Cannabis Bill: Concerns with Respect to Regulations

Hon. Larry W. Smith (Leader of the Opposition): I’d like to spend a few minutes. I studied regulations in the last few days, and I thought I could give some feedback that would be helpful for our whole group in terms of framing present and future bills.

Honourable senators, I wish to speak in response to comments made in the chamber regarding concerns with respect to many critical aspects of Bill C-45 that will be dealt with through regulations that are yet to be seen. It is important to set the record straight so that Canadians understand the liberties the government has taken with the well-established regulatory process in their rush to legalize marijuana.

It was suggested in the chamber, on Friday past, that draft regulations have been published. This is completely untrue. It is true that the government has released several consultation papers, which may provide some clues as to what may be included in future regulations, but we must be clear that this is not an acceptable substitute for a long-standing regulatory process that provides transparency and certainty for Canadians.

Departments and agencies are required to publish draft regulations in the Canada Gazette, Part I, to allow for a public comment period, and then take the comments received into consideration. However, we learned that, in October 2017, Health Canada sought a special exemption from the Treasury Board not to publish draft regulations for the cannabis act to ensure that regulations would be in place no later than July 2018, when the government had originally committed to legalizing marijuana.

The policy of pre-publishing regulatory proposals in the Canada Gazette, Part I, is intended to promote transparency and effectiveness by offering a final comment period before regulations are considered by the minister responsible for the Treasury Board for approval by the Governor-in-Council. There are some very limited circumstances under which proposed regulations may be exempted from pre-publication.

According to the Treasury Board policy, exemptions are granted because the proposed regulations are either minor housekeeping amendments or:

Regulations that respond to emergencies that pose major risks to health, safety, the environment, or security.

It is clear that regulations under Bill C-45 satisfy neither of those requirements, but the government openly subverted the process based on “timing considerations” resulting from the Prime Minister’s previous commitment to have legal marijuana in the hands of Canadians by July 1.

If the government had gotten its act together in time, draft regulations could have been prepublished, allowing for a meaningful comment period. In a recent note to clients, law firm Torys, out of Toronto, explains:

It is highly unusual for the federal government not to pre-publish draft regulations for consultation and the proposed regulatory framework and subsequent Summary Report still leave many questions unanswered. While stakeholders and industry detailed key concerns, for its part, the government did not provide meaningful insight on where it will land on many regulatory questions leaving many issues still to be resolved. One thing is certain, in its drive to roll out legalization, the federal government is determined to implement the proposed Act as close to the original target date as possible.

Both the government and the sponsor of this bill say that they are prepared to take the time they need to get it right, but it has been clear from day one that the driving force behind cannabis legalization is this government’s desire to meet their own self-imposed political deadline, regardless of the consequences for Canadians. This is despite the fact that stakeholders have expressed concerns about their ability to comply with regulations that they haven’t seen and despite questions from provinces and territories about how they can be expected to align their own regulations in the absence of specific regulatory text.

This is doubly important when we consider that many critical issues relating to legalization are not dealt with in the bill itself. Expert witness testimony received at the Social Affairs Committee was concerned with the issues that are not defined in legislation, including questions about outdoor commercial cultivation, THC content, packaging and labelling requirements.

The Cabinet Directive on Law-Making provides clear guidance on this matter:

Matters of fundamental importance should be dealt with in the bill so that parliamentarians have a chance to consider and debate them. The bill should establish a framework that limits the scope of regulation-making powers to matters that are best left to subordinate law-making delegates and processes.

Colleagues, it is clear that many of the issues that the government has deferred to regulation involve important matters of policy and principle, which is a clear departure from the law-making process. Relegating key legislative questions to regulations is becoming a pattern with the government, leaving key questions in the hands of officials, while tying the hands of parliamentarians.

Even supporters of legalization readily admit that legalization alone does not reduce the health harms and risks of cannabis. We know from decades of experience with tobacco and alcohol control that choosing the right mix of regulations is crucial. To quote from the Centre for Addiction and Mental Health’s Cannabis Policy Framework so frequently cited by the sponsor of the bill, “[w]hether legalization is a net positive or negative for public health and safety largely depends on regulatory decisions and how they are implemented.”

The government’s proposed regulatory approach to cannabis leaves serious health and safety questions unanswered. All Canadians deserve to know the facts about how legal marijuana will affect their daily lives. No matter how widely the government claims to have consulted, they have sacrificed transparency for the sake of a political deadline.

With so few details offered in the bill itself and without seeing the regulations, we have no way of knowing if they will protect the health of Canadians or keep our kids safe.

The resumé was not to criticize anybody. It was to hopefully outline the importance of regulations so that all of us in this house truly understand how things should work from the actual process, start to finish, with making laws and the importance of regulations. Listening to it and having people say a couple of times, “The regulations, the regulations,” well, the regulations aren’t made, and they did get a pass on the regulations.

The question is this: As parliamentarians, do we want to make sure, moving into the future, that laws we receive have the proper support structure to make them complete? That’s all I wanted to share with you today, because maybe as we move forward, it will give us food for thought in terms of how we handle future legislation. Thank you very much.