Bill to Amend—Twenty-fifth Report of Social Affairs, Science and Technology Committee Adopted
May 30, 2018
Hon. Dennis Glen Patterson: Honourable senators, I rise today to speak to the report of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts . I feel it is appropriate at this stage that I comment on the committee process which led us to this report.
First, let me thank Senator Eggleton for managing the compressed time frame for clause-by-clause consideration of this bill in a very fair manner to all members. I think he went out of his way at times to allow all members to speak.
In fact, Senator Dean got away with turning a point of order into an opportunity to introduce new facts into the debate, in rebuttal to other evidence which had been presented about the science regarding the vulnerability of youth to marijuana.
But I do have some concerns about the process of debate at committee. My first concern is about the role of officials during clause-by-clause consideration. Colleagues, let me paint the picture: The officials who presented evidence as witnesses for the government became part of the debate in committee. There was a phalanx of 10 officials sitting at the committee table who were active participants in the political debate during clause by clause at committee. They were frequently asked by the chair to comment on political issues.
For example, during the clause-by-clause debate, an amendment was proposed by Senator Seidman that would have prevented what is called “brand stretching” in an effort to restrict youth promotion and lifestyle advertising. The amendment would have prohibited the use of cannabis brand elements on items that are not cannabis or accessories. In other words, by the amendment, you couldn’t throw a cannabis brand logo on a T-shirt.
After the amendment was proposed, the chair asked, looking at the officials:
Other comments? Let me ask the officials about the implication of removing this whole section. Does it throw it up in the air as to whether this element is allowed or not allowed, or how does it work if it’s not in here at all?
After this, two different officials, one from the Department of Health and one from the Department of Justice, were both invited to weigh in. The official from Health opined on potential unintended consequences while the official from Justice stated her beliefs that the entire bill is consistent with the Charter and warned that she could not say whether or not the proposed amendment would stand a Charter challenge.
Following their interventions, the question was called without any participation or debate by senators. The amendment failed on what was recorded as a tied vote of five yeas and five nays with two abstentions. The two abstentions were Senator Dean, the sponsor of the bill, and Senator Petitclerc.
Obviously, colleagues, senators were torn on this issue. However, no parliamentarians entered into the debate in this instance.
Now, we have been criticized for being an unelected body, but we are responsible to the Canadian people. We take an oath when we’re sworn in to protect the rights of Canadians as legislators. Bureaucrats are neither elected nor responsible to the public. They are ultimately responsible to the minister or ministers who are attempting to put this bill through in a very rushed timetable.
My experience in sponsoring numerous government bills over my nine years in the Senate is that the role of officials is to provide evidence on behalf of the government as witnesses in considering the bill prior to clause-by-clause consideration and to be available for advice on technical issues which arise during clause-by-clause consideration, but certainly not to actively participate in the political discussion and consideration of amendments and observations at the clause-by-clause stage.
But that’s exactly what happened here. This was unfair to officials. They were put in an awkward position by the chair, torn between their duty to provide technical advice, answer questions that were asked and background information, but also knowing that their political masters have made swift passage of the bill without amendments, or without too many amendments, a priority.
I also want to endorse Senator Seidman’s expressed concerns about respect for the work of the members of the four other Senate committees who I believe took their tasks very seriously to study various aspects of the bill. It amazed me that the work of the other committees did not seem to be respected. I fully expected that when a committee operating in a nonpartisan manner, as I believe they all do, came up with a unanimous recommendation on an amendment, that members of the Social Affairs Committee would support that amendment when it was introduced at the mother committee, Social Affairs. But on several occasions that did not happen.
Honourable senators, I do not believe that this report appropriately reflects the concerns brought forward by unanimous agreement in the four committee reports submitted to Social Affairs. It’s important to note that studies conducted by the Aboriginal Peoples Committee, the Legal and Constitutional Affairs Committee, the Foreign Affairs Committee and the National Defence committee were as comprehensive as possible within the short time frame given. Each report examined the issue of legalizing marijuana with a particular, focused lens. These committees were chosen to conduct parallel studies because their members have expertise in the different subjects that form a piece of this complex piece of legislation. It is that expertise that ensures recommendations, amendments and debates are fully informed.
For example, during debate of my proposed amendment — which was about giving respect to section 35 of the Constitution that includes the rights that flow relating to the ability to self-government, the ability to govern themselves and that pays respect to the duty to consult — which I presented as a member of the Aboriginal Peoples Committee and the only member of that committee sitting on Social Affairs, Senator Gold stated, on the issue of consultation:
Indeed, it’s not even clear what the duty to consult fully comprises. It’s currently the law in Canada that the duty to consult does not actually extend to the legislative process. I think that might change. There’s a case before the courts. I’m not suggesting for a moment that we stand on the narrow parameters of the law, but it is still the case that there has been discussions, engagement. It’s not enough, according to some. It was enough, according to others. But there is a grey area of law in which we have to realize that we’re operating.
Honourable senators, the Nunavut Land Claims Agreement clearly compels the government to consult on any legislation that brings about major social change under article 32.21, making the legalization of cannabis — what the government itself has called massive transformative social change — an issue that affects the rights defined under the Constitution and expressed through the Nunavut Land Claims Agreement.
Additionally, I checked the website of Indigenous Affairs Canada, and found a document entitled Aboriginal Consultation and Accommodation – Updated Guidelines for Federal Officials to Fulfil the Duty to Consult.
. . . the duty to consult is a constitutional duty; applies in the context of modern treaties; officials must look at treaty provisions first; and where treaty consultation provisions do not apply to a proposed activity, a “parallel” duty to consult exists.
This is from Canada’s own website. Senator Gold also entered into the record that:
Different communities have different legal powers vis-à-vis their power, through bylaws or other legislative measures, to restrict or regulate cannabis on the lands over which they have control. They range from full rights of self-government, either recognized in treaties or by virtue of rights never ceded, to those who are under the auspices of the Indian Act, where the bylaw powers over intoxicants are the subject of some considerable disagreement, at least between certain communities and the government.
Well, honourable senators, the Aboriginal Peoples Committee received clear testimony from Stefan Matiation, Director and General Counsel at Justice Canada, that explicitly contradicts that assertion of Senator Gold. In response to a question from Senator Boniface, during his appearance before the committee on April 17, 2018 on the power of communities to prohibit marijuana via by law, Mr. Matiation responded:
The cannabis act is legislation of general application, so a First Nations would not be able to use a bylaw to override the cannabis legislation.
So drawing from my experience and nine years sitting on the Aboriginal Peoples Committee and dealing with these questions of Aboriginal rights, I proposed the amendment based on the unanimous vote of the Aboriginal Peoples Committee, which included the recognition of the inherent right to govern according to the nation-to-nation relationship, which our government is promoting as the most important relationship they have because if Bill C-45 does not give that right, we were told in the Aboriginal Peoples Committee — you know I’ve got to thank Senator Woo for lightening things up at that stage. We started at 1 p.m. We had a half-hour break to grab a sandwich and we went straight through until 10 p.m. Maybe we were getting a little giddy, I don’t know, but he lightened things up by calling my motion — listen to this — “platitudinous.” I have to say I knew what a platitude is; I didn’t know what he meant by platitudinous. But I have had a chance to look it up in the Canadian Oxford Dictionary. It is used to describe hackneyed, dull, insipid, banal, trite. I’m disappointed and, I guess, surprised, and, really, I was amused, at that stage of the debate, that the leader of the ISG would call an amendment that seeks to address the legitimate concerns raised by Indigenous peoples before the Aboriginal Committee hackneyed, dull, insipid, banal or trite.
Colleagues, I am fundamentally opposed to this bill. I think it’s badly drafted. I think it will have a very negative effect in my region of Nunavut, where the social fabric is already very fragile, where half the kids are not even attending school in many communities, where we have limited mental health and community wellness programs, and very few that are culturally sensitive and involve trusted community peers, and — you’ve heard me say this before — no treatment facilities in any of the three territories, treatment facilities for addictions, not one.
I get angry when I feel the pressure to pass this bill quickly, and I feel disappointed that the unanimous recommendation of the Aboriginal Peoples Committee to address these pressing questions and to address the rush, which have been confirmed by the Assembly of First Nations, by Nunavut Tunngavik at their annual general meeting, by witnesses who appeared before the committee, by people in my constituency of Nunavut, who I took the trouble to visit in March, all 25 of them. I found them concerned, unprepared, feeling rushed, puzzled why Canada would do this without consultation. The Mayor of Resolute Bay said, “I don’t feel like I’m part of Canada anymore.”
Colleagues, I’m speaking today on the committee report, and I respectfully offer these criticisms of the process, how the officials became part of the all-important political debate on clause by clause. I respectfully suggest that’s not appropriate.
Senator Eggleton did an amazing job shepherding these 40 amendments or so through, but the process was not perfect. Thank you, honourable senators.
The Hon. the Speaker: Senator Woo, do you have a question? Senator Eggleton has a question. However, your time has expired. Are you asking for five minutes to answer questions? Is leave granted, honourable senators?
Hon. Senators: Agreed.
Hon. Yuen Pau Woo: Senator Patterson, would you clarify for our chamber and confirm that your amendment tabled at yesterday’s Social Affairs Committee was not, in fact, one of the recommendations of the Aboriginal Peoples Committee but was a variation which simply asked for the government to prepare a report on the findings of consultations rather than to do what the Aboriginal Peoples Committee asked for, to provide treatment facilities, to provide education, to provide remedies to help young people on Aboriginal lands and other non-Aboriginals get the care and treatment that they deserve, which can be provided if, in fact, Bill C-45 is put into law? Would you confirm for our chamber that you did not, in fact, put forward a proposal, an amendment, that was faithful to the Aboriginal Affairs Committee but one that was quite different indeed?
Senator Patterson: Gee, Senator Woo, you had me going. You were repeating my concerns about the bill, and I thank you for that. These facilities should be put in place or committed before the bill is passed. Now, the Aboriginal Peoples Committee motion was to delay the coming into force of the legislation until those issues had been addressed.
My report, which followed a series of 7-5 defeats of motions that had been recommended, many based on previously unanimous recommendations from committees, took into account that there sure was not an appetite in the committee to accept even unanimous committee motions and recommendations for amendment.
So I softened it a bit. I’m not looking at it word for word, but I think I said in the motion that before the bill is implemented, the government should report to both houses of Parliament on progress on these issues. Sure, it was a less powerful version of the same intent that the committee had put forward, which was to suspend the coming into force, delay for up to a year, which I know caused great consternation on the other side.
Hon. David Tkachuk: You could move it in third reading, though.
Senator Patterson: So I softened it because I could sense the surprisingly consistent opposition of members of the ISG to any amendment proposed even based on unanimous committee reports.
Senator Tkachuk: Liberals. They’re all Liberals.
Senator Patterson: Several members of the ISG on the Legal and Constitutional Affairs Committee voted against the unanimous recommendation of their own committee when they were in Social Affairs.
Senator Tkachuk: Liberal. They’re Liberals. What do you expect? They behave like Liberals; they are Liberals.
Senator Patterson: So, yes, I softened the motion. Forgive me. It was insipid and platitudinous, I confess. That’s what I did. I was trying to get something through, and even that softer motion got defeated. That’s my story.
Senator Tkachuk: Maybe he’ll support it in third reading.
Senator Woo: Thank you, Senator Patterson, for confirming that you in fact did not put forward a proposal and amendment that was faithful to the recommendations of the Aboriginal Peoples Committee. Would you not agree that your amendment, which would create a delay for the purposes of producing a report —
The Hon. the Speaker: Senator Woo has the floor, Senator Tkachuk. Please, could we have some order? It’s hard to hear Senator Woo with you shouting. Senator Woo.
Senator Woo: Would you not agree that proposing an amendment that would simply lead to the creation of a report, rather than any specific tangible actions, would, in fact, result in the delay of the provision of the much-needed services and actions that have to be taken to deal with the current and ongoing challenge of drug use across this country, including in First Nations communities?
Senator Patterson: Thank you for the question, honourable senator. You know, I asked Parliamentary Secretary Bill Blair about progress on all of those issues — addiction treatment facilities, culturally appropriate educational materials, dealing with the Excise Tax Act, which the Aboriginals were left out of by Canada and the federal-provincial-territorial finance ministers.
Mr. Blair said — I’m going to paraphrase him — “Trust me; it’s in hand. It’s all going well. You’ll hear, eventually, what happens.” I said, “That’s not good enough.” We can’t deal with the excise tax issue after the bill has been passed. No one will ever agree to divide up the pie once the bill has been passed. The Aboriginals have been left out, strangely, from a government that so values that relationship. The First Nations Tax Commission told us that very clearly: “We couldn’t even get a meeting with the minister, though we tried.”
Consultation was abysmal. They’re feeling left out, and the report that I modestly asked for, the timing and the speed of that report, is entirely within the hands of the government. They could do it in 30 days if they gave it a priority, a priority that they haven’t seemed to put on dealing with Indigenous issues in this bill up until now.
The Hon. the Speaker: Senator Patterson, your time has expired, but Senator Eggleton, who tabled the report, wanted to ask a question. Are you asking for time to answer that question?
Senator Patterson: If I should be privileged to be given that time, yes.
The Hon. the Speaker: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Hon. Art Eggleton: Senator Patterson, I’m having a difficult time appreciating a couple of things that you’ve said. One is that — and Senator Seidman, to some extent, said this as well — many of the recommendations of the committees, the four other committees, were ignored. Of the 21 observations, there is quite a number of them.
Many of the committee recommendations were not specific amendments to the bill itself; they were recommendations on actions they felt the government should take. For example, Foreign Affairs Committee suggested the government engage with the relevant U.S. federal authorities in order to develop a common understanding among Canadians and Americans of the changes in Canada’s domestic policies and the consequences of these changes, et cetera. Quite a number of them were not put in as amendments to the bill but as recommendations.
I’m having a hard time understanding why the two of you have criticized us not taking suggestions into consideration. I thought we respected those observations and recommendations quite well.
Add to the examples above the ones from the Aboriginal Affairs Committee. Aside from the deferral, we put in the same kinds of recommendations. I wonder if you might comment on that.
Finally, I have a hard time appreciating your concern about the officials, because I made it clear to the officials on more than one occasion that they were not there to comment on policy. They were to let us know, if we asked them questions, what the consequences were of certain amendments. It was to get an official understanding. What is wrong with that? We weren’t asking them for policy. They very clearly know that. It’s an insult to our officials. They know where to draw the line between giving that kind of information —
Hon. Senators: Question.
Senator Eggleton: Can you comment on that, please?
Senator Patterson: Thanks for the question. I didn’t mean to impugn the civil servants. I said the chair put them in an impossible position by having them, first of all, at the table as equals with the senators. They were there at the witness table. My experience is that officials sit outside the committee table and are available to be called on from time to time regarding technical matters.
I respectfully say that some of the questions asked strayed into policy. I cited a couple. The officials were put in an impossible position, I believe. That’s not the practice I have experienced in committees. I noted it as being unusual. Forgive me for commenting on that.
On the business of recommendations showing up in observations, yes, I should have mentioned that. I did get my attempted motion, which was defeated, for an amendment, which was defeated in committee, put into an observation. Thank you for that; it’s better than nothing. But it’s an observation and not an amendment to the bill, which was what I wanted. Forgive me for minimizing the observations. They are important, and a number of them reflected committee motions.
But I was particularly concerned that when a unanimous recommendation came from a committee for an amendment, it was disrespected and, in most cases, defeated. Yes, the issue showed up in observations. That’s not good enough, honourable senators.
Hon. Denise Batters: On debate.
The Hon. the Speaker: Senator Patterson’s time has expired again. He will have to ask leave if you want to ask a question.
Do you want more time?
Senator Patterson: I’ll leave it up to the chamber, Your Honour. I know we have other pressing business.
The Hon. the Speaker: Is leave granted, honourable senators?
Some Hon. Senators: Agreed.
An Hon. Senator: No.
The Hon. the Speaker: I hear a “no.”