Royal Assent of Bill C-37 - An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts

May 18 2017 

Bill C-37 amends the Controlled Drugs and Substances Act (CDSA), the Customs Act and other related acts, to better equip both health and law enforcement officials to reduce the harms associated with drug and substance use in Canada. Specifically, the Bill:

• Streamlines and simplifies the application process for communities who wish to open supervised consumption sites, while ensuring that community consultation continues to be an integral part of the process.
• Prohibits unregistered importation of designated devices that may be used in the illicit manufacture of controlled substances, such as pill presses and encapsulators;
• Amends the Customs Act to remove the exception that prevents border officers from opening mail weighing 30 grams or less, in order to stop drugs, like fentanyl, from entering Canada illicitly through the mail system; and
• Makes a number of amendments to the CDSA, such as allowing temporary scheduling of controlled substances and faster disposition of drugs and substances by law enforcement, which would allow the government and law enforcement greater flexibility in addressing emerging risks.

Supervised Consumption Sites

Those wishing to operate a supervised consumption site in Canada must first obtain an exemption from the Controlled Drugs and Substances Act (CDSA).

Bill C-37 streamlines the application and renewal process and adds in new transparency provisions. This includes reducing the application criteria from 26 to 8, aligned with the 5 factors set out by the Supreme Court of Canada in Canada v. PHS Community Services Society:

• Impact on crime rates;
• Local conditions indicating need;
• Regulatory structure in place to support the facility;
• Resources available to support its maintenance; and
• Expressions of community support or opposition.

Reducing the number of criteria relieves the administrative burden on communities seeking to establish a supervised consumption site, without compromising the health and safety of those operating the site, or the surrounding community.

In the interest of removing undue barriers to the review and approval of supervised consumption sites, Health Canada will also no longer require a complete application to begin a review. A review can begin as long as basic information about the physical site and key components such as community consultations and policies and procedures are included.

Service Standards for Application Review

Health Canada is committed to processing applications for supervised consumption sites in a reasonable timeframe. Service standards for certain elements of the application evaluation process have been established.

Greater Transparency

Under the new legislation, decisions on applications will be made public, as well as reasons for a refusal. Information about the status of applications will be publicly available to increase transparency with applicants during the review process.

Streamlined Renewals

Renewals of existing supervised consumption sites will no longer require a new application. A renewal can be requested simply by informing Health Canada of any changes to the information that was submitted as part of the original application. This will ensure that operators of existing sites are able to focus on the maintenance of their facilities and serving the needs of their community.

Scientific Research

The amendments allow Health Canada to grant exemptions for activities with controlled substances that have been illicitly obtained for the purposes of scientific research or other activities that the Minister determines are in the public interest, such as drug testing programs.

What has not changed?

There will continue to be a requirement for consultations with a broad range of community groups. The amendments continue to require certain elements, such as results of consultations with stakeholders and the community in which the site would be located, information on the proposed site location, description of the health services offered, and site security information, in order to ensure the safety of patients, staff and the community around a supervised consumption site.

Action to Reduce the Supply of Illicit Opioids and Other Drugs

The Royal Assent of Bill C-37 closes gaps in the Government’s enforcement toolkit by amending the Controlled Drugs and Substances Act (CDSA), the Customs Act and the Proceeds of Crime and Money Laundering and Terrorist Finance Act to prevent the uncontrolled import into Canada of devices that can be used to manufacture illicit drugs, such as pill presses and encapsulators, and to provide authority to officers at the border to open packages weighing 30 grams or less.

What major amendments have been made to the Controlled Drugs and Substances Act?

Action to help halt the production of illicit opioids is essential to fighting the opioid crisis. Counterfeit tablets made with pill presses can look like pharmaceutical drugs that have been diverted from the legitimate market. Bill C-37 requires every pill press or encapsulator imported into Canada to be registered with Health Canada. This will make it harder for drug dealers to mass produce counterfeit pills using fentanyl, disguised as much less powerful prescription drugs like oxycodone.

Bill C-37 broadens certain controls that had been applied to the production, sale and importation of anything used in the production or trafficking of methamphetamine so that they now apply to any controlled substance.

These changes will increase law enforcement’s ability to take early action against suspected drug production operations. 

What amendments have been made to the Customs Act?

Under the Customs Act, officers at the border previously had the authority to open and inspect most packages entering Canada, if they suspected the package contained contraband such as drugs. However, they had to request permission from either the sender or the recipient to open mail weighing 30 grams (g) or less. If no permission was received, the mail was returned to the sender. This exception allowed illegal importers of dangerous substances, such as pure fentanyl, to ship many separate small envelopes, weighing 30 g or less, knowing some would get through and that there would be no legal consequences for the importer if some of the packages were detained. Furthermore, those that were detained would be returned to sender, who could try again.

Bill C-37 has removed the 30 g or less mail exception from the Act, so that officers at the border can open international mail of any weight, should they have reasonable grounds to suspect the item may contain prohibited, controlled or regulated goods (e.g. fentanyl and chemicals that can be used to make it).

What amendments have been made to the Proceeds of Crime and Money Laundering and Terrorist Finance Act?

Amendments to the Proceeds of Crime (Money Laundering) Act and Terrorist Financing Act have been made to mirror the changes to the Customs Act to avoid the creation of uncertainty about the scope of officer authorities. 

Temporary Accelerated Scheduling

New psychoactive substances (sometimes known as designer drugs or legal highs) are often designed to mimic the effects of illegal drugs while being chemically different enough to not be caught by existing laws. Dozens of these substances appear on the illegal drug market every year.

With the Royal Assent of Bill C-37, the Minister of Health has been granted powers to quickly schedule and control a new and dangerous substance. Bill C-37 allows the Minister of Health to temporarily add a substance that poses a significant risk to public health or safety to a schedule of the CDSA, pending a comprehensive review and decision on permanent scheduling.

Modernizing Legislation to Reduce the Risk of Diversion of Controlled Substances

Many of the legislative amendments in Bill C-37 modernize the Controlled Drugs and Substances Act (CDSA) to strengthen law enforcement and the Government’s ability to monitor, promote and enforce compliance. Key elements to modernize compliance and enforcement authorities include the following:

Improved Inspection Authorities

Previously, Health Canada inspectors were able to inspect only those sites where authorized activities with controlled substances and precursors were taking place. Bill C-37 modernizes inspection authorities under the CDSA to allow Health Canada inspectors to enter places where they suspect unauthorized activities with controlled substances are taking place.

For example, Health Canada is now able to inspect vehicles used to transport controlled substances, or establishments whose licences to conduct activities with controlled substances have been suspended or revoked, to ensure that illegal activities are no longer taking place.

The inspection authorities do not allow inspectors to enter private dwellings without the consent of an occupant or a warrant. As always, should Health Canada’s inspectors believe that illicit activities with controlled substances are taking place, they will refer the case to law enforcement officers.

New Administrative Monetary Penalties System

As with other modern legislation, the amendments will provide the Minister with the authority to develop a system of administrative monetary penalties. This will allow Health Canada to fine a regulated party for a violation of certain provisions of the CDSA or its regulations. This will in turn improve Health Canada’s ability to enforce the CDSA and its regulations without resorting to criminal prosecution, or suspending or revoking a license.

Regulations will be required before this provision comes into force.

Streamlined Disposition

The amendments will introduce a new expedited process for the disposal of seized controlled substances, precursors and chemical offence-related property, whose storage or handling pose a risk to health and safety. The new process will not require a court order, or authorization from Health Canada, and will therefore reduce the burden on courts, government and law enforcement agencies.

Regulations will be required before this provision comes into force.

Military Police

Previous authorities under the CDSA did not allow for the Military Police to be designated as a police force under this Act. This limited the kinds of investigative techniques and tools available to them in the course of a drug investigation. Under the amendment, military police will be designated as a police force, in their respective areas of jurisdiction, which will allow them to exercise a full range of investigative tools.

Regulations will be required before this provision comes into force.