summary conviction, for a first offence, it is 1,000$ and six months, and then, 2,000$ and one year.
So the situation is the same with respect to the sentence. It will be the same whether you have 29 grams or 31 grams. The only difference resides in whether or not the criminal record can be traced, because there are no fingerprints for 30 grams.
Mr. de Savoye: I asked these questions to see to what extent an amendment was possible. If your intention had been different, I would have suggested an amendment which would have reflected its different intention. But your intention being as it is, I have no amendments to suggest.
[English]
The Chairman: Dr. Fry had something to add.
Ms Fry: Well, my point is moot. What I wanted to suggest is that if someone had a mix of cannabis and tobacco it would be very difficult to decide how you're going to separate them. You can't burn one off; they both burn. So it becomes a practical issue in terms of how you actually separate substances. Then at source, you're going to have to have some police officer trying to separate substances that are going to take so much time and be so difficult to separate.
I think intent here is what we're talking about. If you have a small amount of marijuana mixed in with a large amount of tobacco, the intent is still there and you have to find some practical way of dealing with it. At least, that's how I see it. It would be very impractical.
Mr. de Savoye: Having been a teacher in chemistry, I know you can separate anything from anything.
Ms Fry: Sure you can, but you're going to need to take these to the lab and the analyses are going to be made.
The Chairman: I don't want to get into separation right now.
Ms Fry: Yes. Break them down to their components.
The Chairman: Dr. Hill.
Mr. Hill: This is not an issue that relates only to marijuana. We do have other things included in the schedules that may be affected.
There is a herb called Ma Huang, which contains the alkaloid ephedrine. In what quantity? Ephedrine is, of course, included as a schedule V drug, so it's not an academic argument. It's an argument that does need some consideration. I wanted to have on the record that we do have problems in other areas, with substances containing things that we have controlled here.
The Chairman: I think the point has also been made that the penalties prescribed even under hybrid situations are maximums, and that provides the opportunity to address those subtleties. It's a very good point that's been raised, but to the extent that it's possible to make those fine gradations and to determine the seriousness, I think the tools are there and it's up to the courts to decide how to proceed.
Mr. Normand: If I may add something, the section Mr. de Savoye was referring to dealt with possession of substances found in schedule VII, which are marijuana and hashish solely, so this section of mixture and weight would not apply to any other schedule than I.1.
Mr. Hill: Then I have a final question. Is the herb Ma Huang a restricted substance under Bill C-7?
Mr. Rowsell: It would be only if it was for illegal purposes.
The Chairman: That's a controlled substance.
Mr. Hill: It is not today; it's openly available. People sell it. Does it become a controlled substance under this?
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Mr. Rowsell: It stays the way it is today. There's no change for that under this bill, unless you're representing or making it for an illegal act. But no, it's not covered under its normal use today.
Mr. Hill: Thank you.
The Chairman: If there are no further comments, I will ask if amendment G-7 shall carry.
Amendment agreed to [See Minutes of Proceedings]
Clause 5 as amended agreed to
On clause 6 - Trafficking in substance
The Chairman: First of all we have amendment G-8. Could we have a mover for G-8, please?
Ms Fry: I so move.
[Translation]
Mr. de Savoye: Once again I have a few questions. Depending on the clarifications provided, I'll be able to decide whether it is useful to propose certain amendments or not.
In clause 6 on page 8 reference is once again made to the entire amount of any mixture or substance. I'm thinking of the particular case of marijuana, that is this amount of 3 kilograms that is considered to be the dividing line between far more serious offences and less serious ones.
If the marijuana plant is seized in a stoneware pot, it may may weigh quite a lot for a simple stalk with a few leaves. How does this idea of mixture come into it? Are the roots and the earth and all the rest included or is the plant simply cut off? What exactly is taken into consideration? I'd appreciate your enlightenment.
Mr. Saint-Denis: I can tell you that the pot would certainly not be considered as part of the mixture. However in the case of plants that have been uprooted, there may be some earth attached to the roots and it would also be included. It was not our intention to force the police to wash the plants before weighing them.
The reason for the inclusion of this provision is the same as for the previous one.
Mr. de Savoye: I must say...
Mr. Saint-Denis: As I explained, the purpose was not to increase the weight or diminish the effect of these provisions with respect to the weight.
Mr. de Savoye: I appreciate your clarification. I asked the question so the committee's intention would be stated clearly for the record.
I have another question, Mr. Chairman. I've examined the various penalties that apply to trafficking. Throughout schedules II, III, IV and V there are indictable offences as well as summary convictions. Schedule I deals with indictable offences with a life sentence. In schedule 1.1, there is the life sentence; an amount of 3 kilograms or less is an indictable offence liable to imprisonment for a term of 5 years less a day, but there is no longer any reference to a summary conviction which would result in a fine of $15,000 or two years. I also note that as part of the summary convictions, the fine has been removed and there is only a prison sentence. I can understand that.
I'm curious to know why in schedule I.1 the summary conviction with a fine of $15,000 or two years imprisonment was removed. As in the other cases, the two-year prison term could have been maintained. Why was it completely removed? What is the reason for that?
.1650
Mr. Saint-Denis: We discussed the matter at great length among ourselves. As you noted, we were dealing with a hybrid offence liable to either two years on summary conviction or 14 years as an indictable offense. Following representations made to the committee by witnesses as well as comments from certain members of Parliament, it was clear that an attempt should be made to reduce the maximum penalty for an indictable offence involving three kilograms or less of cannabis.
We were attempting to achieve a number of things with this new offence. One of the effects would be to reduce the number of cases of trafficking in cannabis which were clogging up the courts. This was certainly one of our aims in C-7. We also wanted to follow up on the concerns that were expressed in the committee.
We came to the conclusion that it would be possible to do away with the need for a jury and a preliminary investigation in the case of an offence or an indictable offence. The only possibility was to have a punishment of five years less a day and the offence had to be categorized as coming under the exclusive jurisdiction of a judge of the provincial court. This was one of the points of our final conclusion.
We also wanted to reserve the possibility of adding other substances to the appropriate schedule, perhaps small quantities of other narcotics. We were told that under the summary conviction procedure, it would be impossible to add these other substances to the schedule.
That meant we were faced with the alternative of either making no further additions to the substances listed in the schedule or determining that the penalty for this indictable offence would be more than two years but less than fourteen. In the latter case, there would be the possibility of adding substances to the list in either the near or distant future.
As you know, there was some reference to the committee making a recommendation for a reexamination of the national policy on drugs in Canada. But if the committee carrying out the study came to the conclusion that certain small quantities of other substances, of narcotics, should be subject to the same provisions as quantities of cannabis under 3 kilograms, then the system would have to allow for such a possibility. We therefore concluded that it should be an indictable offence liable to a term of imprisonment of five years less a day since this provided us with the best possibility for engaging on such a course. I do not know whether that answers your question.
Mr. de Savoye: My understanding is that it was more for internal administrative convenience than for any other consideration that you came up with this proposal. I was wondering if it was not simply an oversight.
Mr. Saint-Denis: No. It is to a large extent...
Mr. Normand: If I may, I'd like to add that at the outset we were thinking of an amount of 10 kilograms. We looked into what types of punishments had been handed out at the beginning of the 1990's to get a clearer idea of the situation. In most cases, even in cases involving 10 kilograms, the sentences were for approximately two years.
Here it was understood that since 90% of the cases are hybrid, a summary conviction procedure was necessary, which meant a maximum sentence of two years, whereas if the offence were described as an indictable offence under absolute jurisdiction liable to a term of five years less a day, in 90% of the cases the maximum would be increased from two years to five years less a day. This would be, then, a supplementary effect.
Of course if this system is a hybrid one... The reason is to encourage the use of the summary procedure where the maximum would have been two years instead of five years less a day in all cases.
.1655
[English]
The Chairman: If I understand it, amendment B-2 will not be -
Mr. de Savoye: Exactly.
Amendment agreed to [See Minutes of Proceedings]
The Chairman: There are no further amendments.
Clause 6 as amended agreed to
On clause 7 - Importing and exporting
The Chairman: There is an amendment, G-9, proposed for clause 7. May I have a mover please?
Ms Fry: I so move.
The Chairman: I'll give you a moment to arrange your papers.
Any questions or comments?
Amendment agreed to [See Minutes of Proceedings]
Clause 7 as amended agreed to
On clause 8 - Production of substance
The Chairman: We'll move to amendment G-10. Can I have a mover please?
Ms Fry: I so move.
The Chairman: Moved by Dr. Fry, and I'll give you a moment.
Colleagues, I must apologize. I've been reminded of a procedural matter. We, by the consent of the committee, agreed at the last meeting to stay or to stand certain clauses, which were to be dealt with at this meeting. I did not ask the committee whether it was the wish of the committee to bring the clauses back. Do I have the committee's agreement to do this?
Some hon. members: Agreed.
The Chairman: Agreed unanimously. Thank you so much.
Thank you, Mr. Clerk, for reminding me of that oversight.
Again, colleagues, we are at clause 8. Amendment G-10 has been moved by Dr. Fry.
Are there any questions and comments?
Amendment agreed to [See Minutes of Proceedings]
Clause 8 as amended agreed to
On clause 9 - Possession of property obtained by certain offences
The Chairman: Clause 9 was stood, colleagues. I'm not aware of any amendments by the government or by the members at this point. Are there any questions or comments on clause 9?
Shall clause 9 carry?
Clause 9 agreed to
On clause 10 - Laundering proceeds of certain offences
The Chairman: Similarly, clause 10 was stood. I'm not aware of any amendments at this time. Are there any questions or comments?
Shall clause 10 carry?
Clause 10 agreed to
On clause 11 - Factors to be considered
The Chairman: We'll now move to dealing with stood clause 11. There are two amendments, G-11 and -12, and also government amendment 12A. We're going to deal with these one at a time, and there may be other amendments. I think we'll deal with the government amendments first, in this order. We'll deal first of all with G-11, which is on page 27 of your package. This is effectively a preamble to link it to the drug strategy.
.1700
May I have a mover for amendment G-11, please?
Ms Fry: I so move.
The Chairman: Are there any comments or questions at this point?
Amendment agreed to [See Minutes of Proceedings]
The Chairman: We'll move to G-12 on page 29, and on page 30 en français.
We have a number of potential amendments here. I think there is a logical way to approach this clause. I'd like to deal first of all with G-12, part (a). Do I have a mover?
Mr. Scott: I so move.
The Chairman: I'd like to deal with amendment G-12, part (a), and its amendment to paragraph 11(a), which is basically incorporating schedule I.1. We are fine there, I believe, in conforming it to previous amendments.
Amendment agreed to [See Minutes of Proceedings]
The Chairman: We now have to move to G-12A. I would refer you to the supplementary government amendments in the smaller package. You will find it on page 11 in this package. I need a mover for this.
Mr. Scott: I so move.
The Chairman: I wonder if this amendment requires a brief comment from officials on its necessity.
Mr. Normand: We received word that an amendment on this would be proposed by the Bloc Québécois. We looked at it and essentially found that this additional scope was of value. As you will see, the main change here is to link the place to the fact that it's usually frequented by persons under the age of 18. This was essentially the intent that we wanted to be put forward with the notion of ``school'' in that paragraph. With that in mind, we came up with this proposal.
The Chairman: Mr. de Savoye.
[Translation]
Mr. de Savoye: I appreciate the fact that our idea was taken as an inspiration and was improved. Of course I do not intend to present amendment B-3 since this proposal is similar and goes even farther.
[English]
The Chairman: Are there any further comments on this amendment?
Ms Fry: I would just like some clarification about whether or not ``school year'' could also mean university.
Mr. Rowsell: This is now qualified by persons under the age of 18.
Ms Fry: Okay.
Mr. Normand: And with the words ``any other place'', it would link with the preceding ``places related to''.
The Chairman: Are there any further comments on G-12A?
.1705
Amendment agreed to [See Minutes of Proceedings]
The Chairman: We're dealing now with amendment G-12, part (b), which, again, conforms the scheduling, the inclusion of schedule I.1.
Mrs. Ur (Lambton - Middlesex): I so move.
Amendment agreed to [See Minutes of Proceedings]
The Chairman: We will not be addressing amendment B-3.
Mr. de Savoye: Exactly.
The Chairman: Amendment B-4 is moved by Mr. de Savoye. You will find it in your large package at around page 34. This is to amend clause 11. I'll allow Mr. de Savoye to speak to this.
Mr. de Savoye: Subclause 11(2) is talking about aggravating factors and is saying that if the court is satisfied with the existence of one or more of those aggravating factors but decides not to sentence the person, the court shall give reasons for that decision.
We're proposing here, because we're talking about aggravating factors, that if the maximum penalty is not decided by the court, then the court will explain why.
We're reversing the process here because we're talking about aggravating factors. If we're going to be serious about this, let the court explain why under aggravating factors the maximum sentence doesn't apply. I understand there could be many reasons for that, but put them on the paper.
But not just because there's no sentence - they can give a day and jump over any explanation. They would have no need to explain with what we have in front of us. With the amendment, they would have to explain in every circumstance where they don't give the maximum sentence.
The Chairman: Mr. Saint-Denis.
Mr. Saint-Denis: Thank you, Chairman. In fact, the motion by Mr. de Savoye would almost reduce to nothing the purpose behind this particular provision.
The provision is there, as Mr. de Savoye has indicated, for instances when aggravating circumstances such as those listed in clause 11 are present and the court does not impose a term of imprisonment. But at the same time, if Mr. de Savoye's proposal goes through, it would mean that only in those instances where the court does not impose a maximum sentence would it have to justify in writing. But the courts almost never impose maximum sentences. They'll impose a maximum sentence only in the absolutely worst-case scenario. It's virtually unheard of, even in cases of trafficking where there are huge quantities of substance involved.
So the situation would mean, then, that the judge would almost never have to justify.
The Chairman: Mr. Scott.
Mr. Scott (Fredericton - York - Sunbury): Thank you, Mr. Chairman.
I think actually the arguments the member is putting and the outcome of the amendment are not consistent. Basically the onus is on the court. Any time they don't have a sentence of imprisonment, they have to explain themselves. The member's arguing that any time there is not a maximum they have to explain themselves.
.1710
So the onus of explanation is larger in the original bill than it is in the amendment, correct?
Mr. Normand: As Mr. de Savoye is saying, if the court decides to impose only one day of sentencing, it will not have to justify, because there is a jail term. It's one day.
On the other hand, there's a long-standing principle as far as sentencing is concerned, and it has been this way for many years as far as the Criminal Code is concerned, that a person will get the maximum penalty if he is the worst offender, meaning that the person has a very lengthy criminal record for similar things and it's the worst-case scenario as far as the offence is concerned.
In other words, the judge would simply have to mention that it's not the worst-case scenario, period. Because we're setting it at maximum, the answer would probably always be ``Well, it's not the worst-case scenario. That's why I did not give the maximum penalty.'' Whereas if he doesn't give any time at all, he will have to justify why he's not giving a jail term.
If you set it up very high, even if he gives a year or nothing at all, the only question he has to answer is ``Why didn't you give the maximum?'', and the answer will always be ``It's not the worst-case scenario''. Whereas if you leave it with a jail term and he does not give any jail term at all, then he won't be able just to answer ``It's not the worst-case scenario''. He will have to explain why the person did not even get a week, which will be much more difficult than simply resorting to the general answer, ``It's not the worst-case offender. That's why I did not give the maximum''.
Mr. de Savoye: I guess I didn't think a judge would just use that sentence.
Some hon. members: Oh, oh!
[Translation]
Mr. Normand: It would be quite an easy answer to give because the jurisprudence is unanimous in saying that unless these conditions are satisfied, you don't impose the maximum sentence. It would therefore be a very easy answer for the courts to give if we set it that high.
[English]
Mr. de Savoye: I was a school teacher too long. I thought when you asked questions, you'd get answers.
Some hon. members: Oh, oh!
The Chairman: Are we satisfied on this matter? I'm not sure at this point.
Mr. de Savoye: I'm not satisfied, but I guess reality must sink into my mind slowly.
Some hon. members: Oh, oh.
The Chairman: There is some subtlety. I certainly understand your question. If you haven't given him the worst penalty, that means you must explain why you've done something else.
Mr. de Savoye: Let's put it another way. I understand this amendment probably won't pass, but let's state this.
We are dealing with aggravating factors, and Bill C-7 does not put the judge in a situation to account for the judgment he or she will make. That was my intent. I understand I have not reached the objective I was aiming for. So maybe in future works - and we will talk about those later - we could look at this angle, too.
Mr. Saint-Denis: In point of fact, however, it's not quite fair to characterize Bill C-7 as not requiring a justification ever. It will require justification in those instances where no imprisonment is handed down in a case where these listed aggravating factors are present.
It's just that if the maximum is what we're seeking, we almost never get it, and as Mr. Normand has indicated, the judge will simply have to state in those cases, ``This is not the worst-case scenario. It does not deserve the maximum penalty''. And he would be right in 99.9% of the cases. That is not much of a justification.
.1715
We're hoping that by requiring judges to justify no imprisonment that we'll get a better sense of their thinking. We'll also perhaps get them to think a little more clearly or focus a little more on whether or not imprisonment should be imposed.
The Chairman: The prospect of getting a fuller explanation comes in the existing wording, as opposed to the likelihood with the amendment. I think it's very interesting. Would it be your wish to withdraw that amendment, or would you like us to put it to -
Mr. de Savoye: I guess I'll withdraw because I'm sure of how many members share my concern, and voting down the motion could send the wrong message. With this motion, we are not addressing the concern in the proper way.
The Chairman: I appreciate your gesture. The motion is withdrawn.
Can we have the unanimous consent of the committee to have that amendment withdrawn from the floor?
Amendment withdrawn [See Minutes of Proceedings]
The Chairman: Back to clause 11 as amended by G-11, G-12 and G-12A. Those are all the amendments I have before me.
Shall clause 11 as amended carry?
Clause 11 as amended agreed to
On clause 14 - Sections 489.1 and 490 of the Criminal Code applicable
The Chairman: Clause 14 had been amended and stood. We now bring it back. There is a further amendment for consideration, I understand, which is B-5.
Mr. de Savoye: Yes.
The Chairman: This is on page 36 in your large package. It's a modest change, possibly.
Would you like to move that, Mr. de Savoye?
Mr. de Savoye: I so move.
The Chairman: Would you like to make a statement?
Mr. de Savoye: Please.
The Chairman: This is a statement on the amendment.
[Translation]
Mr. de Savoye: We have to put ourselves in the context of clause 14 in Part II. According to clause 12, a justice who is satisfied by information on oath, etc, can issue a search warrant. However, in clause 14, a peace officer who, pursuant to section 12, seizes a controlled substance shall, as soon as is reasonable in the circumstances after the seizure, prepare a report. That means that if the search fails to uncover anything and there is no seizure, the report will not be filed and therefore, the justice of the peace will have no information.
I imagine judges are only human beings and they need information in order to know the consequences of the authorizations they give. I also know that warrants are issued for which there is no seizure. I also know that honest people are sometimes worried needlessly by search warrants. It can be an error or a false accusation. If judges do not get any information in return, they will not be in a position to know when things go well, or when they go less well, and above all, why.
What I am recommending here on behalf of the Bloc is that a report be filed not only when there is a seizure, but in all circumstances so that the justice of the peace can know the consequences of the warrant he has authorized.
That's it, Mr. Chairman.
The Chairman: Thank you. Mr. Saint-Denis.
.1720
[English]
Mr. Saint-Denis: Thank you, Mr. Chairman. We certainly appreciate the idea behind the motion put forward by Mr. de Savoye. However, this provision to report back is there primarily because of our obligations under several international conventions, where we're required to report on substances that have been seized. In part this is in compliance with those obligations.
The other thing is that while in some instances searches or warrants for search are handed down by the courts, they're not all necessarily acted upon. For one reason or another the police may feel a search is no longer appropriate, so there is no search and no results to report. I think this would put an extra onus on the police with respect to unexecuted searches.
Lastly, I think that even within the Criminal Code context, there is no requirement to report on searches that result in nothing being seized. Normally, if a report is to be made, it will only be with respect to the property or evidence that has been seized, and that is to ensure that property is available for trial purposes at a later date.
Mr. de Savoye: I'm not talking about searches that don't happen, I'm talking about searches that do happen, whether or not something is seized.
Second, the report on point (b) goes back to the justice who issued the warrant. I want this gentleman or lady to have an opportunity to appreciate the effectiveness of the officers who presented this justice with evidence that a warrant should be issued.
I know of people who have been victims of search warrants and there was nothing to it. I don't know if someone goofed and didn't do their homework or whatever, but I think the justice should be aware that this officer presented evidence to me that he didn't follow through on. This is not one exception; it happens very often. So make sure that if evidence is presented, it has been done with the background research necessary to ensure that the justice objectives are met - and not loosely, as I've seen in some cases.
Mr. Saint-Denis: Mr. Chairman, I think one should keep in mind that when a peace officer seeks to obtain a search warrant, it's on the basis of reasonable grounds to believe that substance or property being sought will be at the place designated. It's not a guarantee that the object being sought will be there.
Inevitably there are circumstances where peace officers will execute a search and no evidence will be found. This is not to mean that the peace officers have acted irresponsibly, arbitrarily or capriciously. It's simply that based on the best information they had at the time, they had grounds to believe that material would be there.
If for one reason or another the material is not there, it's not indicative of anything in the peace officer's mind. Returning reports on unsuccessful searches to the judges would not be all that informative because the judge will not know why the matter is not there. There may be dozens of justifiable reasons why the object being sought is not there. The judge may not be particularly enlightened by the simple fact of the return of the report.
.1725
The Chairman: Does the judge or official who issues the warrant find out the results in any other way? Do they know whether or not there was a successful seizure?
Mr. Saint-Denis: If the search is successful, there is a report. The subject matter is brought back along with a report.
The Chairman: Where there is in fact a seizure, there is a report on the location in which the substance was seized and where it is now.
Mr. Saint-Denis: That's correct.
The Chairman: But if there is a search warrant issued and it turns out not to be successful....
Mr. Saint-Denis: Or if it's not executed, the judge would not know.
The Chairman: I have a feeling that's part of the point. It's almost as though it's a feedback mechanism.
Mr. de Savoye: It's one-way feedback. If you have success, I will tell you. If you have no success, I won't tell you, and I won't tell you why you had no success so you cannot better your behaviour. We are lacking here a full cycle feedback mechanism, as in any organization - the full cycle with the controls, the feedback, and so on. I'm an organization guy, and there's a flaw there.
Mr. Saint-Denis: You must remember that the standard, unless we change it, is presently that there are reasonable grounds to believe that evidence will be found in a particular site. Whether or not the judge gets feedback on successful, unsuccessful, or unexecuted warrants will not affect his judgment with respect to the next request.
Mr. de Savoye: How does he know?
Mr. Saint-Denis: Well, judges are expected to exercise their functions responsibly. In this case, they're expected to meet a standard. In fact, it's the police who are expected to meet a standard. If a judge is given sufficient information that this standard is met, he will issue the warrant.
Mr. de Savoye: How will he know the standards are met? If he's being abused, how will he know?
Mr. Saint-Denis: He might not know. If the police officer lies - that has happened, unfortunately - the justice has been deceived. He can act only on the information that's given to him.
Mr. de Savoye: So let's give him some.
Mr. Saint-Denis: But he can't act on previous information with respect to another request. He has to act on the information given to him at the time of the request with respect to that request.
Mr. de Savoye: If I were a judge and you came to me for the first time, I would certainly take your information without much questioning, because I don't know what to question. However, if you're unsuccessful, I want to know why, and the next time around, I will have questions to ask just to make sure I'll be getting all the answers I need. This is how the human mind operates - with feedback - to better the decision process. This is a decision process.
[Translation]
Mr. Normand: I would like to add something if I may. When a police officer goes to the location identified and the affidavit with the request for the warrant says there are probably drugs there, if it does not turn out that way for some reason, the only answer he can give to the justice, in my view, is that the drugs were not there. There was reason to believe they were, but they weren't. That happens quite often. We act on certain information and the judge could have reasonable grounds to believe drugs would be found in a certain place. Now unfortunately, sometimes it is not there because the people heard that the police had been informed and they changed their hiding place.
A police officer rarely knows why the drugs weren't where they were supposed to be.
Mr. de Savoye: Or it could be that there is a little old lady who has been living there quietly for 20 years, who has never bothered anybody and still wonders why the police broke into her house.
Mr. Normand: I would say that if the lady felt the police had acted abusively and unlawfully, she should go to the police commission. That is something totally different. We are dealing with purely administrative matters relating to the handling of property once it has been seized. That is the spirit of the Criminal Code and of this Act.
[English]
Mr. de Savoye: An ounce of prevention is worth a pound of regrets.
Ms Fry: I understand what Mr. de Savoye is getting at, but I'm back to where Mr. Normand is. Reporting that you didn't find anything doesn't necessarily mean that there weren't good grounds for issuing the warrant. You may go seven times to different places where the group of people keeping drugs there are so clever that they have managed not to have drugs there when you come. Instead, they manage to have a very nice 80-year-old grandmother sitting in the living room. That does not necessarily mean the drugs weren't there, or that the reason for suspecting drugs were there is good or bad, or was necessary or not necessary.
.1730
The bottom line is that not finding drugs does not mean there weren't drugs there or that the grounds weren't reasonable. Clever people can make sure there never are drugs. You can go back and back, and if -
Mr. de Savoye: And it does not mean it is so, either.
Ms Fry: But on the other hand, the question is, if you stop issuing warrants because six out of ten searches did not find drugs, that's doesn't mean you should stop issuing those warrants. You could in fact be letting off a whole trafficking organization that is very clever.
So I'm saying that the answers don't really tell you whether they're right or wrong.
I understand - and I may be mistaken - that there are criteria for reasonable grounds that a judge must consider when the judge is asked for a warrant. So if the person fulfils the criteria when they were asking for the warrant, that after all should be the only reason.
If the only reason is that the policeperson came and said, ``I want to go because somebody told me'', obviously that is not a good enough reason for a warrant. There have to be other extenuating circumstances that would bring it there.
I understand your accountability, but I don't see that in this case the failure to appropriate something actually means that the warrant was issued improperly, or that the person shouldn't...or there weren't drugs in that place.
Mr. de Savoye: Just in conclusion, it's a good thing that I am not a judge, because otherwise I would like to learn the outcome of the acts I put forward.
I understand and agree with everything you say. I say that if a judge has a decision to make...and if I was a judge, I would want to know the outcome. Obviously I'm not a judge, and probably I don't have the competence to be one, because that would be one of my criteria.
Mr. Normand: Mr. de Savoye, nothing precludes a judge from finding out.
[Translation]
The justice of the peace could easily ask the police officer a little later, and as you suggest, could then form his own opinion. There is nothing stopping him from doing so.
[English]
Mr. Scott: Just to follow that, that's what I was thinking. Other than a formal explanation of what happened, most of the other information exists. In a case where someone is appealing to the judge for a warrant, given the position the judge is in, it puts them in a strong position relative to the person who's asking for the warrant.
So I think that information would be available to someone who would obviously be as keen a judge as my colleague.
For what it's worth, if I'm ever charged with anything, I would want you to be my judge.
Some hon. members: Oh, oh!
An hon. member: Motion carried.
Some hon. members: Oh, oh!
The Chairman: Now, colleagues, this is a very important discussion. The issue of the judge's decision on granting the warrant goes without question. There has to be a standard met. We put our confidence in judicial appointments to ensure that the high standard is met.
There is a question, though, that I just have to ask.
Mr. Saint-Denis, I certainly don't want to get into a situation where we're making people do work and prepare substantial reports that wouldn't be useful. You did say, however, that if they did get these reports where there were searches but no seizures - they were unsuccessful searches - that it shouldn't affect the judge's performance in the future with regard to granting warrants.
I would then ask you quite simply, what then is the purpose of reporting successful searches?
.1735
Mr. Saint-Denis: In part it's to bring the seized matter before the court. If a court orders a search warrant and something is seized as a result, it's to maintain the court's control over that material. Also, though, as I said earlier, our international obligations require us to submit a report in these circumstances. So it's a combination of two things.
The Chairman: So it has nothing to do with accountability to the judge with regard to his success rate in issuing warrants -
A voice: Oh, oh.
The Chairman: - but rather, as you say, simply to keep control and the continuity of a matter in progress.
Mr. Saint-Denis: That's correct.
The Chairman: I understand it.
Mr. de Savoye: This is B-5.
The Chairman: Would it be your wish to withdraw B-5?
Mr. de Savoye: No, let's just dispose of it.
Amendment negatived [See Minutes of Proceedings]
The Chairman: We had amended clause 14 at our last session. There are no further amendments other than B-5, which we've just dealt with.
Clause 14 as amended agreed to
On clause 29 - Designation of inspectors
The Chairman: There are two amendments. We will deal with B-6.
Can I have a mover for amendment B-6?
[Translation]
Mr. de Savoye: Mr. Chairman, you will remember that the government had moved a series of amendments which would have had the same effect as the amendments moved by the Bloc québécois. However, after we consulted with our legal counsel, it would seem that both series of amendments are not quite the same. I asked our experts, at the beginning of this meeting, if they could change somewhat the wording of their amendments so that the amendments put forward by my party would no longer be necessary. Has this been done?
Mr. Normand: During the discussion, I have thought about the wording that could bring both series of amendments closer together. We could start with the French version, which could read as follows:
- Le ministre peut, conformément au règlement pris en vertu de l'alinéa 54(1)n), désigner
quiconque... and so on with the text. As for the English version, it could read as follows:
- The Minister may designate, in accordance with the regulations made pursuant to paragraph
54(1)(n), any person
Mr. de Savoye: Can our legislative counsel tell us what she thinks about this amendment?
.1740
[English]
Ms McMurray: Well, it's better than what you have. Since we're being honest here, I can say it's not as good as I'd like.
When you get into a court of law words can be given so many spins. I like something in the negative: you can't do it unless you do the following. To me that's a heck of a lot clearer than saying, the minister may, in accordance with the regulations.... Does that mean he has to do it if he does it in accordance with the regulations? I'm not sure what that means. I'm not sure it's clear enough.
If you're asking me which I would prefer, I would prefer something in the negative saying, you shall not do this unless you do that.
I can tell you something. The government's drafting in subclause 29(1) is the most unusual drafting I have ever seen. It is not the normal drafting that comes from Justice.
I know this stuff. I look at it every day. You usually see it in the form of ``no person shall do this'' or ``no person shall do that unless'' when you want to make it obligatory and crystal clear without telling the cabinet they shall do this or that.
It's very unusual. I've never seen a regulation that says, the Governor in Council shall make regulations doing the following. Whether or not you could in fact do that is a very neat legal question.
The point is, you just don't see it in federal legislation. I'm not so sure it can't be done, but that's a neat legal question that isn't relevant at this point.
There are ways of achieving the same thing. Since Mr. de Savoye is asking me, I would feel more comfortable.... I would not feel.... It's better than what they have in subclause 29(1); it's an improvement. I'm not so sure I'm completely satisfied it's as strong as it might be.
Mr. Normand: Maybe in answer to the comments where you said the current clause 29 is something that is absent in federal legislation -
Ms McMurray: I didn't say ``absent''; I said ``not usual''.
Mr. Normand: - subsection 22(1) and section 28 of the Food and Drugs Act say the minister may designate any person as inspector or any person as an analyst for the purpose of the enforcement of this act.
Ms McMurray: I don't have a problem with that.
Mr. Normand: It is effectively there right now.
Ms McMurray: It doesn't say what you're saying in subclause 29(1). Quite frankly, the argument that because something exists in legislation, ergo it is good.... The other side to that argument is that something in legislation may in fact be defective now and perhaps should be changed. That's an equally valid argument.
The Chairman: We have a drafting debate going on here.
Ms McMurray: Well, I'm the drafter here. I don't think anybody sitting around this table is a drafter. Am I right?
The Chairman: Well, I think that's probably the case. That being the case and because we want to make the legislation as good as possible, there is a possibility this issue might be dealt with even at report stage.
It's small enough to make sure the language is there if we don't feel we can deal with it adequately at this time.
[Translation]
Mr. de Savoye: I thank the legislative counsel for her opinion. It was enlightening. I understand that there would be a surer way of doing this. However, I understand also that this new text is an improvement that will allow us, that is the intent, to achieve the same aims. Since I will be moving an amendment later, I think I can live with this new version.
[English]
The Chairman: Would you like then to withdraw B-6?
[Translation]
Mr. de Savoye: Pursuant to the Standing Orders, I withdraw amendment B-6.
[English]
The Chairman: Do I have the consent of the committee to withdraw B-6?
Some hon. members: Agreed.
The Chairman: We need a mover for the proposed amendment. Possibly Mr. de Savoye would so move.
.1745
[Translation]
Mr. de Savoye: Go ahead, tell me what I must move.
Now then:
- The Minister may, in accordance with the regulations made pursuant to paragraph 54(1)n),
designate - etc.
[English]
Okay, amendment B-6 was withdrawn and is now replaced by the amendment that has just been moved by Mr. de Savoye, which was read to you in French and English.
It would read:
- the Minister may, in accordance with the regulations made pursuant to paragraph 54(1)(n),
designate
Amendment agreed to
The Chairman: This means we will not move paragraph 26(a) from your package.
We are now back to clause 29 as amended by the motion we just passed.
Clause 29 as amended agreed to
On clause 30 - Powers of inspector
The Chairman: There are a number of amendments here and we'll deal with them. First of all, let us turn to G-27 in your large package.
May I have a mover for G-27? Moved by Mrs. Ur. Thank you.
Are there any questions or comments on G-27?
[Translation]
Mr. de Savoye: One moment, Mr. Chairman. G-27 is fine, I have something on G-28.
[English]
The Chairman: Shall we deal with G-27 first? Are there no further questions or comments on G-27?
Amendment agreed to
The Chairman: May I have a mover, please, for G-28. That would be Mr. Scott.
[Translation]
Mr. de Savoye: This is an amendment to exempt the records of the medical conditions of persons. I would like to move a sub-amendment. The clerk can perhaps tell me how to go about doing this. I'm giving notice now in order to show the relevance of such a sub-amendment and to find out how to go about this.
I would like to add:
- or any information in or in relation to those records
[English]
So basically the amendment in front of us is actually to include ``other than the records of the medical condition of persons''. If the clerk can help me, I would wish, one way or the other, to add ``or any information in or in relation to those records''.
The Clerk of the Committee: You can move an amendment to the amendment.
Mr. de Savoye: Okay. So tell me when I should do that. Is it the proper time now?
The Clerk: Right now.
Mr. de Savoye: Okay, so I do.
The Chairman: So we're dealing with G-28 and you would like to propose an amendment to G-28.
Colleagues, the proposed amendment is an addition that would amend G-28 as you see it. G-28 says: ``other than the records of the medical condition of persons''. It would then add ``or any information in or in relation to those records''.
So there's an amplification. It extends to information directly or indirectly related to those records - I guess that is an interpretation - ``and make copies thereof''.
This amendment is moved by Mr. de Savoye. Are there any questions?
Ms Fry: Mr. Chair, I have a clarification to ask of Mr. de Savoye. If, for instance, an inspector or someone suspects the person who is seeing a particular physician, dentist or pharmacist of getting drugs, if that person is suspected of then selling the prescriptions on the street, or trafficking or doing whatever they want to do with it, that does pertain to the records.
It may not pertain to the personal records of the person, which is what we're saying. You don't want to have the inspector looking at whether this person had venereal disease or other particular medical conditions that don't relate to the specific thing.
But you will need to take out of the record a record of the prescription that person then used. So you have to get information pertaining specifically to the drug you're looking for within the record. You have to have information related to the record coming out of it.
Mr. de Savoye: The information that a prescription was given is not only in the medical record of the patient, but also in the data the doctor keeps of whatever he prescribes. So you don't have to go in the record to have this kind of information, do you?
Ms Fry: You do have to do so in some instances. If the physician doesn't keep the particular kind of records where there is a record on the front page of the chart that says ``Medications'', ``Reasons'', ``Time of Medication'', etc., you may have to go into the records.
But it doesn't necessarily mean that the inspector could go into the records. The inspector may ask that particular physician to give them that piece of information pertinent only to the drug. He or she doesn't have to look at the medical record itself, if you see what I mean.
Mr. de Savoye: I understand what you mean.
Ms Fry: So that still pertains to the record.
Mr. de Savoye: If you'll allow me, maybe someone else has some information. I will try to put this all together when it will be over with.
Mr. Rowsell: I guess if Mr. de Savoye could just elaborate on what other information he thinks might be there, that might help us understand what other relevant information he wishes to void in relation to those records.
.1755
The Chairman: What other information is there? At this point, Mr. de Savoye, are we generalizing yours or any specific...?
Mr. de Savoye: There is an intent here, and I think it's clear. We're talking about medical records; we're talking about looking at the records of the medical condition of persons.
The amendment is bringing precision. We're not talking only about the records as a whole but also about parts of those. This is to make sure that it couldn't be interpreted as making the content of the records partially available for these purposes.
The records of the medical condition, in whole or in part, are untouchable. That's the intent. This is why there's an ``or''. It's not a ``plus'', it's an ``or.''
Any information in or relation to those records, records of the medical condition of persons, not records of something else other than the medical condition of persons....
At what time did they arrive? On what day did I prescribe? These questions are not related to the medical condition of persons. These are the administration of the medical act but not the medical condition of persons.
Ms Fry: I know what you're saying. One of the reasons this new amendment was put in by the government has to do with what we heard from people who made presentations to us and from other members of Parliament. The fear was - and one wanted to guard against it - of inspectors being able to just delve into people's personal medical records. That was inappropriate.
However, information pertaining to a specific medical condition may well relate to the drug involved.
Let us suppose we are talking about a benzodiazepine and this person is getting the benzodiazepine for a specific reason. Therefore the reason the person is getting it may very well be relevant, or it may be that the person has no actual reason for getting benzodiazepine.
There may be another reason this is being funnelled off to a physician or a patient, or it may very well be that the person is getting benzodiazepines to last two weeks and they're getting it every two days, or they're going to physicians around the area and getting it from other physicians every two days.
You need to have some information with regard to why the drug was given and how often it was given to this person, who may very well be selling it on the street.
Mr. de Savoye: If you'll allow me, ``how often'' and ``when it was'' are not related to the medical condition. ``Why it was'' is related to the medical condition and should not be available to law enforcement people, because this is a private matter.
This is what is written here, actually, in the amendment the government is proposing. We're saying we're not going any further, including something else. We're just saying, in whole or in part. If you agree in whole, you certainly do agree in part.
How often, what was prescribed - these are not pertinent to the medical condition of someone; this is administrative stuff.
Ms Fry: Well, how often a drug is given is pertinent to the medical condition of the person. What drug is given is pertinent to the medical condition of the person.
So it is pertinent information. You may want to say that it is.
I hear what you're saying and I agree with the intent. I'm not sure the wording does it, and I'm not sure the wording doesn't limit too strictly the information an inspector can get, because some of that information may very well be pertinent.
.1800
So you don't want to limit it too strictly, but at the same time you want to protect the patient's confidentiality and rights.
So I agree with your intent, but I'm not sure the wording does this carefully. You may want to say - I hope somebody will come up with drafting here. It may be that you add ``other than the records of the medical condition of the persons, limited only to information that is pertinent to the illegal use of the drug'' or something like that.
Grant may have something to say that will shed light on this.
The Chairman: The issue here is the confidentiality of a person's record. I think this issue has been raised by Dr. Fry and I think it's important that we all understand this. Is it possible that some piece of paper in the person's file also has a duplicate or listing of all of the same or similar...? In another file we may be precluding information that in and of itself does not encroach on confidentiality, but may provide information relevant to the work being done by the inspector.
So we have to watch where we are with confidentiality. I think if there was a listing of prescriptions and who got those prescriptions, the fact that a particular person got a prescription for a particular drug - does that constitute a violation of the confidentiality principles that we're trying to protect? I suspect not, unless it was in the context of the rest of the file and the prognosis and all the other information.
So we need to keep in mind this confidentiality principle that we're trying to protect, but not frustrate other potential purposes.
Mr. Hill: I'm confused now. I was satisfied with this amendment because I thought it allowed the inspector to look at the daybook of a physician and the prescription records of a pharmacy, but it denied them the opportunity to go into the individual's medical chart and see all the visits and medical conditions they had been treated for. This information is extremely confidential, it's not the intent of this bill to do that, and I can see no advantage whatever. There may be record keeping that I'm not aware of that would be useful to an inspector, but I'm not aware of it. You don't want to go into the medical record and extract that they had a nosebleed on November 3.
The Chairman: Amendment G-28 addresses that directly. The question now becomes whether the inclusion of the amendment to G-28, which refers to other information that may directly or indirectly relate to that medical condition, captures a broader group of records of information that may not intend to preclude the inspector's ability to look.
Mr. Scott: Mr. de Savoye's proposal that this information can be obtained somewhere else than medical records alluded to some other way that these administration of drugs records might be kept. Could his amendment be construed to preclude getting access to those very records? In other words, if there's a list of the commercial movement of drugs in a doctor's office, would that not be in relation to medical records? What's the definition of ``in relation to''? The example that Mr. de Savoye gave might be precluded by the wording of his amendment. Is that correct?
Mr. Rowsell: Yes, that's correct. My fear is that we would be inhibiting inspectors from going in and looking at administrative records, and there is no need for them to look at personal or confidential records.
.1805
Mr. de Savoye: Obviously, that was not my intent. However, I think this discussion has been enlightening, and since it is on the record, it shows clearly what the intention of this committee is about this amendment. So if the committee allows it, I will just retract this amendment.
The Chairman: Is it the consent of the committee to retract the amendment to G-28?
Some hon. members: Agreed.
The Chairman: Then we'll go back to amendment G-28 as proposed - on page 66. There is no further discussion; we had a very good discussion there.
Amendment agreed to
The Chairman: I'll turn to Mr. de Savoye for an indication with regard to amendment B-7. Were you proposing to move this in this form?
Mr. de Savoye: Please.
The Chairman: Amendment B-7 is moved by Mr. de Savoye.
Mr. de Savoye: With your permission, Mr. Chair,
[Translation]
subsection 30(2) refers only to a dwelling place and states that an inspector may not enter it without the consent of an occupent thereof. Given the previous amendment, I think that for reasons of consistency it should also be stated that a physician's office and a pharmacist' are places where the inspector may not enter without the consent of one of the occupants. All the other amendments or subamendments are proposed in accordance with this.
Mr. Normand: I would like to add a little bit of information regarding clause 30 and the provisions concerning inspectors. First, it should be noted that we are dealing here with an administrative rather than a criminal context. Clause 12 covers power of seizure, and it is significantly different from the content of clause 30.
The purpose is different. In one case, the purpose is to seize property or substances for evidential purposes with a view to possibly prosecuting. We are dealing with a situation where people do not generally expect to be visited by the police for purposes of seizure, and in this regard the courts have clearly indicated that section 8 of the Charter, which protects Canadians against unreasonable search or seizure, should be very strictly interpreted.
As regards administrative seizures, the courts have tended to interpret subsection 8 more loosely, because the context is very different and the purpose is not to seize property for evidential purposes. Among the powers provided for in clause 30, there is seizure, which comes under subparagraph (i), but strictly so as to ensure that the regulations are properly enforced. In other words, once the property has been seized pursuant to clause 30, it could not be used in court because such a power does not exist.
The inspectors act for one single purpose: to enforce the regulations. People who are authorized by regulation to produce, prescribe or sell substances know that such a power of inspection exists, but that does not give the inspectors power in criminal cases. They know that such powers exist as in any other piece of legislation: inspectors are authorized to carry out periodic checks so as to ensure compliance with the regulations.
.1810
In this particular provision, the French translation of ``dwelling place'' is ``habitation''. The only reason why a different procedure is provided for, even in an administrative context, is that the courts have recognized that when dealing with a dwelling place, reliance is placed on the English maxim: A man's home is his castle. Therefore, case law has indicated that even in an admninistrative context a warrant is required to check or inspect such places. The general principle is that it does not go against clause 8 to allow an inspector to examine or seize property in an administrative context, except when the location is a dwelling place.
Mr. de Savoye, I must point out to you that the same process is provided for in many pieces of legislation. An inspector has the right to enter for examiniation purposes, but if he is entering a dwelling place he must have a warrant. This condition is not specific to the bill before us here. The same thing is found in many other pieces of legislation. In developing the system indicated here, we did in fact rely on such legislation.
Mr. de Savoye: Mr. Normand, the other locations do not house my medical record. In this case, the legislation would allow an inspector to enter a doctor's office and, of course, to examine medical records so as to determine what is or is not medical. Moreover, there would not be anyone there to check if he is looking at them or not. Later, he would be the only person to say if he in fact looked at them. Obviously, he will not say that.
If you want to be able to ensure that the amendment adopted earlier is respected in the case of a doctor's office, then an inspector should not be allowed to enter a doctor's office unless the doctor in question or the person authorizing the inspector to enter is present in the office to witness what is happening.
I am not trying to prevent the inspector from doing his job. But we must ensure that it is done in accordance with the law.
Mr. Normand: In that case, would he still need a warrant?
Mr. de Savoye: The provision in the bill before us reads as follows:
- (2) Where a place referred to in subsection (1) is a dwelling place, an inspector may not
enter the dwelling place without the consent of an occupant thereof except under the authority
of a warrant issued under subsection (3).
This concerns me as an individual, and it also concerns other people as individuals. I think that we should take the same precautions as for the castle you were talking about. Ici le château est mon corps.
Mr. Normand: Under subsection (3) which explains the test a justice must apply in deciding whether or not to issue a warrant, you can see that he must first ensure that the conditions for entry described in subsection (1) are met. He must therefore ensure that it is a place which can deal in controlled substances. The subsection reads as follows:
- (1) ...any place used for the purpose of conducting the business or professional practice of any
person licensed or otherwise authorized under the regulations to deal in a controlled substance
or a precursor...
In the case of (c), it would not apply, this deals with a business. The permit or licence would authorize the people concerned to do business.
.1815
Despite the fact that a person must obtain a warrant before entering, the criteria contained in subsection 30(1) stipulate that a person would simply have to say that they want to investigate a place where a physician has his practice to make sure that everything meets the regulations.
I don't see how this test is different from the one for dwelling places. I don't see how we could make it more stringent for physicians' practices.
Mr. de Savoye: If I understood correctly, my amendment would not create any obstacle, problem or difficulty for the inspector. That was my intent. However, it would prevent an inspector from suddenly, on his own volition, entering a medical practice and going about his business without authorization. There should be a pre-authorization given by either the person on site, or through a warrant, so that due process is observed. After all, this is not an inquisition.
Mr. Normand: But if a justice of the peace is to issue a warrant, he will have to judge whether it is required and whether it is necessary to intervene. In this case, as in all cases, an inspector may of course drop in for an inspection. There is no criteria. Why should a justice of the peace have to issue a warrant in every case, when subsection 30(1) authorizes an inspector to enter a practice as long as it is within his mandate to do so? There would be no criteria.
Mr. de Savoye: I think you misunderstand me. In sub-section (2), it says:
- (2) Where a place referred to in subsection (1) is a dwelling place, an inspector may not
enter the dwelling place without the consent of an occupant thereof excepet under the authority
of a warrant -
Mr. Normand: In subsection 30(1), Mr. de Savoye, it says that the inspection should take place at a reasonable hour.
Mr. de Savoye: Say it is 4 or 5 pm. The physician is not there. He is in his condominium in Florida. It happens!
Mr. Normand: Yes, it happens occasionally.
Mr. de Savoye: It's a reasonable hour.
Mr. Normand: Under your proposal, which is that the physician has the right to refuse an inspector, who would have to obtain a warrant from the justice of the peace, there would be no criteria to get the warrant. The inspector would say: ``Listen, subsection 30(1) allows me to inspect the premises. After all, the premises are regulated, because the person working there is authorized, under the regulations, to conduct a professional practice.'' The inspector would then say: ``I would like to investigate the records because I'm authorized to do so under the law. So give me a warrant.'' There are no criteria in that case.
Mr. de Savoye: If the premises are a dwelling place and, under the amendment, a doctor's practice or the office of a pharmacist, the first criteria has been met. As well, it is necessary to visit the premises to ensure that the law has not been violated. So that condition would also be met. Lastly, a person might object to the premises being investigated, or the inspector may have reasonable grounds to investigate: ``He is gone to Florida, and I must absolutely enter''. So the judge will issue a warrant, because the criteria has been met.
Mr. Normand: The criteria apply in the case of a private dwelling house.
Mr. de Savoye: That's why I am putting forward an amendment.
[English]
The Chairman: Let's see if we can get some focus to this, because there's a subtle point here that I think is well raised.
There's no question with regard to private dwellings where there's a warrant, etc. That's not the issue. The subtlety here is that in a literal translation, first of all, I think there might be a little bit of a question about what constitutes a reasonable time, what that definition is.
Secondly, from a layman's perspective, it really seems to deal with the issue of whether or not there is a need to give prior notice or to introduce oneself before you simply walk into an office and exercise your authority. That would be granted by this legislation. Right now, as it reads in clause 30, subject to subclause (2), an inspector can just walk in and start doing his work without talking to anybody.
.1820
If this is really the issue, I'm not sure whether we're trying to provide the inspectors with the opportunity to make surprise visits, as an auditor might do in the normal course, as a surprise audit - certainly not immediately without talking and explaining what's going on or introducing or justifying their presence. It's simply to allow them an opportunity to arrive and exercise their right under this bill, but not necessarily to preclude them from doing a surprise visit. It's this subtlety of how can we ensure that they don't just walk in and start inspecting and not have the obligation to declare what's going on but still provide them with the opportunity to do a surprise visit.
Mr. Normand: I guess that's the training that we provide to the staff. When they do enter premises, they do show their badges as inspectors under the Food and Drugs Act or under the Narcotic Control Act. They do explain the reason they're there. They would want to make sure the person in charge of that business, whether it's a pharmacist or a physician, would be present.
The Chairman: Under the Canada Business Corporations Act and, I assume, provincial corporations acts, there are provisions whereby any shareholder can look at the records of the company during normal business hours, at reasonable times, etc. In terms of the parallel, that would mean they would call up and say, ``I want an appointment. I'd like to come in; is that okay?'' This is not quite the same thing.
Inspectors may be able to discharge their roles better by showing up unannounced. But I think the issue is how we can satisfy all parties that part of the procedure is that, rather than just start searching through files, they must declare who they are and what their role is and the jurisdiction under which they're doing it.
Dr. Fry.
Ms Fry: Mr. Chair, subclause 30(1) says, ``subject to subsection (2),'' and subclause 29(2) states:
- (2) An inspector shall be furnished with a prescribed certificate of designation, and on entering
any place pursuant to subsection 30(1) shall, on request, produce the certificate to the person in
charge of the place.
This is not a search and seizure issue; this is an inspector coming to look. And they've got to do what it states in subclause (2) at the top of the page, which is have their certificates of designation, and they have to show them to the person in charge. If the person in charge is not the pharmacist, the dentist, or the physician, obviously the dentist, physician, or pharmacist will not leave without authorizing or delegating someone to take charge when they're gone - and that is a person. It didn't say ``to the person in charge or anybody else''. It said ``to the person in charge of the place''. So I see that what Mr. de Savoye is concerned about is covered.
The Chairman: The intent has been stated again. I'm wondering whether or not there is still concern that, somehow, an inspector may be in a position to do something that may not be the intent of the legislation or the authority under the legislation. I think we really have to get back to what would now be the concern about the inspector's role.
.1825
If in fact we're suggesting there is a prescribed procedure that, on arriving at the place, they must identify themselves to the person in charge designated by the owner or practitioner, etc. - whoever is in charge.
I would think that it may be a problem if they were to simply walk in at other times when there was no one present and simply commence their review of files. Does it still concern you that an inspector may enter an office where there is apparently nobody around and just start looking at files?
Mr. de Savoye: According to subclause 30(1), they can do that. I don't see where it is written that they cannot do that.
The Chairman: I need some help to bridge us from the standpoint that an inspector could enter into a place where there is no one who asks them anything and they make no steps to introduce themselves or seek whoever is in charge. They simply commence the process of an inspection. What would preclude someone from just walking in, opening a filing cabinet, and going through the files?
Mr. Rowsell: There's no provision for forced entry to a site. The place would have to be open and someone working there for the inspector to gain entrance to it. We're talking about routine administration. We're not talking about going in for seizures or things like that.
The Chairman: If it was, you'd get a warrant.
Mr. Rowsell: Exactly. It's just for routine administration; it's to make sure that the purchase records are satisfactory, that the prescriptions issued match with the amount of drugs purchased, etc.
The Chairman: In fact, I assume from the training of these inspectors that it would not be in their best interest to touch anything unless the person in charge was in fact there and well aware of the facts and details so that there would be no allegations of anything subsequently.
Mr. Rowsell: Absolutely.
Mr. de Savoye: All of this is linked together. You do realize that later on - and I have some amendments for that.... Let's say I'm at my doctor's place and the inspector comes. I have a duty, as it is actually written, to help this inspector. Maybe the doctor will say to come later. Well, he cannot do that. His office is open, I'm there, and this inspector.... Nowhere does it state something other than what I am stating. If an inspector wants to do that, the law gives him or her the authorization to do it. That's what I want to stop.
If it is not written in the law that they cannot not do it, then they can do it. Eventually someone, somewhere, will do it. It might not be I who will suffer for it, but someone else will. I think I have a duty here now to make sure this won't happen without impeding in any way the duty of the inspector. I'm just protecting the public.
The Chairman: The scenario is that the latitude of the inspector is fairly broad. I guess the question becomes, if the inspector has this latitude and in fact exercises it in the extreme by not being very accommodating to the practitioner or whoever's in charge - saying this is something that we have to do now - is there then the mechanism for a complaint? Again, we really bend the reasonableness of grounds and the motivation for whatever. I assume that an inspector has a standard as well.
.1830
I guess we have to ask the officials now whether they feel that the latitude of the inspectors under these sections of the bill is too broad or would invite abuse that could not be handled in some way or fashion.
Dr. Fry.
Ms Fry: I just wonder when you say:
- every person found there shall give the inspector all reasonable assistance in the power of that
person and furnish the inspector with such information as the inspector may reasonably require.
As a patient, you may be able to say that the doctor's office hours are from 10 a.m. to 4 p.m., the doctor sees patients, and you usually come to see the doctor then, or something like that. It may be reasonable if the inspector says, ``I have just placed these things that I seized on this table. Will you please make sure that nobody moves them?'' That may be reasonable.
I don't see how an inspector could require, under reasonable grounds, a patient to do anything more than that or could require a receptionist who only does the telephones to go and do work in the computer when that is not reasonably what the receptionist is capable of or is able to do. So the term to me ``reasonable assistance'' that the inspector may reasonably require is a qualifier in terms of what the inspector may ask of the person or what the person may be required to do.
The Chairman: I will allow one final intervention.
Mr. de Savoye: In the English version, it's all reasonable assistance. In the French version, it's toute l'assistance possible - all possible assistance.
Furthermore, you have, in subclause 31(1), même par omission - by act or omission. I am there. I don't do something I could have done. I'm guilty. You say it's only administrative, but this person can seize and detain any controlled substance or precursor.
There are enormous powers. Remember, Ms Fry, my speech in the House back in February. I had a whole paragraph on that. I had quite a part there about the enormous powers the inspectors have, and they probably need that. But do they need it in my doctor's office to that extent?
I'm not asking much. I'm asking that the doctors say, ``No, not now,'' and that he or she either waits or goes to get a warrant if it is that urgent. If they think my doctor is really witched and is doing some ugly things, they should come with a warrant to begin with just to make sure they catch the doctor in the act. Otherwise, somehow, somewhere, some person will suffer from this.
We're all MPs, and we have those phone calls from our constituents who are telling us things. Sometimes they're right. They've been abused by the system, because the system was allowing for abuse. It's not that the system intended abuse to happen; it's that the system allowed some bureaucrat to go to the extent the law allowed him or her to go. I don't want this to happen in a doctor's office or in a pharmacist's place.
The Chairman: I'd like to deal with it this way. First of all, there was a question raised with regard to the French translation of ``reasonable times'', and I wonder if I could seek direction here as to whether we should, if this is in fact the case, amend the French to be sure that the intent is clearly conveyed in the translation.
.1835
Mr. de Savoye: We could come back with a later amendment, if you wish. I don't have one, but I could certainly propose one. That would be subclause (5).
The Chairman: That assistance raisonnable is acceptable?
[Translation]
M. de Savoye: Yes, ``assistance raisonnable''
[English]
The Chairman: If we may then, let's deal with amendment B-7, because actually that item is in amendment B-8.
Colleagues, I'll call a ten-minute stretch break. We will return to the call of the chair.
.1836
PAUSE
.1849
The Chairman: We are resuming clause-by-clause on Bill C-7. We've discussed the Bloc's amendment B-7; I believe we've exhausted the debate there.
Amendment negatived
.1850
The Chairman: Next is B-8, a small amendment moved by Monsieur de Savoye.
[Translation]
Mr. de Savoye: Yes.
[English]
The Chairman: We'll also try to deal with the French translation in that, I believe.
Do you have any comments?
[Translation]
Mr. de Savoye: In the next amendment, B-8, I can replace the word possible with the word raisonnable. When I move the continuation of B-8, I will make the change and everything will fall into place.
[English]
The Chairman: To ensure that we have the proper meaning in French, it's been moved byMr. de Savoye that we replace the word possible with the word raisonnable.
[Translation]
Mr. de Savoye: It's reasonable.
Mr. Scott: It's possible.
Mr. de Savoye: What's reasonable is always possible.
[English]
The Chairman: This is for the French version only, and I believe that's understandable.
Amendment agreed to
Mr. de Savoye: Which amendment is being carried?
The Chairman: The French translation amendment.
[Translation]
Mr. de Savoye: Perfect.
[English]
The Chairman: Amendment B-8 replaces line 39 on page 26 with the following:
- tion (1) shall
- So it effectively deletes the words ``and every person found there''.
Mr. Normand: The comment that was made earlier by Dr. Fry
[Translation]
should apply here, because the test being used in the middle of subclause (5) is the reasonable assistance test. The test will vary according to whether it is the owner, the reasonable person or someone else found there, an employee for example. As to the degree of assistance, we will have to take into account the position of the person in evaluating the assistance that may be provided by that person.
[English]
The Chairman: He's referring to the example given by Dr. Fry where there may be a case when even a patient in the office may assist and it would be appropriate. The officials are comfortable with that.
Mr. Rowsell: Generally it's an employee, though. Generally it would be an employee who may be able to find records for the inspector to help them in doing an audit.
The Chairman: Dr. Fry's example included even a patient. For instance, if there were seized substances, the patient would be asked to ensure that nobody touches those while they do something.
Mr. Normand: I may add that this provision currently exists in the Food and Drugs Act. The additional
[Translation]
``and every person found there''
[English]
exists in that legislation. It also exists in various other statutes, such as the Canada Grain Act, the Farm Products Agencies Act, and the Freshwater Fish Marketing Act. In all those statutes, this notion exists already.
The Chairman: Do you have any final comments, Mr. de Savoye?
.1855
Mr. de Savoye: The fact that we have modified possible for raisonnable makes it reasonable.
The Chairman: Do I take it that you would be amenable to withdrawing amendment B-8?
Mr. de Savoye: Yes, Mr. Chairman.
The Chairman: Do I have the unanimous consent of the committee to withdraw B-8?
Some hon. members: Agreed.
The Chairman: It's agreed unanimously.
Clause 30 as amended agreed to
On clause 31 - Obstructing inspector
The Chairman: May I have a mover for amendment B-9 to clause 31?
[Translation]
Mr. de Savoye: Yes, B-9.
[English]
The Chairman: Effectively, this eliminates the words ``by act or omission''.
Would you like to make a comment, or is it self-evident?
[Translation]
Mr. de Savoye: Are we on B-9?
The Chairman: Yes, on B-9.
Mr. de Savoye: So, this refers to the words ``by act or omission''. This means that otherwise, someone could be forced to self-incriminate himself, which is not all that simple.
[English]
The Chairman: Do you understand the point?
Mr. Rowsell: In clause 30 there was another section that wasn't addressed. Amendment B-8 continued and addressed line 42.
The Clerk: It's all part of the same amendment.
Mr. Rowsell: Oh, excuse me. The whole thing was withdrawn.
The Chairman: Let's return to amendment B-9.
Mr. Normand: With regard to B-9, the test that is found
[Translation]
in subclause (5), which refers to reasonable assistance, implies that if the inspector is entitled to expect someone to provide him with reasonable assistance and if that person omits to do so, the omission then takes on importance. Everything is interconnected. If the omission occurs in a situation where it is not reasonable to expect the individual to act, it is clear that the omission could be presented as a defense, in that the individual omitted to do something, but was not obliged to do it, because in his mind, it was not reasonable under the circumstances.
The situation is completely different if a person, such as an employee of the reasonable person, refuses or omits to do something to help the inspector. That's why it's important to foresee that it is not only in the active sense that the work of an inspector can be obstructed, but also through omission.
Mr. de Savoye: There can be two or three types of omission. First of all, there will be the case of someone who would have to incriminate himself by providing assistance. Is it reasonable for someone to have to incriminate himself? Not likely. But, considering clause 31, would it be interpreted that way by a court?
Secondly, someone could reasonably provide assistance, but not think to do so and in that way commit an omission. We have all committed omissions.
Thirdly, the person could be in a position to provide assistance and know it, but not do it. In that case, it could be understood that the person intentionally obstructed the work of the inspector by omitting to provide assistance when he was in a position to do so.
I would like to know how far this clause goes. Who is guilty and who is not?
Mr. Normand: You started by asking what the situation would be if acting in certain cases could incriminate the person involved. Is that not right?
.1900
Mr. de Savoye: Yes.
Mr. Normand: First of all, in the situation we're dealing with, the duty to act, to provide an inspector with documents or information is a duty imposed by the Act and the inspector has the authority to request those things. If the inspector has the authority to request them, it would be difficult for a person to incriminate himself by providing the inspector with something he is entitled to examine.
Bear in mind that clause 31 is in the context of obstructing the work of an inspector. So, the omission would have to be such that the person obstruct the work of the inspector. If the individual does not know that he must provide assistance, as you mentioned earlier, it is very likely that the inspector will tell him. The inspector will say to him: ``Under the Act, I am entitled to expect you to provide me with assistance.''
Assessing the case of an individual accused of obstructing the work of an inspector could be done before the courts. He could explain to the court that under subsection 30(5), he felt that, under the circumstances, it was not reasonable assistance. This is a defense that he will have in the event of a suit for having obstructed the work of a peace officer.
Nothing is cast in stone here. When we use expressions like ``reasonable assistance'' or ``reasonable duty'', the door is wide open to defend against an obstruction charge.
In the context of a warranted charge, to be exonerated, a person must show that under the circumstances, the average man in the street would have acted in the same way.
Mr. de Savoye: The expression ``by act or omission'' goes a lot farther than you say. The inspector is requesting something. You can accept or refuse to help him. ``By act or omission'', implies that the inspector has not asked for anything. He's not expecting anything reasonable. The individual should determine for himself that he is able to provide assistance and avoid omitting to provide assistance The notion of omission means that the initiative must be taken by the person who is present and not by the inspector. It seems to me that that's where the danger lies.
We can all commit an omission. We do it frequently, consciously or unconsciously. Can the fact that we are on site when the inspector comes land us in court?
Mr. Normand: To come back to an answer I gave you earlier on a charge of obstructing the work of an inspector which would be laid under the Act, there is similar offense in the Criminal Code; it involves obstructing the work of a peace officer and the same criteria apply. For the same reasons, a person can be found guilty of omitting to assist a peace officer who could have reasonably expected the person to help him.
Here, the context is very specific. It is a situation where an individual, out of pure ignorance, has not helped an inspector or, in his mind, could not help the inspector. In this context, it must be clear that the individual could have helped, that the expectations were reasonable, as set out in subclause 30(5). It's not good enough to be passive when the inspector continues his work without asking for anything. Under such circumstances, it would be difficult for the inspector to turn around and lay an obstruction charge. It implies more than being passive. The inspector would not be able to perform his duties without asking anything and suddendly press a charge of obstruction. I hardly see a scenario where an individual could say: ``Look, this inspector did not ask me anything, and I am now charged of obstruction.''
.1905
[English]
The Chairman: Let me ask Dr. Fry.
Ms Fry: Thank you, Mr. Chairman. I think the word ``omission'' is an important one because one can omit. Let us say, for instance, that an inspector has come into an office or into a pharmacy. The only way the inspector can have access to administrative or other information with regard to documentation of medications is via a computer. The person there knows this is the only place where much of the information is but omits showing the inspector that it is there, only giving the inspector the incomplete files that are sitting in a drawer. This is an error of omission. In order to protect himself, someone may very well omit doing that and the inspector would not get all of the information. So I think that if you don't put in ``omission'', it means people can do that.
The inspector is coming into a place he doesn't know. He doesn't know where information is kept or how to access it. Persons can hinder the inspector in his job by omitting to do those things, in which case the inspector gets incomplete information that may lead to a decision that this office is doing fine or is innocent when it really isn't. So ``omission'' is really important.
But suppose I am sitting in that office and I just came to get my prescription from the pharmacy. The inspector turns to me and says, you omitted to tell me there was stuff in the computer. Under reasonable grounds, how would I know I have a means of defending myself? If you continue to leave the term ``reasonable'' out of it, then it's broad. If you place the term ``reasonable'' in it, the patient or the client cannot reasonably have access to that kind of information anyway.
The Chairman: All right. I have a question before I move to Mr. de Savoye.
If the language was left out and it was just simply ``obstruct'', and it was determined that omission was the source of the obstruction, would there be any frustration of the opportunity to deal with it simply with the word ``obstruct''?
Mr. Normand: There would definitely be a great risk, because when a statute is interpreted, you first of all look within the statute. After that you will try to find out if you have the same wording within another statute. If, in the other statute, you indeed -
The Chairman: Okay, so for the parallelism -
Mr. Normand: It could create a problem.
The Chairman: In the convention.
Mr. Normand: Yes.
The Chairman: Mr. de Savoye.
Mr. de Savoye: I just wanted to point out that among the several things I did in my life, I also learned about computers. I was a computer consultant. So let's say I am in this doctor's office - of course, I go only to honest and good doctors - and the inspector comes in. Shall I tell this person that I'm an expert and I can help retrieve the information? I could do that. Should I help him or should I remain silent and be accused of obstructing his duty when he finds out I could have helped but didn't?
Ms Fry: But Mr. de Savoye, reasonably, how would you know there is extra information in the computer? Maybe all the physician uses the computer for is to schedule appointments. Some people do not use a computer completely. They use a computer as a typewriter. They use a computer as a word processor. They don't use it for other things. So again, how could you reasonably know there is other information in the computer? You couldn't.
Mr. de Savoye: There always is. Everything you erase from a computer stays there until you overwrite it. I know that.
Ms Fry: But you don't know what's there.
Mr. de Savoye: But I could find out.
Ms Fry: But that would make you a busybody.
.1910
The Chairman: On that note, I think the point has been well made on all sides. Unless there's anybody who can add new relevance to the debate here, I think we should now move to dealing with amendment B-9.
Amendment negatived
Clause 31 agreed to
On clause 32 - Designation of regulations
The Chairman: Clause 32 was stood at the request of Dr. Hill. No amendments were dealt with.
I want to recognize Dr. Hill.
Mr. Hill: This is one clause that -
The Chairman: Dr. Hill will move.... No, wait. You're not moving an amendment at this point.
Mr. Hill: No, but it will be addressed by a subsequent subclause, subclause 54(1), if in fact that amendment.... So I would like to stand this to see what happens with subclause 54(1).
The Chairman: So we'll hold on clause 32 for now?
Mr. Hill: Yes.
Clause 32 allowed to stand
On clause 40 - Determination by adjudicator
The Chairman: There are no amendments to clause 40, but again it was stood at the request of Dr. Hill.
Mr. Hill: The same thing goes here.
The Chairman: Fine.
Clause 40 allowed to stand
On clause 43 - Designation of analysis
The Chairman: On clause 43 I believe we have amendment B-10 as the first one to deal with.
Mr. de Savoye: Mr. Chair, I think the government presented earlier its intention for an amendment of the same type as B-10.
The Chairman: On page 32 of your package of the remaining government amendments, this amendment to clause 43 is numbered G-28A for our purposes. Can I have a mover for G-28A.
Ms Fry: I so move.
Mr. de Savoye: Is this the government amendment that will replace B-10?
The Chairman: That is correct.
Ms Fry: That is one of the regulations made pursuant to paragraph 54(1)(o), is that it?
Mr. de Savoye: I would rephrase it exactly as it was phrased for article 29. Do you agree with that?
Ms Fry: Yes.
The Chairman: So we want to conform the wording to the same type of amendment we had for clause 29 in accordance with the regulations made pursuant to paragraph 54(1)(o).
I would ask the committee for unanimous consent to withdraw G-28A, which was moved by Dr. Fry.
Some hon. members: Agreed.
The Chairman: I would then need a motion for the amendment that would indicate that the minister may designate in accordance with the regulations made pursuant to paragraph 54(1)(o).
Ms Fry: That was my motion.
The Chairman: You did move that.
Ms Fry: I did; I said paragraph 54(1)(o).
.1915
The Chairman: I think we understand. You're quite correct. That's moved by Dr. Fry. Any further discussion?
Amendment agreed to
The Chairman: Amendment B-11 is the final amendment on clause 43.
Mr. de Savoye: It was in relation to B-10. It was not moved by me. It doesn't exist.
The Chairman: So there'll be no further amendments.
Clause 43 as amended agreed to
On clause 54 - Regulations
The Chairman: We will commence with amendment G-30. These are original amendments that were not moved at the last meeting.
Is there any discussion on G-30? Seeing none, I would ask, shall G-30 carry?
You have a point of clarification?
Mr. Normand: Yes, please. Looking at amending paragraphs 54(1)(n) and 54(1)(o), which we will deal with later, the French word for ``qualifications'' used in those two paragraphs will be ``qualifications''.
As far as G-30 is concerned, the French version, referring more particularly to paragraph 54(1)9(h) in French, we have the words ``qualités''. Today I gave the clerk an amendment that would change that to ``qualifications'', so it's all the same.
The Chairman: That's in the packages. It's clause 54 on page 38. The word ``qualités'' is replaced by ``qualifications''?
Colleagues, in the big package on page 73, which is the third or fourth page of G-30, there is suggested wording. We are not moving forward with that one. The replacement for that page is in your package, I believe, on the government amendments tabled with us today. You do not have a copy of this. It is only in the French version; there is no English.
Mr. de Savoye: Basically, you're saying that in the English version we're respecting the qualifications of persons, and in the French version we're respecting the qualities of persons. This is another thing to do, but....
The Chairman: In fact, it should be the very last page of your package today. I think we understand the intent and the need to make this change.
.1920
This amendment will be labelled G-30A-1.
Amendment agreed to
The Chairman: We now move on to G-30 itself.
Mr. de Savoye: No, we have (n) and (o).
Mr. Normand: I think I interrupted before you voted on G-30, which is the first part. You have (a), (b), (c) and (d) on the first page.
The Chairman: So G-30(a), (b), (c) and (d) are done. We have already handled G-30A-1, which was the qualifications, and now we want to move on to (n) and (o).
Mr. de Savoye: This is in response to B-12 and B-13. In accordance with what I said at the beginning of this meeting, I agree to replace B-12 and B-13 with this one. You could make it a B-12/B-13 hybrid or whatever.
The Chairman: All right. We must first deal with clause 54, page 38, in the government package, which deals with paragraphs (n) and (o).
So G-30A is moved by Mr. de Savoye.
Amendment agreed to
The Chairman: We are moving on to G-31 in your large package.
Can I have a mover for G-31?
Mr. Scott: I so move.
The Chairman: This is consequential to having put the definition of ``practitioner'' in the body and taking it out of the regs. So it's consequential to a previous amendment.
Amendment agreed to
The Chairman: Amendment G-32, on page 76 in your large package, adds the phrase ``any provision of Part I'' in clause 54.
.1925
Moved by Mrs. Ur. Is there any discussion?
Amendment agreed to
Clause 54 as amended agreed to
The Chairman: Amendment B-14 is the next one in the large package. It's a new clause 54.1.
Mr. de Savoye: During the committee's hearings, many witnesses underlined the heavy load of regulations that will have to be adopted to put this new bill into effect. Most witnesses who addressed the issue were disturbed that so much power would be out of the hands of elected people.
The objective of clause 54.1 is to make sure the people who are accountable to society have a say on what regulations will be put in place to get this law moving.
Mr. Hill: This clause will satisfy most of my concerns about the bill in terms of broad regulatory powers. This clause will allow the Standing Committee on Health to review major changes to the bill. It is pivotal to my belief that the bill should be restricted in those regulatory powers.
Mr. Normand: I'm not a drafter, but to my knowledge this type of provision does not exist in any other statute. The regulation-making authority has always been discussed before Parliament because it's part of the act, but as far as allowing the Governor in Council, which has its own very lengthy process.... Before adopting a regulation one must go to part I of the Gazette, where anybody is allowed to make comments. It could vary between 30 and 90 days, and once made the government takes those comments into consideration before moving to have a regulation adopted.
This process has been in place forever. We didn't know about the existence of this before now. I hadn't seen it.
The powers that we have in clause 54 are similar to those currently found in the Narcotic Control Act or the Food and Drugs Act. They've been specified, but the bulk of the powers are there right now.
A voice: The Governors in Council are members of Parliament.
Mr. Normand: Yes, members of the Governor in Council are members of Parliament. They're members from the government side, but they're members.
.1930
Again, those powers are currently found under the two statutes we are consolidating, and the intent, effectively, was to consolidate and to maintain the same approach.
Mr. Rowsell could probably talk about the process, which could in some circumstances become very lengthy, whereas government needs to act quite rapidly in some instances. Mind you, it has to go through part I of the Canada Gazette all of the time.
The Chairman: I would like to ask a question about the logistics of whether the committee, based on this wording, would in fact have powers that would not be extended to the House itself. We're bypassing the House totally. It seems odd that the committee would have authority or responsibilities that were not somehow subject to the scrutiny of the House.
Ms Fry: I don't think that's what that means.
The Chairman: This says that this committee would have to vet and approve changes by the regulation. It would not have to go to the House; it simply has to come to this committee for approval. I don't know that parliamentary committees are empowered to do anything that wouldn't ultimately have to go through to Parliament, and this does not provide for that.
Mr. de Savoye.
[Translation]
Mr. de Savoye: In order to enlighten the committee, could our legislative counsel tell us if there is any precedent or any information which would allow us to understand correctly what this is all about.
[English]
Ms McMurray: This is an unusual provision. Normally approbation or a ratification goes through the House. However, there is nothing in law to prevent this kind of provision. If this were to become law, what it would essentially mean is that Parliament is delegating power to a committee. Parliament can do whatever it wishes, providing it is not unconstitutional.
There is nothing unconstitutional with Parliament delegating power to a committee or to anybody it so wishes, any tribunal, any body. Or a dog, if it wishes to do so; it doesn't make sense, but indeed it has that power. Legally, there is nothing wrong with this.
I think the reason everybody around the table thinks it's a little bizarre is because they're mixing up procedure with law. Procedure and law are two different things. Procedurally, a committee is not empowered to do those kinds of things unless they're given an order by the House. On this, if it were to become part of a statute of Canada, Parliament would indeed have spoken and said they were delegating this power to a committee of the House, which legally it may do.
It's unusual, but there is nothing illegal or unconstitutional about it.
The Chairman: That was well stated.
Ms Fry: I would like to ask a question. Is this usual in the kind of parliamentary system we have in Canada, or is this more common in, say, the American system?
Ms McMurray: I would say that I don't know of any piece of legislation in Canada that has this particular provision in it. However, there is, for example, in the Hazardous Products Act, a provision that provides that where the Governor in Council is going to use its Henry VIII power - that is, its power to amend the act by adding to a schedule - it must place that regulation before the House where it will be debated and the House can either accept it or not.
.1935
There is also, in paragraph 39(1)(b) of the Interpretation Act several procedures whereby a regulation may be run through the House through what's called an affirmative or a negative resolution of Parliament.
An affirmative resolution essentially means that the regulation must be laid before the House within 15 days before its effective date. If the House is not then sitting, it's 15 days as soon as the House comes back. The House then can approve the regulation. If it does not approve the regulation, the regulation does not come into force.
There is a negative resolution as well, which means the regulation is already in force and the House can essentially revoke it.
Everything is normally done through the House. That's simply because nobody ever thought of doing it this way. Let's be creative. Someone's being creative here. I don't have a problem with that, personally. I like to be creative, quite frankly.
The Chairman: Its been well stated. I would think all members of the committee are clearly aware of the motion and its intent. Is there no further clarification required, or would you like to continue the debate?
Mr. de Savoye: I'll just close this thing. So many people were uncomfortable because the regulation was not available to the committee or to the public in general. So many people just mentioned their concern about all these powers that were given to the House or one of its committees to regulate everything, that I think it is the sensible way to reassure the public that this will be kept in line with the public interest.
We may, at the end of the review we are proposing, come up with something new that will render this useless. At that time, we shall advise. Mind you, even the schedules here could be under regulations, and there are also the decrees.
With all this taken into account, I think this is the proper thing to reassure the Canadian public that this bill, when it will be law, will be kept in line with the public interest.
The Chairman: Before we get further, I understand the counsel has an explanation or a comment on a point made previously.
Ms McMurray: It's just to add to what I said to Ms Fry. It just came into my head as I was sitting here.
There may be more of a trend toward this type of thing. It may not necessarily be the ratification by a committee, but at least more consideration of powers of the committee.
Just recently there was an amendment introduced, not in the present gun control legislation but the one prior to that, whereby, under 116 of the code, regulations made by the Governor in Council would have to be laid before Parliament and they would be automatically referred to the Standing Committee on Justice and Legal Affairs, or some committee that takes care of that, to look into the regulation. They are not given power to reject or approve the regulation, but they are given inquiry powers to look into it.
Ms Fry: That's further to my question, but that still means that the Governor in Council must go to Parliament before it delegates authority to a committee. What you're saying is that Parliament has to agree to do this. Before you can delegate authority to a committee, Parliament has to agree to that.
Ms McMurray: Well, certainly. This is what this is about. This is about making legislation, if this were to become law, which is my point.
Ms Fry: Yes, okay.
Mr. Scott: As a matter of clarification, what's the process now in terms of the publication of regulations, and so on?
Mr. Normand: The process as I know it, is that, for instance, under subclause 54(1) those regulations would be proposed by the Minister of Health.
Under subclause 54(2), they would be proposed under the recommendation of the Solicitor General. Once the proposal is in draft form, it is sent to part I of the Gazette.
.1940
Mr. Rowsell: There's the Department of Justice review and the regulatory affairs secretariat review before it gets to that stage.
Mr. Scott: Once the proposal exists, when it goes into the Gazette - that's what I'm interested in, when the public sees it.
Mr. Normand: When it goes to part I of the Gazette and someone wishes to make recommendations or have his views on the proposal made known to the government.... As far as I'm concerned, the government has to answer to that if it doesn't go along with the proposal.
Mr. Scott: Is there a timeframe? I assume there's a process law here and a period between the time it's published and the time it could proclaimed.
Mr. Normand: It varies, I believe, from 30 to 90 days.
Mr. Scott: Would there be any benefits.... I sympathize with the public sense of all of this happening outside of some institution that they feel they have access to, and they feel they have access to us.
I can't support the amendment as proposed by Mr. de Savoye because to some extent I think it's overkill. I don't mean to diminish its importance, but to have all regulations go by a parliamentary committee to deal with that problem would probably draw us into things that would distract us from doing things the public could find fault with. We'd end up dealing with minute details.
In any case, could there be a trigger mechanism such that this committee would get special notice or something of that exercise? You keep referring specifically to the Gazette, but it's a public exercise.
Mr. Rowsell: I'll explain the procedures the health protection branch has adopted in all of its regulation-making proposals. We have a process called an information letter, and before a regulation is even drafted there is a broad consultation with the parties affected. They're given an opportunity, like a pre-Canada Gazette process. In the case of the pharmaceutical industry, for example, they're all informed about it, as is the health care profession and other health-related areas.
That information comes back, is evaluated by the department and forms part of the reassessment that goes in for the review by the Department of Justice and by the regulatory affairs secretariat. That's before it even gets to Canada Gazette number I. In Canada Gazette I, the provision can be for up to six months. All members of Parliament are provided with Canada Gazette I. So you have direct access and opportunity for input, and then those comments come back and the final regulations are drafted and again reviewed by Justice before being submitted to the Governor in Council for passage.
Mr. Hill: Finally, just to summarize, you know about the outcry from the health food industry on certain provisions in Bill C-7. We were victorious in taking subclauses 3(1) and 3(2) out of the law, because those provisions were so broad that they could have had an impact on this industry. Leave these provisions in the regulations and prepare for another outcry from the industry, because the victory that was gained is lost in the regulations.
Is this too big a club? Perhaps, but then we must address the individual sections as we go through them in order to give someone the power to review this legislation.
Mr. Scott: I take exception to that interpretation of what happened with the removal of clause 3. To say that the deeming provision is somehow the equivalent of an OIC - I don't agree at all. The idea of cabinet, Governor in Council, passing regulations is very different from the idea of having someone determine that something is deemed to be the same as something in law. I think it's a very important distinction and one that the record should show.
.1945
I had a great deal of difficulty with the deeming provision as it stood, and I have less difficulty with it now. I do accept that we might wish to have this process more transparent, and I appreciate the fact that, as members of Parliament, we all receive copies of the Canada Gazette, and so on and so forth. But with respect, as for that and the other 5,000 pieces of paper I receive every day, not all of it gets read.
So basically, as members of the committee, we're responsible for passing the legislation or sending it back to Parliament and have a special interest in this. It doesn't seem an unreasonable thing that we might consider some trigger mechanism that brings to our attention this exercise, which separates it from the other 5,000 pieces of paper, such that the committee would officially be notified, or something to that effect.
The Chairman: Colleagues, if I can, I'd like to suggest something here. There is no question that the issues - not only in this bill and some of the points raised by members, but really the whole issue in this House of Commons and this session of Parliament - have tried to address the issue of accountability and responsibility and the powers to ensure there's some comfort level achieved that is perhaps desirable, more desirable than what we have today.
This is a subject matter that I would prefer not be left here on the floor as a result of...although I think it's an important point. I wonder if this issue ought not to be kept alive and raised through a recommendation by this committee - again through the Standing Committee on Health - to channel it to an appropriate...whether it be the procedure and house affairs committee or the scrutiny of regulations committee, or something, so that the fundamental question of the propriety of the procedures now with regard to regulations or orders made by Governor in Council still provide us with that comfort level, and if not, to allow members of Parliament and other interests to make comment on the propriety of the present procedures.
I think that is much beyond simply Bill C-7, and it's something that can come at any time. This is not integral to the essence of the bill itself, but I don't think anybody here wants this issue simply to stop here. So I would ask the committee to consider either tabling or withdrawing this particular motion to amend the bill, with a view to making the subject matter a point of recommendation to the committee so that the points raised in our discussion here and in this specific amendment be handled in another forum that may be able to do the subject matter justice.
Mr. de Savoye.
Mr. de Savoye: Monsieur le président, the mechanism by which subclause 54(1) couldn't be implemented in real life is rather simple. As was previously mentioned, the Canada Gazette publishes those proposed regulations. These could be sent to the committee members, and at one point in time, on the order of the day, the committee could look upon the validity, or whatever, concerning those regulations.
We have been able to go through Bill C-7 in basically two afternoons - one short one, followed by a longer one today. Regulation shouldn't be any more difficult. It would give the committee members time to consult with different organizations on their point of view. It would enrich the reflection of the ministry to better whatever regulations can be better. And the only way to make sure this will happen in an orderly fashion is through something like subsection 54(1). If there was something else someone could propose right now to put into the text of law that would allow for the same provision, I certainly would gladly look upon it. But this is all we have, and I would not like to postpone this decision that belongs to the committee. That is, I believe firmly, an asset for Bill C-7, both now and in the future.
.1950
The Chairman: Thank you for all the interventions. I think we're prepared, then, to deal with proposed amendment B-14.
Amendment negatived: nays 3; yeas 2
The Chairman: At the end of the session, when we deal with recommendations, we may want to raise this subject matter to the committee, and we'll deal with it.
On clause 55 - Exemption by Minister
The Chairman: Clause 55 was simply stood at the request of Dr. Hill.
Dr. Hill, did you have points to raise in regard to clause 55?
Mr. Hill: We'll let that one pass, thanks.
Clause 55 agreed to
On clause 60 - Schedules
The Chairman: Clause 60, as amended.... We did pass an amendment and then stood the clause. I'm not aware of further amendments at this time.
Dr. Hill, at your request, did you -
Mr. Hill: We're on division for this one.
Clause 60 as amended agreed to on division
On clause 32 - Designation of regulations
The Chairman: We'll go back now, I believe, to clause 32.
Mr. Hill: That's the other one that I would like to have on the bill.
The Chairman: There were no amendments.
Clause 32 agreed to on division
Clause 40 agreed to
The Chairman: Colleagues, we have another request of the committee. I would like to ask the committee for unanimous consent to reopen schedule I.1. There is a technical correction that's going to be requested. Do I have the consent of the committee?
Mr. Hill: What is the technical correction?
The Chairman: I need consent to open the....
Mr. Hill: Do we get an explanation of what we're opening?
The Chairman: Sure.
Mr. Normand.
Mr. Normand: In schedule I.1, you have the French and then the English version. Just under the title ``Schedule I.1'', you have between brackets some sections. In English, you have 2, 5 to 8, 11, and so on; in French, in addition to having 2, 5 à 8, you have 3, and 3 should not be in there, because there's no reference in section 3 to schedule I.1. So the correction is to delete 3.
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The Chairman: It's a reference. It's a correction of an oversight. Do we agree to reopen schedule I.1?
Some hon. members: Agreed.
On schedule I
The Chairman: The amendment is to delete the reference to 3 in the French version.
Amendment agreed to
Schedule I as amended agreed to
Mr. Hill: Just before we close, that reminder about Bill C-61, which altered Bill C-7 last night.... I'd like to have -
The Chairman: We'll do that before we adjourn the meeting. Actually, we should deal with that right now. The item has to do with.... This was Bill C-61. Possibly you could explain the relevance of the impact of that on this bill.
Mr. Hill: It's an agricultural enforcement act. It was amended last night, and apparently that has an impact on this bill. They're adding, immediately after line 33 on page 2, a new clause, and it seems unusual to me that this could happen - that one bill could affect the other. I have documentation here that you're welcome to.
The Clerk: When they drafted this, I think they made a mistake by putting clause 4, Bill C-7.
Mr. Rowsell: Is this clause 4, Bill C-7?
The Clerk: Yes.
Mr. Rowsell: And clause 4 is gone.
The Chairman: We deleted clause 4.
The Clerk: We deleted clause 4. So there appears to be a misfire on this.
The Chairman: Maybe it was his tobacco.
Mr. Scott.
Mr. Scott: I assume you're moving now to recommendations.
The Chairman: No, we're going to clause 1, which has the short title.
Clause 1 agreed to
The Chairman: Shall the title carry?
Some hon. members: Agreed.
The Chairman: Shall the bill carry?
Some hon. members: Agreed.
The Chairman: We need a reprint. Shall the committee order a reprint for use at report stage?
Mr. de Savoye: On a point of order, is this for the committee or the subcommittee?
The Chairman: You're quite right. Shall the subcommittee of the Standing Committee on Health order a reprint for use at report stage?
Some hon. members: Agreed.
The Chairman: Shall I report the bill to the Standing Committee on Health?
Some hon. members: Agreed.
The Chairman: I have goose pimples. There are no speeches, not at this hour. Colleagues, this has been an interesting process. I don't want to belabour this any further. I think we have done some excellent work. I think that, as a result of the hard work of all committee members over this long period of time and with the extensive delays we've had, we have made this piece of legislation a much better piece of legislation, and we'll be able to, with confidence, speak to our colleagues about the importance of the bill and the primary focus and interest and the kinds of things that we were able to achieve, and I think we should all be proud of what we've been able to do.
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Finally, throughout this process we seem to have developed a consensus that in addition to reporting the bill back to the Standing Committee on Health, we would also like to transmit certain recommendations. I believe that a document drafted by our staff was circulated to you. I would ask for your concurrence that we report to the Standing Committee on Health, whether that happens at the next meeting or at a subsequent meeting when we have the precise wording.
The first item is with regard to the scheduling. Through our witnesses, the process and our conversations with each other we have determined that the rationale for these schedules and the process and procedures to be followed with regard to changes to schedules must have some criteria developed and must be reviewed.
This document suggests that the subcommittee recommend to the standing committee that the Minister of Health, in consultation...and it lists some agencies that we're aware of. I propose that we include the Canadian Medical Association. We should recommend that a special task force including these particular agencies be set up to establish precise and rational criteria for the scheduling of substances under the Controlled Drugs and Substances Act.
The final recommendation contemplates that the minister would implement - I think the intent should be that the minister undertake to respond to the final report of this task force as soon as possible. I think that's all we can reasonably expect from the minister, so I propose that the chairman of the Standing Committee on Health be asked to make that recommendation to the Minister of Health.
The second recommendation was with regard to the drug strategy. As you know, we had a complete presentation on the strategy. I think there have been enough interventions calling for a review of the drug strategy. As was printed on the form, I think this recommendation indicates that the subcommittee might recommend to the Minister of Health.... With the concurrence of the committee, I propose that we recommend to the Standing Committee on Health that they initiate a review of the Canadian drug strategy.
Mr. Rowsell: Drug policy.
The Chairman: Right. That would enable the Standing Committee on Health to set its own rules for the game and deal with this matter in a more expeditious fashion.
That's the two that were here. The final one is pursuant to -
Mr. Rowsell: I need some clarification. In your first recommendation you referred to a group of experts to be consulted. Is that a definitive list or a suggested list?
The Chairman: It says ``and other relevant bodies''. We'll retract the wording here, but I would like to include the Canadian Medical Association specifically.
Mr. Rowsell: I was thinking of people like the registrars, who are the licensing authorities.
The Chairman: Absolutely. This is not intended to be all inclusive. It's including but not limited to.
Mr. Rowsell: Thank you.
The Chairman: Finally, to deal with the issue raised by new clause 54.1 and the issue of Orders in Council, I would be prepared to pass on the essence of the points made, with a recommendation, if it's felt appropriate, to direct it to an appropriate body of Parliament to look into it.
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This is just as we are asking the Standing Committee on Health to initiate a review of the drug policy. This, with regard to the administrative and accountability provisions dealing with legislation and Governor in Council matters, is not to be taken lightly. I think that something good could come out of this if we would request that it be passed on.
Each of these three recommendations will be going forward to the Standing Committee on Health. I suspect I'd like a little bit of time, maybe not for the next meeting but probably for the subsequent one. I will just advise them that when we report the bill, I will have a subsequent report to come with some recommendations flowing from the work we did. That way, all members would have an opportunity to more fully comment on and discuss the three recommendations being sent from this subcommittee to our standing committee.
Mr. Scott: This is to understand, then. If there are recommendations that will be forwarded to the health committee, will this group ever meet again?
The Chairman: No.
Mr. Scott: So as for anything we recommend, there will be no opportunity to supplement this in terms of recommendations.
The Chairman: Yes; at the full standing committee. The three items that will go forward are scheduling, drug policy, and the issue raised by new clause 54.1. If at least those three items are tabled at the Standing Committee on Health, it is all wide open for a full standing committee discussion.
Mr. Scott: My question, Mr. Chair, is to whether or not there were other recommendations we wished to make. I'm inclined to have a reasonable discussion about these things if the occasion arises. This wouldn't be the best time, I don't think, but I don't want to bring closure to the exercise either.
The Chairman: No. Throughout all the work we do, this committee was formed specifically to deal with Bill C-7. However, simply because of the nature of the items raised and their importance, which was stressed by the witnesses and members, this is basically emphasis.
But, as you all know, we have the opportunity to raise any matter with the standing committee at any time to to ask for a sufficient time to air out the recommendation or the observation.
So I would encourage members that if there's anything else, they should certainly not hesitate to raise it with the standing committee.
But I would undertake at this point, as our last duty or chore, to pull together the essence of these three areas of recommendation, with a view that hopefully something in fact has our support, we wish that it would go forward and would like something to be done.
Ms Fry: A point of clarification, Mr. Chairman. On the paper you gave us, it dealt with suggested recommendations pertaining to Bill C-7. Recommendation 2 deals with Canada's drug policy. You recommend that we should ask the minister to ask the Standing Committee on Health to undertake a review of the existing drug policy. May I add the word ``comprehensive'' to that?
The Chairman: Actually, I'm not suggesting that we ask the minister, but that we ask the Standing Committee on Health -
Ms Fry: To ask the minister.
The Chairman: No, to undertake a comprehensive -
Ms Fry: To undertake a comprehensive.... Did you use the word ``comprehensive''?
The Chairman: The wording I had initially here is that the subcommittee on Bill C-7 recommends that the Standing Committee on Health undertake a comprehensive review of existing drug policy.
Ms Fry: And page 2 would be deleted.
The Chairman: Yes.
Ms Fry: That's because it then sort of narrows it.
The Chairman: Yes.
Ms Fry: Okay.
The Chairman: Yes, there's no necessity to limit.... The committee will decide the extent to which it's going to do its work and set the rules.
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Mr. Scott: My only question, Mr. Chair is that, by virtue of the fact that these will go forward as recommendations by the subcommittee to the full committee, having studied this, it seems to me that any recommendations this subcommittee is going to make have to be made right now. By the time this gets to the full committee, it's no longer going to be a recommendation; that will have been completed.
The Chairman: However, all members on the committee are also represented on Health, and they can certainly speak to it. I think we can get to the same point.
Mr. Scott: Procedurally, if I might, am I going to be ruled out of order?
The Chairman: We're doing this because we want to do it. It has nothing to do with the bill. Flowing from our work on the bill there may happen to be some items we think are noteworthy that we'd like to bring forward that are supplementary to reporting the bill back. We just want to also make these points.
I want to assure the members that with regard to the three matters already mentioned, it would be my intent to indicate to the Standing Committee on Health that I will pass on, in a written report, our recommendations with regard to those three items. That's not to pre-empt or preclude any other recommendations or suggestions on any other matter than any member wants to raise with the Standing Committee on Health, which they can do at any meeting.
If the member feels there's another item or two on which it might be helpful to seek the consensus of this particular subcommittee, I'd entertain that. We've gone this far since April 1994.
Mr. Scott: I would just make a point. For instance, I'll give you an example.
One of the things that was said to us repeatedly had to do with the fact that the minister was considering some process that would give more freedom to the production of hemp. We decided as a group that it wasn't within this bill for this discussion to take place.
We're going back now a year and a half, so forgive my lapses in memory. However, I don't think that relieves us of an obligation to realize that people came forward to make that suggestion. We know that the minister at the time, at least, was considering that.
Maybe it's done. It's been so long, I don't know.
The point is that this would be one recommendation the committee might wish to make that is not within the context of Bill C-7. But it's certainly something that came to us a number of times as a suggestion by a number of people who presented. We could in fact pass along to the committee, therefore to the minister, that we would like to see that exercise reach some conclusion.
Ms Fry: It's my understanding that this would obviously be dealt with under the further recommendations we made, which was to have a comprehensive policy review and/or to look at scheduling.
But if you're talking about hemp itself, you know at the moment that the minister has the ability to grant a licence for research projects only in order to look at the issue of hemp being used as a fibre, etc. So that's already under way.
I suppose, depending on what the research shows, the minister may then make a further decision to bargain it or what not, depending on what the research shows, as to whether this is a feasible thing to do or a way to go. Then it may very well be that this will be answered.
Mr. Scott: In the course of things, I'm trying to do justice to what I thought were thoughtful representations made to us. These recognized that the absence of action in this instance precluded an activity that we would like to see happen that required the minister's action. So they were asking us to give the exercise a push, as I understand the request. It strikes me that it wouldn't be harmful for us to reflect that in a recommendation.
Mr. de Savoye: The way I understand this, our subcommittee has only the opportunity - not the power or responsibility - to make a few recommendations to the committee, which has the power, to a certain extent, to follow suit or not.
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We have three recommendations here. Two are written; the third one is circumscribed. This does not impede any member of the committee itself to make a recommendation like the one you're doing, but it's basically the committee that will decide.
The purpose of the subcommittee is to make sure that the main concerns submitted to us by the witnesses.... I'm not saying hemp is not one of the concerns, but it might not be a vast one. It's more punctual and precise.
The main concerns are addressed by recommendations 1, 2 and 3. I think that should be the report we will give to the committee just to keep things together that are ample in their view.
You may add hemp as another preoccupation. I'm sure other members of this subcommittee will concur. Just don't mix the level of things.
Mr. Scott: My query was more as an example in that I wanted to make sure the opportunity would exist. I would in fact appreciate the opportunity to do it at a different time myself, because I think that I would be better prepared if that occasion arose. I just wanted to make sure that it wouldn't be considered an inappropriate intervention at that time outside the bounds of our report.
Since I think I have a sense from colleagues that this wouldn't be inappropriate, I'm happy enough to wait my turn.
The Chairman: Are there other interventions?
Colleagues, on behalf of all of us, thank you to the officials, the staff and all the others, such as counsel and support staff, and everyone who's borne with us. Thank you very much. Merci beaucoup.
The meeting is adjourned.