1 1 May 20, 2010 2 JOCELYN KULA, affirmed. 3 (PROCEEDINGS COMMENCED AT 9:32 A.M.) 4 CROSS-EXAMINATION BY MR. TOUSAW: 5 1 Q We met moments ago, but I will just identify 6 myself for the record. My name is Kirk Tousaw. 7 I'm counsel to Mr. Bennett in these proceedings. 8 He's present here with us, and thank you for 9 coming today. 10 If you don't understand a question of mine, 11 I would appreciate it if you'd just let me know 12 that and then I will do my best to ask a more 13 intelligible question. 14 A I will do that. 15 2 Q Occasionally I assume that you may know more 16 than me or that I may know more than you, and I 17 want us to be sure that we're clear with each 18 other. Does that work for you? 19 A That's fine. 20 3 Q Great. You've signed an affidavit in this case, 21 court file T1073-09, dated 28th of January, 22 2010. That's correct, isn't it? 23 A Just looking at the date. That's correct. 24 4 Q I managed to read that all right then. 25 In that affidavit you identify yourself as 2 1 the manager of the Policy and Regulatory Affairs 2 division of the Office of Controlled Substances, 3 Health Environments and Consumer Safety Branch, 4 Department of Health -- manager of the Policy 5 and Regulatory Affairs division within some 6 other branches of Health Canada, let's put it in 7 a way. That's your current title? 8 A That is correct. 9 5 Q And how long have you held that title? 10 MS. SOKHANSANJ: Mr. Tousaw, before we go any 11 further, could we just mark the affidavit as an 12 exhibit, please? 13 MR. TOUSAW: Sure. Absolutely. I think that will be 14 useful. We'll mark it as Exhibit 1. 15 EXHIBIT 1: Affidavit of Jocelyn Kula dated 16 January 28, 2010 17 MR. TOUSAW: 18 6 Q How long have you held the title of manager of 19 Policy and Regulatory Affairs division? 20 A I've been in the position since November of 21 2006. 22 7 Q And prior to that, what position, if any, did 23 you hold with Health Canada? 24 A I was a manager of something called the 25 Departmental Regulatory Affairs Secretariat in 3 1 the Strategic Policy Branch. Of Health Canada, 2 I'm sorry. 3 8 Q And how long did you hold that position? 4 A Wow, I have to do some math. 5 9 Q Generally. 6 A I think approximately four years. Three and a 7 half years certainly. 8 10 Q And prior to that? 9 A I was a senior policy analyst in the Strategic 10 Policy Branch. 11 11 Q And same question: how long did you hold that 12 position? 13 A Three years. 14 12 Q Other roles at Health Canada prior to that role 15 in the senior policy? 16 A I've been with Health Canada for approximately 17 15 years in various roles and responsibilities. 18 I've been involved in drug regulation, medical 19 device policy, international policy, new 20 technology policy, those kinds of roles. 21 13 Q And prior to working with Health Canada, did you 22 have employment outside of the government or 23 school or? 24 A I worked in academic research for approximately 25 two years. 4 1 14 Q Where was that? 2 A In Montreal at the Lady Davis Institute for 3 cellular research. Actually I think it's the 4 Lady Davis Institute for aging, but anyways, 5 it's the Lady Davis Institute associated with 6 the Jewish General Hospital. 7 15 Q And prior to that role? 8 A I was in education, studies. 9 16 Q And so you have a university background? 10 A That's correct. 11 17 Q What degree or degrees do you hold? 12 A My formal education is in microbiology and 13 immunology, and then I have sort of a partial 14 post-graduate education towards public health, 15 immunology. 16 18 Q And you say partial post-graduate. Is that part 17 of the way through a master's degree -- 18 A Course work towards -- 19 19 Q -- part of the way through a PhD? 20 A Course work towards and research towards. 21 20 Q And have you -- are you in the process of 22 completing that -- 23 A No. 24 21 Q -- or is that something that you've moved on in 25 the working world? 5 1 A Moved on, yeah. I'm sort of -- once I 2 determined that I liked working in policy, I 3 decided that I didn't really want to do research 4 anymore, so ... 5 22 Q Fair enough. I know that feeling quite well as 6 a matter of fact. 7 A M'mm-hmm. 8 23 Q What does, generally speaking, the Policy and 9 Regulatory Affairs division do? What is its 10 term of reference? 11 A The division is responsible for providing policy 12 support to the Office of Controlled Substances, 13 so -- which is a larger organization. It has a 14 number of operational divisions that are 15 involved in the administration of the Controlled 16 Drugs and Substances Act and its regulations, 17 particularly the regulations that, for instance, 18 set out the licensing and permitting schemes 19 involved in transacting in controlled drugs and 20 substances. 21 So in the form of policy support, we would 22 be provided with, you know, whether it's 23 inquiries from stakeholders, or we would examine 24 issues at the request of the minister, senior 25 management, anything, and all of the above. 6 1 24 Q You mentioned a focus in regulations around 2 controlled substances. Do you have some 3 familiarity with the Narcotic Control 4 Regulations then? 5 A Yes. 6 25 Q And the marihuana -- 7 A I'm required to know and understand all of the 8 regulations under the CDSA. 9 26 Q And so you have familiarity with the Marihuana 10 Medical Access Regulations as well? 11 A M'mm-hmm. Sorry, yes. 12 27 Q Yes, that's right. I should have given the 13 standard please answer yes or no caution, but 14 I'm sure you already know that. 15 Part of your duties then involve the review 16 of requests made to the minister pursuant to 17 section 56 of the Controlled Drugs and 18 Substances Act? 19 A Certain of those requests, yes. 20 28 Q Some requests wouldn't come across your desk? 21 A That's correct. 22 29 Q What's the -- how is that decided? What's the 23 breakdown? 24 A There are different types of exemption requests. 25 Requests for scientific purposes would generally 7 1 be directed to another division within the 2 Office of the Controlled Substances. Requests 3 for public interest purposes may be directed to 4 my office. 5 30 Q And would some public interest requests not be 6 directed to your office? 7 A That's correct. 8 31 Q I'm interested in understanding what the 9 division is there. Which public interest 10 requests would cross your desk and which would 11 go elsewhere? 12 A I think I would -- I would say the types of 13 requests that generally come to my office are 14 the ones that require perhaps a broader policy 15 assessment as opposed to a more functional 16 assessment of content and then process it. 17 32 Q So it's sort of a policy practicality split, in 18 a manner of putting it? 19 MS. SOKHANSANJ: I think she answered the question. 20 MR. TOUSAW: Yeah, I'm just trying to understand the 21 answer. 22 33 Q You say general broader policy implications as 23 opposed to more specific. Would that be -- 24 MS. SOKHANSANJ: Her answer was the requests require 25 that -- perhaps a broader policy assessment. 8 1 MR. TOUSAW: Yes, thank you. 2 34 Q And what do you mean by that? 3 A I think a situation that requires a detailed 4 analysis of any kind of consideration that goes 5 beyond straight interpretation of the 6 regulation, say, for instance, or, like I said, 7 operational considerations. 8 35 Q Have you, in your work with Health Canada, 9 either in your current position or any of your 10 previous positions, had any involvement with 11 requests under section 56 related to the medical 12 use of cannabis? 13 A No. 14 36 Q Are you aware that such requests have in the 15 past been made and granted by the minister? 16 A Yes. The ... 17 37 Q And what is your knowledge of that process? 18 MS. SOKHANSANJ: Mr. Tousaw, I'm curious as to the 19 relevance of these questions to the judicial 20 review. 21 MR. TOUSAW: Well, I know that you know that 22 relevance isn't a proper objection, but -- 23 MS. SOKHANSANJ: Relevance absolutely is a proper 24 objection in the context of cross-examination on 25 an affidavit in a judicial review. 9 1 MR. TOUSAW: And the relevance is of course that the 2 minister has granted exemptions for cannabis 3 under section 56 in the past, and Mr. Bennett 4 has requested a section 56 exemption for 5 cannabis. 6 MS. SOKHANSANJ: I don't see that being relevant to 7 the review of this decision with respect to 8 Mr. Bennett's section 56 exemption request. As 9 far as I can tell, none of the issues engage a 10 medical purpose in Mr. Bennett's request. If 11 you can explain to me something that ties it to 12 the judicial review, I might reconsider, but so 13 far you haven't. 14 MR. TOUSAW: It's tied to the judicial review because 15 the minister goes through a process, and in her 16 affidavit she discussed some of the 17 considerations made in coming to a decision of 18 whether or not to grant an exemption. Some of 19 those -- 20 MS. SOKHANSANJ: And you're welcome to ask about 21 those discussions in her affidavit. 22 MR. TOUSAW: Yes. And some of those considerations 23 include issues related to the perceived or 24 actual harms associated with the ingestion of 25 cannabis. 10 1 MS. SOKHANSANJ: You're welcome to ask about those 2 considerations. 3 MR. TOUSAW: Thank you. And I will. 4 MS. SOKHANSANJ: What your question was, was about 5 requests for exemptions for medical purposes. 6 That seems to me to be outside the aegis of 7 cross-examination on this affidavit. 8 MR. TOUSAW: Well, I disagree with you, and I'm 9 wondering if you're directing your witness not 10 to answer this question. 11 MS. SOKHANSANJ: I'm objecting to the question. I'm 12 advising her not to answer. 13 MR. TOUSAW: Okay. I'm going to suggest that we'll 14 make a lot more progress and we won't have to 15 revisit these issues subsequent to a ruling by 16 the court if we're permitted to pursue these 17 lines of questions. 18 MS. SOKHANSANJ: Well, thanks for your suggestion. 19 Please move on. 20 MR. TOUSAW: 21 38 Q Do you have any involvement with a section 56 22 request related to the safe injection site in 23 Vancouver known as InSite? 24 MS. SOKHANSANJ: Again, I'm going to object to the 25 question. I just don't see how other requests 11 1 for other exemptions are relevant to this 2 request which is the subject matter of this 3 judicial review. 4 MR. TOUSAW: Well, you're aware that one of the 5 issues raised in Mr. Bennett's application is 6 that the denial of his request infringes his 7 rights under section 15 of the charter; correct? 8 MS. SOKHANSANJ: Yes. 9 MR. TOUSAW: And section 15 of the charter is an 10 equality guarantee that relates to differential 11 treatment. 12 MS. SOKHANSANJ: M'mm-hmm. 13 MR. TOUSAW: And these questions are precisely 14 relevant to differential treatment of requests 15 on the basis of those requests, and I'm trying 16 to -- 17 MS. SOKHANSANJ: These may be matters you wish to 18 raise in argument. This is Ms. Kula's 19 affidavit. According to the Federal Court of 20 Appeal, the scope of cross-examination on an 21 affidavit is restricted to items in the 22 affidavit and arising from the affidavit that go 23 to the judicial review. 24 I'm just not clear where you're coming from 25 in terms of tying it to the affidavit. 12 1 I understand your argument about your 2 section 15 claims or Mr. Bennett's 3 section 15 claims. I'm just not sure how this 4 relates back to the judicial review as -- sorry, 5 to Ms. Kula's affidavit in this judicial review. 6 MR. TOUSAW: Well, I can't really do much about your 7 confusion, I'm sorry about that, but it's quite 8 clear from her affidavit that she engages with a 9 number of issues related to the process under 10 which exemptions are reviewed and granted and 11 the considerations that are taken into account 12 by her department and the minister in coming to 13 those conclusions. 14 The existence of other section 56 requests 15 of a similar nature is relevant to those 16 considerations. 17 MS. SOKHANSANJ: And I agree with that, but I don't 18 see the requests about which you're asking, one 19 of which is requests vis-a-vis medical purposes 20 and the other which is a request for -- sorry, 21 what was it? 22 MR. TOUSAW: InSite. 23 MS. SOKHANSANJ: InSite. What is that? 24 MR. TOUSAW: It's a safe injection site in Vancouver. 25 MS. SOKHANSANJ: So is that medical purposes? 13 1 MR. TOUSAW: It's a scientific purpose actually. 2 MS. SOKHANSANJ: For a scientific purpose. 3 MR. TOUSAW: This request was granted under 4 section 56. 5 MS. SOKHANSANJ: It relates to a judicial review of a 6 decision vis-a-vis an exemption based on public 7 interest purposes. 8 MR. TOUSAW: It relates to this witness's knowledge 9 of the criteria used to make decisions on 10 section 56 requests. 11 MS. SOKHANSANJ: Well, you're free to ask her about 12 that. 13 MR. TOUSAW: And I think I did. 14 MS. SOKHANSANJ: Well, I don't think that was what 15 you were asking, but maybe you want to rephrase. 16 MR. TOUSAW: 17 39 Q Are you aware of any criteria that were used to 18 make a decision on section 56 requests for 19 medicinal cannabis? 20 MS. SOKHANSANJ: Again, we're back to medicinal 21 cannabis. This is a public interest request. 22 MR. TOUSAW: Are you directing your witness not to 23 answer? 24 MS. SOKHANSANJ: I'm objecting to questions about 25 requests that are not the kind of requests 14 1 that's the subject matter of the judicial 2 review. 3 MR. TOUSAW: Are you directing your witness not to 4 answer the question? 5 MS. SOKHANSANJ: I'm objecting to the question and 6 advising her not to answer. 7 MR. TOUSAW: Okay. 8 MS. SOKHANSANJ: Can we just move on. 9 MR. TOUSAW: I'm trying -- 10 MS. SOKHANSANJ: Maybe this is something we can 11 discuss during a break. 12 MR. TOUSAW: I'm trying quite hard to move on. 13 MS. SOKHANSANJ: I think we are at cross purposes. 14 MR. TOUSAW: Well, my purpose is to get information, 15 and if your purpose is to prevent it, then we 16 are at cross purposes. 17 40 Q Are you aware of any criteria used by the 18 minister to determine section 56 requests 19 related to cannabis? 20 A In the context of this request, yes. 21 41 Q Are you aware of any criteria used by the 22 minister to determine section 56 requests 23 related to cannabis? 24 MS. SOKHANSANJ: Sorry, I thought she just answered 25 that question. 15 1 MR. TOUSAW: No, she rephrased the question and 2 answered a different question. 3 THE WITNESS: Well, I indicated that I -- that 4 certain criteria were and considerations were 5 applied in the assessment and in my 6 recommendation on this particular request, which 7 has to do with cannabis. I'm sorry if I didn't 8 understand what your question was. 9 MR. TOUSAW: Okay. Thank you. I'll rephrase it. 10 42 Q Are you aware of any criteria, written or 11 unwritten, that are used to process section 56 12 requests related to cannabis, just to cannabis? 13 A Well, I think it's important to start with the 14 fact that every section 56 request is handled 15 independently, so they're all assessed on a 16 case-by-case basis. 17 I personally cannot speak to any section 56 18 exemptions that may have been issued for medical 19 purposes in the context of cannabis because the 20 process of issuing those exemptions was 21 supplanted by the Marihuana Medical Access 22 Regulations in 2001, and I only started in my 23 position in November 2006. 24 43 Q Okay. Thank you. How many, if you know, 25 section 56 requests does the minister receive on 16 1 an annual basis? 2 A I really could not possibly conjecture. It 3 would be a significant number for scientific 4 purposes alone. 5 44 Q Perhaps we'll whittle it down to just those that 6 have crossed your desk. 7 A In the time that I've been in my position I have 8 been involved in consideration of -- wow, I 9 don't even -- I'm trying to think -- somewhere 10 between 10, maybe 15. I -- really, it's -- I 11 would have to make a list and go through it. I 12 mean -- 13 45 Q That's fair. I was just looking for a ballpark 14 number. 15 A Okay. 16 46 Q Somewhere between 10 and 15? 17 A M'mm-hmm. 18 47 Q Since 2006? 19 A M'mm-hmm. 20 48 Q And would those requests that cross your desk 21 then fit into that broader category of sort of 22 policy related analysis that you say that you do 23 as part of your role with Health Canada? 24 A Some of them would be. Sometimes we're involved 25 in more of a consultative role, so perhaps 17 1 playing a challenge function, if you will, to 2 the work that's been done by another division or 3 another group within the office. 4 49 Q Taking a look at someone else's assessment and 5 providing your input into it? 6 A That's correct, or perhaps offering an opinion 7 on the interpretation of the regulations, 8 et cetera. 9 50 Q Now, you mentioned a moment ago that you would 10 have to create a list in order to be sure of the 11 number that crossed your desk since 2006. 12 Is there in existence at Health Canada a 13 list of section 56 requests that have been 14 requested and either granted or rejected? 15 A I'm thinking. I mean, obviously the divisions 16 that are responsible for section 56 requests 17 would have most likely some form of tracking or 18 some way of -- whether it's through individual 19 request files that are kept in our records or it 20 could be a centralized list. There would 21 probably be some kind of list. Does the 22 department as a whole have a list that is 23 readily accessible? No. 24 51 Q Okay. Thank you. Are there any specific 25 criteria used, written policy, guidelines, 18 1 anything of that nature, to guide the exercise 2 of the minister's discretion in this area? 3 A There is depending on the type of exemption. 4 So, for instance, for scientific exemptions, 5 which are, as I mentioned, more common, there is 6 a form that is available to people who are 7 requesting that type of exemption, and there is 8 a guideline or guidance document that is still 9 in draft form but is used by the office -- it is 10 in development process right now -- that is used 11 by the office, and it's meant to be a guidance 12 document for stakeholders to help them make 13 their requests, but because it has not been 14 released as a final document, it is used 15 internally in order to help the processing of 16 those requests. 17 52 Q And is that specific to scientific requests? 18 A That's correct. 19 53 Q Is there in existence a similar type of document 20 related to requests made in the public interest? 21 A No. 22 54 Q Is there any type of document related to 23 requests made for religious purposes, such as 24 Mr. Bennett's request? 25 A No. 19 1 55 Q In the chain of command in Health Canada, who do 2 you report to? 3 A I report to the director of the Office of 4 Controlled Substances. 5 56 Q Is that Ms. Sabiston? 6 A No. The current director of the Office of 7 Controlled Substances is Diane Allan. 8 Ms. Sabiston is the director general of the 9 Controlled Substances and Tobacco Directorate. 10 It's the larger organization we sit within. 11 57 Q Further up the chain of command? 12 A That's correct. 13 58 Q Thank you. 14 A moment ago we discussed your academic 15 background. Do you have any background in 16 religious study or scholarship? 17 A No. 18 59 Q Pharmacology? 19 A I have taken pharmacology classes through both 20 my undergraduate degree but also -- not even 21 post-graduate. Sorry, professional development 22 purposes in the course of my work in the public 23 service. 24 60 Q And around what time frame would those classes 25 have been? 20 1 A I would say probably '99, 2000, something like 2 that, when I was working more actively in drug 3 regulation specifically. Obviously in my 4 position, considering that we deal with 5 substances, I obviously read literature on, you 6 know, current scientific, you know, pieces of 7 interest to do with controlled substances, but 8 it's not formal educational training per se. 9 It's more on the job. 10 61 Q Would any of these publications that you've read 11 on the job or any of the classes you take be 12 specific to cannabis and its potential risks and 13 harms? 14 A There would definitely have been articles that I 15 have read about cannabis, and there have also 16 been reports that I've read about cannabis, but 17 none of the training I've taken has been 18 specific to cannabis. 19 I did take a drug therapeutic course in 20 a -- I think it was a course on addictions and 21 drug therapies course that had a module on 22 cannabis at some point in time. 23 62 Q Can you pinpoint that time frame at 3, 5, 10 24 years ago? 25 A The addictions course was in my undergraduate 21 1 education. The -- what other -- what else did I 2 mention? I'm sorry, I don't -- 3 63 Q It was a drug and therapy course that had a 4 module on cannabis? 5 A Right, so that was a post-graduate level course. 6 64 Q Somewhere in the neighbourhood of 15 years ago 7 or so? 8 A 12 probably, something like that. 9 65 Q Do you have a background in psychopharmacology? 10 A No. 11 66 Q And you do have a background in biochemistry? 12 A No. My degree is in immunology. 13 67 Q Immunology. 14 A Microbiology. 15 68 Q Microbiology. 16 A So strong focus on public health. I have 17 obviously taken chemistry courses, biochemistry 18 courses, but they were not the function of my -- 19 the focus of my degree. 20 69 Q Thank you. 21 I'm interested in -- and I'll you ask a 22 general question first, and then perhaps we'll 23 whittle it down a bit, but what is the general 24 process that occurs within Health Canada when a 25 section 56 request is received? 22 1 A So usually the -- it sort of depends. I mean, I 2 guess if the request -- usually the requests are 3 directed to the minister. 4 70 Q Yes. 5 A So the minister's office receives the request. 6 The request is directed to the directorate via 7 the branch, so the sort of administrative 8 processing, if you will, takes place. 9 There usually arrives -- if it's determined 10 that the Office of Controlled Substances is 11 going to be responsible for assessing the 12 request, then my director, in consultation with 13 her staff and her office, will make a decision 14 as to which division it should be directed to. 15 Once it arrives in my office, we usually 16 review the request, make a determination as to 17 who or which officers/officer, analyst/analysts 18 in my division will undertake the preliminary 19 review and assessment, and then I will -- 20 sometimes I will meet with the staff involved 21 and we'll have a discussion about the request. 22 Sometimes I may just pass them the file and say, 23 arrange a meeting if you want to discuss it at 24 some point. We may talk about time lines, 25 et cetera, and then basically they will 23 1 undertake a review. 2 At some point we will discuss that review. 3 We may involve others in the office in 4 discussion. We may undertake research. We may 5 request relevant legal opinions. We may consult 6 or brief senior management, and then ultimately 7 we will build a recommendation for the 8 consideration and review and approval of the 9 director of the office. 10 In some instances the director of the 11 office will wish to seek concurrence from the 12 director general or even other senior management 13 in the department, in which case the file may 14 move up the chain, if you will, and be assessed 15 further, be discussed further. 16 71 Q Okay. Thank you. 17 As this process unfolds that you've just 18 described from intake through decision, is there 19 a set of documents that are created, an intake 20 form, things of that nature? 21 A Well, we always start a hard copy file. 22 That's -- the Government of Canada records 23 management policy requires us to maintain 24 records and paper, so we have a file obviously 25 that starts with the initial request in whatever 24 1 form that takes, and obviously requests vary -- 2 72 Q Yes. 3 A -- from one person -- requester to requester. 4 The file will be added to by other 5 documents that may be accessed or reviewed in 6 the context of the assessment process. 7 There may be briefing documents that are 8 prepared for senior management. There may be 9 legal opinions. There may be communications 10 with other offices like e-mails, et cetera, 11 arranging meetings, talking about the issue. 12 There may be e-mails between I and my staff, 13 draft documents, that kind of thing. 14 73 Q I'm familiar with something called a RIAS, a 15 regulatory impact analysis statement, that tends 16 to accompany the promulgation of regulations 17 under the CDSA. Is there a generation of a 18 similar issue analysis statement related to 19 section 56 requests when they're received by 20 your office? 21 A There may be. 22 74 Q There's no requirement that such be generated? 23 A No. 24 75 Q Do you know if such a document was generated in 25 the case of Mr. Bennett's request? 25 1 A No. I mean, sorry, yes, I do know, and the 2 answer was no. 3 76 Q Thank you for correcting that. Bad question. 4 So no such document created? 5 A Right. 6 77 Q You include in your affidavit a prior request 7 made by -- and this is at tab B, I believe, of 8 Exhibit 1. 9 A M'mm-hmm. 10 MS. SOKHANSANJ: Exhibit B. 11 MR. TOUSAW: Exhibit B. 12 78 Q It's tab B of your affidavit, which is marked as 13 Exhibit 1, a letter dated November 29, 2006, to 14 the then minister Tony Clement from a Reverend 15 Tucker, I believe. It doesn't actually seem to 16 be signed. 17 In the documents you provided to me the 18 name has been redacted, so we'll leave that off, 19 but was an issue analysis statement generated in 20 connection with that request? 21 A No. 22 79 Q To your knowledge, has any such issue analysis 23 statement or briefing note been generated in 24 relation to requests made for exemptions for 25 cannabis for religious purposes? 26 1 MS. SOKHANSANJ: Mr. Tousaw, are you asking about 2 other decisions? 3 MR. TOUSAW: Yes, and I'm asking whether any issue 4 analysis statement or briefing memorandum was 5 generated in relation to any section 56 request 6 for religious purposes or cannabis religious 7 purposes. 8 MS. SOKHANSANJ: And how does this relate to the 9 ground of a judicial review? I'm not objecting 10 yet. I'm just ... 11 MR. TOUSAW: Okay. The judicial review is about a 12 decision made on a request for section 56 13 exemption for cannabis for religious purposes. 14 MS. SOKHANSANJ: Right. 15 MR. TOUSAW: If the ministry has documents that guide 16 that process or analyze that decision, I'm 17 interested in whether they exist. 18 MS. SOKHANSANJ: Right. So your question is about a 19 document that provides some guidance with 20 respect to the general criteria to be applied? 21 MR. TOUSAW: I can ask that question. That really 22 wasn't my specific question. 23 MS. SOKHANSANJ: I'm just concerned about questions 24 that start to veer into other applications 25 involving other individuals who aren't here 27 1 today, maybe have some privacy interests as 2 well. 3 MR. TOUSAW: I don't need -- 4 MS. SOKHANSANJ: So if you're interested in general 5 policy matters, I don't think that's 6 objectionable, but I'm a little bit concerned as 7 we start get to the specifics of other 8 applications, and I'm sure you can understand 9 why. I think they start to veer into the 10 irrelevant, and then I have the privacy concerns 11 as well. 12 MR. TOUSAW: Well, I certainly disagree about the 13 relevance -- 14 MS. SOKHANSANJ: Well, I know that, but you can -- 15 MR. TOUSAW: -- since they're specific to the exact 16 topic for discussion, but I'm not asking for the 17 names of people that have made section 56 18 requests. 19 MS. SOKHANSANJ: Or the specifics of their request? 20 MR. TOUSAW: Well, I mean, I have the specifics of 21 their request. It's been produced as part of 22 her affidavit. 23 MS. SOKHANSANJ: Right. And -- 24 MR. TOUSAW: So I'm not sure you have an objection 25 there. 28 1 MS. SOKHANSANJ: No, and there she said there was no 2 such document. 3 MR. TOUSAW: Yes. 4 MS. SOKHANSANJ: You're asking about other requests 5 at this point that are not part of her 6 affidavit. That's where my relevance concerns 7 arise. 8 MR. TOUSAW: 9 80 Q Are you aware of the existence of any other 10 requests made to the minister for a section 56 11 request for cannabis for religious purposes or 12 spiritual purposes? 13 MS. SOKHANSANJ: Other than? 14 MR. TOUSAW: 15 81 Q Other than Mr. Bennett's and the one that is at 16 Exhibit B to your affidavit? 17 A No. 18 82 Q Okay. And so then circling back to my question 19 about whether an issue analysis statement or 20 guidance document had been generated in relation 21 to any request under section 56 for an exemption 22 for cannabis for religious purposes, I take it 23 that your answer would be no since it was no in 24 Mr. Bennett's case and in the only other case 25 you're aware of; correct? 29 1 A That's correct. 2 83 Q Okay. Thank you. 3 A These requests are very few and far between. 4 84 Q The cannabis requests? 5 A That's correct. 6 85 Q Okay. To your knowledge, there's only been two 7 ever? 8 A For cannabis, that's correct. 9 86 Q And as part of your review of Mr. Bennett's 10 request, would you have asked the question of 11 others within Health Canada have there been any 12 other similar requests made vis-a-vis cannabis 13 for religious purposes? 14 A We would have that history on our files within 15 the office. I mean that is -- the way 16 government works is the information doesn't stay 17 with the individual who works on it. 18 87 Q Yes. 19 A The individual -- the information stays in the 20 corporate records of the office. 21 88 Q Yes. 22 A So at the time when we received the -- I won't 23 say -- the other application request that is 24 mentioned in my affidavit, we would have done a 25 record search to identify if there had been 30 1 other similar requests. 2 89 Q And the results of that search were negative? 3 A Were negative. 4 90 Q And similarly when Mr. Bennett makes his 5 request, you conduct the same record search? 6 A That's correct. 7 91 Q And what comes up is what appears at Exhibit B 8 to your affidavit? 9 A That's correct. 10 92 Q Okay. Thank you. 11 You mentioned the record keeping within 12 your department. How are those documents 13 stored? Is it a database, physical files? How 14 does it work? 15 A Hard copy files. 16 MS. SOKHANSANJ: Sorry, I was going to say which 17 documents. 18 MR. TOUSAW: 19 93 Q Well, you go somewhere to look for a history of 20 section 56 requests for cannabis for religious 21 purposes? 22 A M'mm-hmm. 23 94 Q Do you go to a computer? Do you go to a 24 physical file? 25 A I would actually go to our records management 31 1 office, our records office, and they would do a 2 search for me, and that would be through using 3 database-type tools, but they would be looking 4 through hard copy files, in accordance with 5 Government of Canada records management policy. 6 95 Q Okay. And you made that request of the records 7 management office when you received 8 Mr. Bennett's request? 9 A Actually in this instance, no, because those 10 types of files I was aware were already in our 11 office, like physically located with us on site 12 as opposed to being in our records office for 13 the department -- not for the department, for 14 the building. 15 96 Q So you knew where they were already? 16 A Yes. 17 97 Q Okay. And in those records and those documents 18 there would appear, would there not, any 19 guidance documents, including interim guidance 20 documents, that may or may not have been created 21 to guide the process when it comes to section 56 22 requests for religious purposes? 23 A Well, I think I've already answered the question 24 that no such guidance documents exist, so ... 25 98 Q And if they existed, you would expect them to be 32 1 kept in the records management office and you 2 would be able to find them? 3 A They may be. I mean procedural documents -- 4 like it sort of depends. I mean, in our office 5 because we deal with policy issues as opposed to 6 companies individually, you know, getting a 7 licence, say, for instance, or like I'm thinking 8 of other types of file streams that other parts 9 of the office would keep, our files aren't 10 necessarily organized in the same way, so I 11 mean, you know, the file would likely be by the 12 requester or -- 13 99 Q Yes. 14 A -- it may be -- and then tagged with the name of 15 the substance so that they would also be able to 16 search on that. It may or may not include other 17 documents. 18 100 Q You mentioned when taking me through the general 19 process that occurs for a section 56 request 20 that lands on your door -- sorry, I would have 21 given you that if I had known. 22 MS. SOKHANSANJ: No. 23 MR. TOUSAW: 24 101 Q -- that occasionally research would be 25 conducted. To your knowledge, was any of that 33 1 type of research conducted in response to 2 Mr. Bennett's request? 3 A When I assigned the file to Cheryl Tremblay, who 4 is the analyst in my office, and I can refer 5 you -- actually it's in my affidavit. Let me 6 just find the right part. I think it's 7 paragraph 21. Whoops. Just lowered my chair. 8 MS. SOKHANSANJ: Sorry. 9 THE WITNESS: No, it was me. I did it on my own. 10 A -- it says: 11 "I assigned the request to Cheryl 12 Tremblay, a junior policy analyst in my 13 division. I asked her to carry out an 14 initial review of the Bennett request. I 15 asked her to focus on Mr. Bennett's 16 claimed right to religious freedom, the 17 manner, if any, in which it was being 18 compromised by the controls set out in the 19 CDSA and whether the public interest would 20 be served in granting the requested 21 exemption." 22 Inherent in that is, as a policy analyst, her 23 judgment as to what kind of research or what 24 kind of relevant fact finding would be useful in 25 making that determination. 34 1 So I am aware that Ms. Tremblay, you know, 2 looked into some information about Mr. Bennett. 3 When -- in the request there was a mention of 4 the Church of the Universe, so she was -- 5 certainly, you know, looked into our files on 6 that organization. She would also have probably 7 done some research on cannabis and religion, 8 that kind of thing. 9 MR. TOUSAW: 10 102 Q You say she probably would have done research on 11 cannabis and religion. Do you know if she did 12 or did not do that research? 13 A I don't recall, to be really honest with you. 14 The discussions I had with her were not about 15 what exact research did she do. It was more 16 about her findings and how those findings 17 contributed to the recommendation that we were 18 developing. 19 103 Q And did she provide those findings to you in 20 written format? 21 A She would -- she would have referred to notes 22 that she had taken, but our discussions were 23 oral. Verbal discussions, sorry. 24 104 Q Are you able to identify what sources of 25 information Ms. Tremblay consulted in coming to 35 1 her -- in doing her policy review? 2 A Not specifically, no. 3 105 Q Is that information she would have provided to 4 you in the ordinary course of your discussions? 5 A Well, I think I have already answered that 6 question. I said in our discussions she would 7 have reviewed her assessment process. That, to 8 me, would indicate she would talk about her 9 findings in whatever form they were in, from 10 whatever sources they were in. 11 106 Q Do you know if she reviewed any of Mr. Bennett's 12 published material? 13 A I -- as I said, if she -- I know that she did 14 some research into Mr. Bennett. I'm quite sure 15 that she would have come across some of his 16 publicly available information. I'm quite sure 17 she would have read some of it. 18 107 Q Do you know if she read his books, his published 19 books? 20 A I know that she did not read his books. 21 108 Q Did not read his books. 22 It strikes me that the books that he has 23 written about the issue of cannabis and religion 24 would be something that one would want to take 25 into consideration when making this type of 36 1 decision. Is that not the case in your mind? 2 MS. SOKHANSANJ: Just a moment. Go ahead. 3 A We did discuss actually whether or not to 4 attempt to obtain a copy of his books. I know 5 at one point Cheryl did determine that his -- 6 the book Cannabis Green Gold -- I'm sorry, I 7 don't have the exact -- oh, sorry, it's in my 8 affidavit, I think, is it not? Oh, it's here. 9 Yes, that's right. 10 Sorry, it's in his statutory declaration 11 Green Gold, the Tree of Life: Marijuana in 12 Magic & Religion. 13 So we did discuss obtaining a copy of that 14 book, and she did do some searching into it and 15 determined that it was actually going to be more 16 difficult to obtain, and in the end when we were 17 discussing her preliminary recommendation, I 18 asked her whether it was her view that, you 19 know, taking the time to obtain this book and 20 reading it would alter her preliminary 21 recommendation or any of her findings, and she 22 indicated that that was not the case. So we did 23 not proceed to order the book. 24 MR. TOUSAW: 25 109 Q And just so the record is clear, you just read 37 1 from Mr. Bennett's statutory declaration which 2 appears as Exhibit A to your affidavit? 3 A That's correct. 4 110 Q Which is marked as Exhibit 1 in these 5 proceedings? 6 A That's correct. 7 111 Q Thank you. 8 Did you or did Ms. Tremblay attempt to or 9 successfully obtain a copy of Mr. Bennett's 10 other book listed at paragraph 4 of his 11 statutory declaration Sex, Drugs, Violence and 12 the Bible? 13 A No. 14 MS. SOKHANSANJ: I believe it's Exhibit A to 15 Mr. Bennett's affidavit. That's how I managed 16 to get a copy. 17 MR. TOUSAW: It is. 18 112 Q But you have not read that book? 19 A I have subsequently obtained a copy of the Green 20 Gold the Tree of Life: Marijuana in Magic & 21 Religion, a book, and have read excerpts of it. 22 113 Q And -- 23 A I have not looked at the other book. 24 114 Q And did you at any time review the third book 25 that was Exhibit B to his application -- I think 38 1 you have a preliminary copy of it there -- 2 Cannabis and the Soma Solution? 3 MS. SOKHANSANJ: I believe it was Exhibit B to 4 Mr. Bennett's affidavit. 5 MR. TOUSAW: Yes. 6 MS. SOKHANSANJ: Not his application. 7 MR. TOUSAW: Correct. 8 MS. SOKHANSANJ: Right. So it's the affidavit in 9 this proceeding. 10 MR. TOUSAW: Correct. Thank you. 11 A No. When I went to obtain a copy of the Green 12 Gold the Tree of Life book, we did look into 13 obtaining a copy of Cannabis and the Soma 14 Solution, but our library informed us that it 15 was not yet in print and so was not available 16 for us until I believe August or something like 17 that. I can't remember the date that we were 18 told. 19 MR. TOUSAW: 20 115 Q Did you -- 21 A I am aware that extracts of the book are on the 22 web, yes. 23 116 Q And have you read any of those? 24 A Probably. I can't recall specifically. I've 25 done quite a bit of broad research in connection 39 1 to this particular request. 2 117 Q You have? 3 A Yeah. 4 118 Q And what was the nature of that research? 5 A In preparing for my affidavit and subsequently 6 preparing for this examination, I wanted to 7 refresh my memory as to the type of research 8 that Cheryl would have undertaken in her 9 assessment and familiarized myself more with 10 Mr. Bennett's writings -- 11 119 Q In -- 12 A -- and speeches that he's made, that kind of 13 thing. 14 120 Q Thank you. I didn't mean to interrupt you. I 15 apologize for that. 16 A No, that's okay. 17 121 Q In connection with preparing to give this 18 examination today and to swear your affidavit, 19 did you review your file, your Health Canada 20 file, and Mr. Bennett's application? 21 A Absolutely. 22 122 Q And did that file include written analysis 23 provided by Ms. Tremblay related to 24 Mr. Bennett's request? 25 A The file includes, as I mentioned, the initial 40 1 request. There are some exchanges of e-mails 2 between myself and her. There are exchanges of 3 e-mails between ourselves and legal services in 4 the context of a legal opinion that we obtained. 5 There are exchanges between my office and senior 6 management, mostly in relation to time lines in 7 terms of processing the request and when a 8 response to the requester would be provided. 9 That's -- that's what I recall. 10 123 Q When considering the section 56 request, not 11 necessarily this specific request, but when 12 considering a section 56 request, if you or your 13 analyst have questions about the scope of the 14 request, what's being sought, why it's being 15 sought, things like that, do you ever reach out 16 to the applicant and ask those questions? 17 A Can I ask you to be more specific as to the type 18 of section 56 request because my office does 19 assess other types of section 56 requests. 20 124 Q Let's focus specifically on public interest 21 requests. 22 A You know, these requests are rare. They're 23 really handled on a case-by-case basis. It is 24 not our general practice to reach out to the 25 requester to seek clarification or request 41 1 additional information. 2 125 Q There's no policy or guideline that prevents 3 such action, is there? 4 A No. 5 126 Q Have you ever -- in your experience dealing with 6 public interest section 56 requests, are you 7 aware of any times when the applicant had been 8 contacted, interviewed, discussions had 9 regarding the request? 10 MS. SOKHANSANJ: Sorry, what's -- you've asked about 11 several different things -- 12 MR. TOUSAW: Yes. 13 MS. SOKHANSANJ: -- in there. 14 MR. TOUSAW: And I would like to know about each of 15 them. 16 127 Q So are you aware of any conversations that have 17 been had between your office and applicants in 18 connection with section 56 requests on the basis 19 of public interest? 20 A Yes. 21 128 Q And has Health Canada ever initiated those 22 conversations, to your knowledge? 23 A I really don't recall. It's happened very 24 rarely. In fact, I am really thinking of only 25 one instance where that has happened, and it is 42 1 highly possible that the communication was 2 instigated by the requester, but I couldn't 3 confirm that. 4 129 Q In any case, in Mr. Bennett's request, Health 5 Canada didn't attempt to seek any clarification 6 or additional information from Mr. Bennett? 7 A That is correct. 8 130 Q It was quite clear to you in reviewing 9 Mr. Bennett's request that he was seeking a 10 request to produce and possess cannabis for his 11 own personal use; correct? 12 A It's stated right in his request. 13 131 Q Yes. And that was for religious purposes? 14 A That's correct. 15 132 Q And Mr. Bennett identified his daily consumption 16 amount of cannabis; correct? 17 A Yes, I believe in his statutory declaration. 18 133 Q Yes. Paragraph 22H. 19 A That's correct. 7 grams. Daily amount of 20 7 grams. 21 134 Q Mr. Bennett makes no mention in his statutory 22 declaration of a desire to traffic in cannabis; 23 correct? 24 A That's correct. 25 135 Q You say at paragraph 20 of your affidavit marked 43 1 as Exhibit 1 in these proceedings that: 2 "The assessment of the Bennett request 3 included a detailed review of the 4 materials Mr. Bennett submitted and a 5 review of related or similar requests as 6 appropriate ..." 7 And I'll just pause there mid sentence. What do 8 you mean when you say "as appropriate"? 9 A Well, I think we would look, first of all, at 10 whether there are other requests for a 11 section 56 exemption for public interest 12 purpose -- in the public interest for religious 13 purposes, and I have already stated that there 14 have been very few of those, but in -- it may 15 also be that we would look to the substance that 16 is the focus of the request, so we may also look 17 at other requests that relate to the same 18 substance. 19 136 Q And you say "may also look at that." In 20 connection with Mr. Bennett's request, did your 21 office look at other section 56 requests related 22 to cannabis? 23 A Yes, and I refer to that in my affidavit in 24 paragraph 23. It says: 25 "I also suggested that, in the interests 44 1 of consistency, Ms. Tremblay review a 2 request and decision made with respect to 3 an earlier similar request for a 4 section 56 exemption for two other parties 5 seeking authorization to produce and 6 possess marihuana for religious purposes." 7 So the similarities were that it was marihuana 8 or cannabis and that it was also for an 9 exemption to produce and possess. 10 137 Q And just so I'm clear, in your response to my 11 question about what "as appropriate" meant, you 12 identified a couple categories of potential 13 requests that you had reviewed, and one of those 14 categories was other section 56 requests in the 15 public interest for religious purposes; correct? 16 A I'm sorry, can you rephrase the question, or 17 could you just repeat the question? 18 138 Q Sure, and I don't know I will be able to repeat 19 it exactly. 20 A Okay. 21 139 Q But you basically identified two categories of 22 similar requests that you would review. The 23 first category was section 56 requests made in 24 the public interest for religious purposes; 25 correct? 45 1 A M'mm-hmm. 2 140 Q That's a yes? 3 A Sorry, yes. 4 141 Q Okay. And the second category is that you may 5 also look to the substance that's the focus of 6 the request; correct? 7 A That's correct. 8 142 Q Okay. So my question to you is, in reviewing 9 Mr. Bennett's request, did your office look to 10 other requests for the same substance other than 11 the one that you've just referred to that is 12 noted at paragraph 23 of your affidavit? 13 A No, because as I've already stated to you, these 14 are the only two requests that the department or 15 the Minister of Health has received for 16 section 56 exemptions in relation to the 17 production and possession of cannabis for 18 religious purposes. 19 143 Q Okay. So I think we're probably talking past 20 each other here. 21 A Okay. 22 144 Q I've identified two categories -- well, you 23 identified two categories of potentially similar 24 requests. One category related to 56 for 25 religious purposes. 46 1 A M'mm-hmm. 2 145 Q And your second category was looking to the 3 substance itself, cannabis, I think, was your 4 statement. 5 So did you, in responding to Mr. Bennett's 6 request, look to other section 56 requests for 7 cannabis, the substance? 8 A No. 9 146 Q Okay. But you are aware that there exist and 10 have been granted exemptions under section 56 11 for cannabis, just the substance? 12 A Yes. 13 147 Q Okay. 14 A They're for medical purposes however. 15 148 Q Correct. But it's the substance that I'm 16 focusing on now. 17 A M'mm-hmm. 18 149 Q Okay. And you did not review those? 19 A Correct. 20 150 Q Okay. I should say if at any point you need a 21 break or want to take some time, just let me 22 know and I'm happy to accommodate that. 23 A Thank you. 24 151 Q My pleasure. The first category you identified 25 was whether other section 56 requests in the 47 1 public interest for religious purposes were 2 made. You said there were very few of those. 3 Are there more, to your knowledge, than that 4 which you produced and referred to at Exhibit B 5 to your affidavit? 6 A There have been four. 7 152 Q Okay. And besides -- does that include 8 Mr. Bennett's? 9 A Yes. 10 153 Q And that includes that which is referred to as 11 Exhibit B to your affidavit? 12 A Correct. 13 154 Q So two others? 14 A There have been two others. 15 155 Q And did either of those relate to cannabis? 16 A No. 17 156 Q Did either of those relate to controlled 18 substances? 19 A Yes. 20 157 Q And what substances did those relate to? 21 MS. SOKHANSANJ: Just a moment. Go ahead. 22 A I'm not -- I guess I have a -- the question for 23 you is I didn't understand the question about 24 controlled substances. 25 MR. TOUSAW: 48 1 158 Q Well, which controlled substances -- 2 A It seems obvious to me that they -- 3 159 Q Yes, of course. 4 A -- would pertain to controlled substances given 5 the function of my office. 6 160 Q Of course. 7 A Okay. 8 161 Q What substances did the other two requests 9 relate to? 10 A Okay, khat and Daime tea or ayahuasca, it's 11 sometimes referred to. 12 162 Q Khat is a Somalian plant used in Somalian 13 cultural rituals? 14 A That's correct. It's not exclusively grown in 15 Somalia, but East Africa, yes. 16 163 Q And ayahuasca is related to certain Brazilian 17 syncretic religions? 18 A The Santo Daime church, yes. 19 164 Q And Unaio do Vegetal? 20 A Yeah. Sorry, that was a yes. 21 165 Q Yes. Thank you. 22 And what were the results of those 23 requests? 24 MS. SOKHANSANJ: Just a moment. So, Mr. Tousaw, 25 we're now again in the realm of what I think is 49 1 the potentially irrelevant. These are requests 2 that weren't considered in the context of 3 Mr. Bennett's application. They're requests 4 that don't relate to cannabis. I'm just not 5 sure how they're relevant at all, and I don't 6 think they are relevant, unless you can satisfy 7 me otherwise. 8 MR. TOUSAW: They're requests for exemptions under 9 section 56 for religious purposes for substances 10 that are controlled under the CDSA. 11 As you know, Mr. Bennett has made a claim 12 under section 15 of the charter on the basis of 13 discrimination because of his religion. If the 14 minister has considered other religious requests 15 and either approved or rejected them, it's 16 clearly relevant to whether or not Mr. Bennett 17 has been treated in a discriminatory fashion 18 vis-a-vis other religious groups or individuals. 19 MS. SOKHANSANJ: Well, all right. I agree that the 20 outcome of the request, whether it's been 21 approved, is relevant, but I don't see how the 22 specifics and beyond that could be relevant. 23 And I have to say, as to the outcome, I 24 think it's marginal, but I don't want to have a 25 big dispute about it and would rather the 50 1 question just get answered. 2 I guess I can maintain my objection under 3 95 even if the question is answered, so we will 4 proceed with answering the question. I'll 5 maintain my relevance objection, but beyond that 6 I'm going to advise my client not to answer 7 further. 8 A So in terms of the request for -- 9 MS. SOKHANSANJ: Well, let Mr. Tousaw ask a question. 10 THE WITNESS: Oh, sorry. 11 MR. TOUSAW: 12 166 Q Well, my question was -- let's focus on the khat 13 request. Was that a request for religious use? 14 A It was a request for public interest purposes. 15 It was -- I believe the terminology that was 16 used in that request was ceremonial purposes, 17 but there was reference to religious services in 18 that. 19 167 Q And was that request granted or rejected or 20 something else? 21 A The request was denied. 22 168 Q And you mentioned the other request had to do 23 with Daime tea/ayahuasca. What was the outcome 24 of that request? 25 A A decision in that request is still pending. 51 1 MS. SOKHANSANJ: So just to be clear, I objected to 2 the question immediately preceding our prior 3 discussion and the questions following but 4 agreed that the questions will be answered under 5 95 of the rules and we can pursue the objection 6 later and they may struck from the record at a 7 later date. 8 MR. TOUSAW: I heard that objection, and I think the 9 record accurately reflects what you said. 10 I should say that I think your relevance 11 objection in this area is, quite frankly, in bad 12 faith. I think it's so clearly relevant to be 13 beyond dispute, but you're, of course, entitled 14 to direct your witness not to answer questions, 15 and if there have to be remedies sought there 16 will be. I'd just hate to have to have you come 17 all the way back here again to answer these 18 questions. 19 And so I'm clear, you're going to direct 20 your witness not to answer any further questions 21 related to khat and requests associated with 22 khat or Daime tea, ayahuasca and requests 23 associated with ayahuasca? 24 MS. SOKHANSANJ: Yes, I am, and in particular I note 25 that the basis for your relevance argument was 52 1 under section 15 and discriminatory treatment, 2 and I noted from my client's answers that none 3 of those exemption requests were granted, so I 4 think they're increasingly in the realm of the 5 irrelevant at this point. 6 MR. TOUSAW: And I will be clear. I don't think 7 that's the only relevant basis. 8 MS. SOKHANSANJ: Well, that's the one you raised. 9 MR. TOUSAW: That's the one I've articulated to this 10 point. 11 MS. SOKHANSANJ: M'mm-hmm. 12 MR. TOUSAW: I take it then you're going to direct 13 your witness not to answer -- well, let me just 14 ask. 15 169 Q What criteria were used in the making of 16 decisions on the khat and ayahuasca requests, if 17 any? 18 MS. SOKHANSANJ: Well, I'm going to ask her not to 19 answer those questions. 20 In addition to the other objections that 21 I've made, she has also already answered and 22 said that each case is determined on a 23 case-by-case basis and there are no guidelines 24 in place. 25 MR. TOUSAW: 53 1 170 Q Is there a decision expected in the ayahuasca 2 matter? 3 MS. SOKHANSANJ: I'm going to object to that question 4 as well. 5 MR. TOUSAW: 6 171 Q Did you have personal involvement in the 7 ayahuasca request? 8 MS. SOKHANSANJ: I'm going to object to that question 9 as well. 10 MR. TOUSAW: 11 172 Q In this matter you -- 12 MS. SOKHANSANJ: Do you mean in Mr. Bennett's 13 request? 14 MR. TOUSAW: 15 173 Q In Mr. Bennett's request you were requested to 16 produce certain documents pursuant to Rule 318 17 and executed a certificate under Rule 318; is 18 that correct? 19 A That is correct. 20 174 Q I will just -- 21 MS. SOKHANSANJ: Why don't we mark that one up too. 22 MR. TOUSAW: This can be marked. 23 MS. SOKHANSANJ: Is there an attachment to it as 24 well? 25 MR. TOUSAW: It's the certificate and the documents 54 1 that were produced pursuant to that certificate. 2 MS. SOKHANSANJ: Are you going to be asking questions 3 about both, in which case we should probably 4 exhibit it as a package, otherwise ... 5 MR. TOUSAW: It is as a package, and I think we 6 should exhibit it as a package. 7 MS. SOKHANSANJ: All right. Let's do that. 8 MR. TOUSAW: This is the sum total of what was 9 produced to me. 10 MS. SOKHANSANJ: Well, we'll let the reporter mark 11 one, perhaps. 12 EXHIBIT 2: Document entitled "Certificate Rule 13 318" 14 MR. TOUSAW: 15 175 Q I will give you the one that's been marked as 16 Exhibit 2. I will ask you just to have a look 17 at it and let me know if you recognize that 18 document. 19 A Yes, I recognize it. 20 176 Q And that's your signature on page 2? 21 A That is correct. 22 177 Q I'll ask if you recall the specific requests 23 that were made by me on behalf of Mr. Bennett 24 for documents? Do you recall what those were? 25 MS. SOKHANSANJ: Sorry, what are you referring to? 55 1 MR. TOUSAW: In connection with Rule 318. In 2 Mr. Bennett's application he requests certified 3 copies of certain documents. 4 MS. SOKHANSANJ: I have the notice of application 5 here. 6 MR. TOUSAW: You have the notice. That would be very 7 useful. I do as well, but let's use your copy. 8 MS. SOKHANSANJ: All right. So I want to be sure 9 we're all talking about the same thing and on 10 the same page. 11 MR. TOUSAW: It's at page 5. 12 MS. SOKHANSANJ: So are you at page 5? 13 MR. TOUSAW: I am. 14 MS. SOKHANSANJ: All right. I regret asking you to 15 do something else so soon, but if you could mark 16 that one as an exhibit as well then. If we're 17 going to talk about the piece of paper, I would 18 like to have it marked. 19 MR. TOUSAW: I think that makes sense. 20 EXHIBIT 3: Document entitled "Notice of 21 Application" 22 MR. TOUSAW: 23 178 Q I will ask you to turn to page 5 of Exhibit 3. 24 There are three numbers just above the signature 25 block that set out the categories of documents 56 1 being sought by Mr. Bennett. Do you see that? 2 A M'mm-hmm. Yes. Sorry. 3 179 Q And category 1 is: 4 "Documents outlining criteria used by the 5 Minister of Health or her delegate in 6 deciding applications for exemptions 7 pursuant to section 56 of the Controlled 8 Drugs and Substances Act." 9 Correct? 10 A That is correct. 11 180 Q And we've already covered in previous questions 12 portions of this issue, and you have identified 13 that such criteria exist in the area of 14 scientific requests; correct? 15 A That is correct. 16 181 Q And I didn't ask, but I will ask now. Do such 17 criteria exist in the category of requests for 18 medical exemptions? 19 A I could not confirm. I believe that there is a 20 document that is used by another part of the 21 office in -- sort of more like a process 22 document that's used in deciding on medical 23 purposes exemptions with respect to physicians 24 requesting the authorization to prescribe 25 methadone as required under the Narcotic Control 57 1 Regulations. That's the only document that 2 pertains to medical purposes exemptions that I'm 3 aware of. 4 182 Q And just to finish off the three categories that 5 appear in section 56, are you aware of any 6 documents outlining criteria used for public 7 interest exemptions? 8 MS. SOKHANSANJ: She has already answered that 9 question. 10 MR. TOUSAW: 11 183 Q And the answer was no? 12 A That's correct. 13 184 Q Okay. And more specifically, and perhaps you 14 have already answered this, any guidance 15 documents related to section 56 exemptions for 16 religious purposes, your answer is no in that 17 category as well; correct? 18 A Correct. 19 185 Q The second category of documents requested are 20 any documents referring or relating to 21 Mr. Bennett's request for an exemption; correct? 22 A Correct. 23 186 Q And did you produce in response to this request 24 all such documents? 25 A Yes. 58 1 187 Q A few minutes ago I asked you the contents of 2 the file that you reviewed in preparation for 3 executing your affidavit, Exhibit 1 in these 4 proceedings, and giving your testimony today, 5 and you identified certain categories of 6 documents including the initial request, e-mails 7 that might have been exchanged between you and 8 Ms. Tremblay, e-mails that would have been 9 exchanged between you and the legal division. 10 You didn't produce any of those e-mails, did 11 you? 12 MS. SOKHANSANJ: Which e-mails? 13 MR. TOUSAW: Any of them. 14 A That's correct. 15 MR. TOUSAW: 16 188 Q So when you just answered a moment ago that you 17 produced all documents responsive to your 18 request, that's not correct, is it? 19 MS. SOKHANSANJ: Mr. Tousaw, maybe this is something 20 about which you and I will have an argument, but 21 the respondent's position is that all the 22 relevant documents have been produced. Not all 23 of the -- subject to -- there are relevant 24 documents that are subject to solicitor/client 25 privilege. I'm sure you're not seeking any of 59 1 those. 2 MR. TOUSAW: I'm not seeking any solicitor/client 3 privilege documents. 4 MS. SOKHANSANJ: So apart from that, the relevant 5 documents have been disclosed. 6 MR. TOUSAW: 7 189 Q When you receive a request pursuant to 8 section 318, what do you do? 9 A I would pull the file, and I would -- you know, 10 depending on how long ago the request, you know, 11 was administered, I would review the file and 12 ascertain the documents that were relevant to 13 the decision in the particular request. 14 So in this instance, beyond the 15 solicitor/client privileged documents that I 16 referred to earlier, the two documents that have 17 been provided to you were the other documents 18 that were relevant to Mr. Bennett's request, 19 beyond, of course, his particular request to the 20 minister. 21 190 Q And is that relevance determination a 22 determination that you make? 23 A Yes. 24 191 Q And so there are in existence documents that are 25 responsive to the request, in other words, 60 1 documents that refer or relate to Mr. Bennett's 2 request for an exemption that you determined 3 were not relevant and did not produce? 4 MS. SOKHANSANJ: I'm going to interrupt because 5 you're putting Ms. Kula in a position of giving 6 a quasi-legal opinion. As you know, when we 7 talk about documents being responsive to a 8 Rule 317 request, only documents that are 9 relevant need be provided. You're welcome to 10 ask Ms. Kula about her decisions vis-a-vis what 11 documents are relevant. 12 MR. TOUSAW: Yes, I think that's what I was doing. 13 MS. SOKHANSANJ: But you can't -- to put her in the 14 position of saying you weren't responsive is to 15 put her in the position of trying to provide a 16 legal opinion to explain that, yes, she was 17 responsive because that's what the case law is, 18 that's what Rule 318 is, et cetera. Ask her 19 questions she's in a position to answer. Don't 20 try to get her to give legal opinions. 21 MR. TOUSAW: I'm not trying to get a legal opinion. 22 192 Q You made a decision what was or was not 23 relevant; correct? 24 A That is correct. 25 193 Q Documents exist that refer or relate to 61 1 Mr. Bennett's exemption that were not produced; 2 correct? 3 A The documents that I have provided are the 4 documents that I felt were relevant to the 5 decision in Mr. Bennett's request. 6 194 Q I appreciate that. I would prefer if you 7 answered the question I asked, which was, do 8 documents exist that refer or relate to 9 Mr. Bennett's request for an exemption that were 10 not produced? 11 A Well, I was under the impression that I was 12 supposed to identify for the purposes of 13 Rule 318 documents that were relevant, so I 14 identified the documents that were relevant. 15 The notes that Ms. Cheryl -- Ms. Tremblay 16 may have taken were transactional in nature and 17 were not in my view relevant to the final 18 decision-making in this request. 19 195 Q So the answer to my question, I take it, is yes, 20 there are documents that refer or relate to 21 Mr. Bennett's request for an exemption that have 22 not been produced; correct? 23 A I've already stated that the documents that I 24 provided are the documents that I felt were 25 relevant. 62 1 196 Q Yes. 2 A I don't understand what you're asking me. 3 197 Q I'm asking you if other documents exist 4 referring or relating to Mr. Bennett's request 5 for an exemption that you did not produce. 6 You've identified e-mails. I don't know what 7 the difficulty is here. Quite clearly those 8 documents exist; correct? 9 A Yes, they exist. 10 198 Q Okay. What do you consider when you make a 11 determination that a document is or is not 12 relevant to a request? 13 A I consider the relevance of the documentation to 14 the final decision-making in the request, so the 15 relevant legal opinion, related requests that we 16 would have looked at from a consistency 17 perspective. That's it. The rest of them -- 18 like as I said, the rest of the e-mail exchanges 19 are transactional in nature. They're, for 20 instance, me providing preliminary direction, 21 which is covered in my affidavit. 22 They are perhaps requests from senior 23 management saying what is the progress on this 24 file. I don't believe that those were relevant 25 to decision-making, and that was what I believed 63 1 I was to provide you with. 2 199 Q And when you read what has been marked, I 3 believe, as Exhibit 2 -- 4 A 2. 5 200 Q -- the second request made, the request at least 6 isn't constrained in the way that you've 7 identified it. In other words, you weren't 8 asked to produce documents that you think are 9 relevant; you were asked to produce documents 10 that refer or relate to Mr. Bennett's request 11 for exemption; Correct? 12 MS. SOKHANSANJ: The request speaks for itself, 13 Mr. Tousaw. You don't need to ask her to read 14 it out. 15 MR. TOUSAW: You're directing her not to answer that 16 question? 17 MS. SOKHANSANJ: I'm asking you to move on, 18 Mr. Tousaw. She doesn't -- the request speaks 19 for itself. 20 MR. TOUSAW: I have asked the question, and you can 21 direct her not to answer if you want to. 22 MS. SOKHANSANJ: Well, just to move things along, you 23 know, if your question is, Ms. Kula, what does 24 it state on page 5 of the application where the 25 request is set out, fine, answer the question. 64 1 MR. TOUSAW: Thank you. 2 THE WITNESS: So, can you please ask me the question 3 again because I'm confused following this 4 discussion. 5 MR. TOUSAW: Is it possible to read it back? 6 (COURT REPORTER READ BACK QUESTION 200) 7 THE WITNESS: So what is your question about that? 8 MR. TOUSAW: 9 201 Q So the request made to you was for documents 10 referring or relating to Mr. Bennett's request 11 for an exemption; correct? 12 A That is correct. 13 202 Q Okay. And your answer was you produced 14 documents that you believed were relevant; 15 correct? 16 A That's correct. 17 203 Q And I'm asking you now what criteria did you use 18 to make a determination of what was relevant? 19 MS. SOKHANSANJ: And she's answered that. 20 MR. TOUSAW: Yes, but she answered it by referring to 21 the word "relevance," and that's quite circular. 22 MS. SOKHANSANJ: No. She answered it by setting out 23 to you -- stating to you that she looked at 24 what -- 25 THE WITNESS: I think I -- I believe I used the words 65 1 pertained to the final decision-making, so 2 documents that were referred to and would have 3 been part of our -- the development of the draft 4 response in the assessment or draft 5 recommendation -- sorry, I should say draft 6 recommendation, not draft response, that led to 7 the response that was eventually issued, they 8 would be the documents that were extracted from 9 the file that would have been provided to my 10 director at the time of decision-making. 11 MR. TOUSAW: 12 204 Q So your view of what is relevant is constrained 13 to those documents which were provided to your 14 director to make the decision? 15 A That is general practice within our office in 16 terms of decision-making. When I'm -- you know, 17 I handle many files, many policy issues. It 18 would be impossible for my director to review 19 the files that may be volumes and volumes in 20 length every time they are called upon to make a 21 decision. 22 So it is general practice that we extract 23 relevant documents from the file and provide 24 those to them, and then in the case of 25 Mr. Bennett's request we had a verbal briefing 66 1 and discussion as well, but, you know, we 2 provide those documents, and that is what I 3 believed to be the appropriate response to your 4 request. 5 205 Q Okay. And did you provide your director with 6 any of the draft recommendations? 7 MS. SOKHANSANJ: Which draft recommendations? 8 MR. TOUSAW: 9 206 Q Well, she identified that there was a 10 development of a draft recommendation; correct? 11 A Right. 12 207 Q Okay. Was there a development of a final 13 recommendation? 14 A Yes. 15 208 Q So the draft became final; correct? 16 A Right. 17 209 Q And did the director get provided with any 18 copies of the draft recommendations? 19 MS. SOKHANSANJ: I think that's in her affidavit. 20 THE WITNESS: And I would also say, at the time that 21 it goes to the director it is a draft 22 recommendation because that's the purpose of my 23 job, is to provide a recommendation, and then we 24 have a discussion and/or there is a 25 decision-making process and a final decision is 67 1 made that becomes a final decision, so by its 2 very nature it's draft when it goes. 3 MR. TOUSAW: 4 210 Q And so the director was provided with such a 5 document; correct? 6 A Was provided with what document, sorry? 7 211 Q What you just referred to, a draft 8 recommendation. 9 A That is correct. 10 212 Q And that does not appear in your certificate 11 under Rule 318; correct? 12 A Well, the draft recommendation was the draft 13 response that became the final response because 14 my director agreed with the recommendation, so 15 the final response is attached to my affidavit, 16 so I didn't see the need to reproduce that in 17 response to Rule 318. 18 213 Q And when you say your director, you mean 19 Mr. Denault? 20 A That's correct. 21 214 Q And so the only document that was provided to 22 Mr. Denault in connection with his making of a 23 decision on this file appears at tab D, 24 Exhibit D to your affidavit; is that correct? 25 A It's not the only document. I also provided him 68 1 with copies of Mr. Bennett's request, the letter 2 from yourself, the statutory declaration. I 3 provided him with the two documents that are 4 listed in the certificate for Rule 318. I 5 provided him with a draft response to 6 Mr. Bennett -- well, actually to yourself in 7 fact, but -- and I provided him with the 8 relevant legal opinions. 9 215 Q You did not provide Mr. Denault with any issue 10 analysis statements; correct? 11 A Well, I've already answered a question that said 12 no issue analysis was prepared in the form that 13 you asked me about, so no, I did not provide it. 14 None was prepared. 15 216 Q You did not provide Mr. Denault with any notes 16 related to the religious use of marihuana; 17 correct? 18 A Correct. 19 217 Q You did not provide Mr. Denault with any of the 20 notes or research results from the work 21 conducted by Ms. Tremblay; correct? 22 A Correct. I would have reviewed that information 23 in the verbal briefing that I refer to in the 24 affidavit, and I believe that is paragraph 28 25 and 29. 69 1 218 Q Referring back to Exhibit 2 in this 2 cross-examination -- 3 MS. SOKHANSANJ: So that's the 318 response? 4 MR. TOUSAW: That's the 318 response. 5 219 Q -- page 5, third point, you're asked to produce 6 documents referring or relating -- 7 MS. SOKHANSANJ: Hold on. 8 THE WITNESS: Sorry, let me just get there. 9 MS. SOKHANSANJ: She is just turning to that page. 10 MR. TOUSAW: Yes. 11 MS. SOKHANSANJ: Page 5 of Exhibit 2? I don't know 12 that we're in the same place. I am in the 13 letter to Mr. Clement. 14 MR. TOUSAW: No. The third request for documents. 15 THE WITNESS: Oh, it's your request. 16 MS. SOKHANSANJ: Oh, sorry, that's Exhibit 3. 17 MR. TOUSAW: That's Exhibit 3. 18 THE WITNESS: Sorry. 19 MS. SOKHANSANJ: Okay. Sorry. 20 MR. TOUSAW: 318, yes. 21 THE WITNESS: Okay. So -- yes? 22 MR. TOUSAW: 23 220 Q The third request was: 24 "Documents referring or relating to 25 section 56 exemptions granted to any 70 1 person or group to the extent that such 2 exemptions were sought and/or granted for 3 religious, spiritual and/or cultural 4 purposes." 5 You see that; right? 6 A M'mm-hmm. Sorry, yes. 7 221 Q Okay. So I assume and I'll ask that you 8 undertook the same relevance determination in 9 deciding what documents to produce in response 10 to that request? 11 A That would be correct. 12 222 Q Okay. And so it was not -- it was your view 13 that documents related, for example, to the khat 14 request we discussed earlier were not relevant? 15 MS. SOKHANSANJ: Just to be very clear, she has also 16 already answered that there have been no 17 section 56 exemptions granted to any persons for 18 spiritual and/or cultural purposes. 19 MR. TOUSAW: That's true. 20 223 Q And did you consider whether or not documents 21 related to the khat and/or ayahuasca requests 22 were relevant? 23 MS. SOKHANSANJ: To? 24 MR. TOUSAW: Were relevant documents. 25 MS. SOKHANSANJ: To what? 71 1 MR. TOUSAW: To Mr. Bennett's request. 2 MS. SOKHANSANJ: In considering Mr. Bennett's 3 request? 4 MR. TOUSAW: Yes. 5 THE WITNESS: I'm sorry, can you just repeat the 6 question? 7 MR. TOUSAW: 8 224 Q Did you or Ms. Tremblay review the ayahuasca or 9 khat requests when making a determination on 10 Mr. Bennett's request? 11 A No. I, of course, am familiar with all of the 12 files, but Ms. Tremblay did not -- I did not 13 direct Ms. Tremblay to review those files. 14 225 Q You didn't think that it would be a relevant 15 consideration in reviewing Mr. Bennett's request 16 that other religious requests had been processed 17 by your office? 18 A Well, as I've stated previously, and it's also 19 in my affidavit, these requests are unique, 20 exceptional requests. They are handled very 21 much on a case-by-case basis, so if you want to 22 infer from that were they relevant, I would say 23 because of the case-by-base nature, no, they're 24 not relevant, and so I didn't believe that they 25 needed to be reviewed in the context of 72 1 assessing Mr. Bennett's request. 2 226 Q Are there written policies or procedures or 3 guidelines that guide your response to requests 4 for documents under Rule 318? 5 A Well, legal counsel would assist me in preparing 6 the response. So that is the limit of the 7 guidance that I've been provided with. 8 227 Q So you're not aware of any written policies or 9 procedures that guide that process? 10 MS. SOKHANSANJ: In the Department of Health? 11 MR. TOUSAW: In her office. 12 MS. SOKHANSANJ: Okay. 13 A In my office specifically, no. 14 MR. TOUSAW: 15 228 Q Okay. And just so I'm clear on -- because we've 16 sort of talked around it and about it a lot on 17 what "relevant" means to you, and let me 18 summarize what I think you've said and you tell 19 me if I'm right or wrong, "relevant" means to 20 you relevant to the decision-making of your 21 director; correct? 22 A Correct. 23 229 Q Material that your director reviewed in 24 connection with making that decision; correct? 25 A Well, I actually would want to qualify that. I 73 1 think it depends on the context for the 2 relevance determination. You were asking me 3 questions about what did I mean when I said 4 relevant in connection to the preparation of the 5 response for the certificate under Rule 318. In 6 that context relevance to me means used as the 7 basis or referred to in the process of 8 decision-making. 9 I cannot comment on my interpretation of 10 the word "relevance" for all other facets of my 11 job. 12 MR. TOUSAW: Are we at 11:00? 13 MS. SOKHANSANJ: Close. I don't want to cut you off 14 midstream either. 15 MR. TOUSAW: I'll ask just a couple more questions 16 along these lines then. 17 230 Q You indicated that the ayahuasca request had not 18 been granted. It's true that it was actually 19 provisionally granted; isn't that true? 20 MS. SOKHANSANJ: I'm going to direct her not to 21 answer that question. My objection stands. 22 MR. TOUSAW: That's a good time for a break. 23 (PROCEEDINGS ADJOURNED AT 11:00 A.M.) 24 (PROCEEDINGS RECONVENED AT 11:21 A.M.) 25 MR. TOUSAW: 74 1 231 Q Ms. Kula, I'll take you to your affidavit in 2 Exhibit 1 in these proceedings, specifically 3 paragraph 4, and you can read it, so I'm not 4 going to read the paragraph for you, but let me 5 ask you in relation to paragraph 4 how, in your 6 view, the Controlled Drugs and Substances Act 7 provides for control over cannabis? 8 A Well, cannabis is a substance that is known to 9 alter mental processes and is known to produce 10 harm to health in society, so it is a listed 11 substance in the CDSA, therefore the CDSA 12 governs activities with it. 13 232 Q And other than the Marihuana Medical Access 14 Regulations, the CDSA is in absolute prohibition 15 on the possession, production and distribution 16 of cannabis; correct? 17 A That is correct with the exception, of course, 18 of section 56 if the minister was to deem an 19 exemption was necessary -- was appropriate, 20 sorry. 21 233 Q And so there are, again, other than the MMAR, 22 currently no regulations guiding the production 23 of cannabis; correct? 24 A Well, I guess it's important to distinguish 25 exactly what you mean by cannabis because of 75 1 course there are the industrial hemp 2 regulations. 3 234 Q Yes. 4 A And technically hemp is a -- are cannabis 5 plants, albeit plants that are produced of a 6 limited or a lower percentage of THC. 7 235 Q Yes. 8 A So to be clear, when you talk about cannabis, 9 you mean cannabis, marihuana, the substance that 10 is known to have a psychoactive effect? 11 236 Q That is what I mean, correct, in this question, 12 yes. 13 A So then the answer to the question that you 14 asked me about whether the Marihuana Medical 15 Access Regulations are the only regulations that 16 pertain to cannabis, that is -- the answer to 17 that would be yes. 18 237 Q You identify in that paragraph -- 19 A Actually, I'm sorry, can I just go back? 20 Technically, to be very clear, the Narcotic 21 Control Regulations also apply to cannabis. The 22 Narcotic Control Regulations govern the movement 23 of narcotics, and since cannabis, although 24 listed in a separate schedule to the CDSA, is 25 deemed a narcotic subject to the United Nations 76 1 conventions on drug control, it is also listed 2 in a schedule to the Narcotic Control 3 Regulations. 4 238 Q Yes. 5 A So there are provisions for the licensing of 6 entities in order to produce or carry out 7 activities, all activities with cannabis under 8 those regulations as well. 9 239 Q You indicate: 10 "The CDSA seek to prevent risk to public 11 health, safety and security, including 12 risk of diversion and misuse, by 13 prohibiting access to controlled 14 substances." 15 What, with respect to cannabis use, is your view 16 of the risk to public safety presented by 17 cannabis? 18 A Well, I think there's two things. First of all, 19 users under the influence of cannabis could pose 20 a risk to others if they were to drive a car, 21 use heavy machinery, generally engage in 22 activities that could have an impact on others. 23 If individuals were to produce cannabis 24 illegally and be involved in activities related 25 to illegal distribution, that might result in 77 1 crime or criminal behaviour and violence that 2 might have an impact on the broader safety of 3 the public, and in addition, you know, the 4 corollary to that is if an individual is 5 involved in producing cannabis, even legally, 6 they may be targeted by individuals interested 7 in accessing that supply, so there is a public 8 safety risk there as well. 9 240 Q And that, the three risks that you just 10 identified there, apply to really a range of 11 substances, both controlled substances under the 12 CDSA and substances under, for instance, the 13 Natural Health Product Regulation. That's 14 correct, isn't it? 15 A I think you would need to be more specific for 16 me as to what you mean by substances under the 17 Natural Health Product Regulations or other 18 substances that -- can you give me an example? 19 241 Q Well, let's start with the CDSA. There are a 20 whole range of substances regulated under the 21 CDSA -- 22 A Yes. 23 242 Q -- that you should not ingest and drive heavy 24 machinery; correct? 25 A That's correct. 78 1 243 Q And a whole range of substances the production 2 and distribution illegally that could result in 3 criminal behaviour or violence. That's correct, 4 isn't it? 5 A That's correct. 6 244 Q And the same thing -- even if you produce 7 certain substances legally or possess certain 8 substances legally, you could be the target of 9 criminal activity; correct? 10 A Correct. 11 245 Q And the example, of course, I'm thinking of 12 is -- 13 A That's fundamentally the -- sorry. No, that's 14 okay. 15 246 Q That's fundamentally? 16 A No, it's all right. Go on. You were asking a 17 question. 18 247 Q Well, I will ask you what you were just going to 19 say. 20 A I was going to say that what you are asking me 21 to recant to you is essentially the purpose of 22 the CDSA, one of the purposes of the CDSA. 23 248 Q If an individual doesn't drive or operate heavy 24 machinery under the influence of cannabis, in 25 other words doesn't violate the law, prohibiting 79 1 impairment while driving, for example, and 2 produces cannabis lawfully for their own use, 3 those first two risks you identify are 4 ameliorated, isn't that correct? 5 A The first two risks being, I believe -- so the 6 issue of impairment and possible danger to 7 others, and the second one I believe was the 8 risk of link to criminal behaviour and so on? 9 249 Q Exactly. The black market risks. 10 A The black market risk. And sorry, the question 11 was if someone was to lawfully carry out 12 activities with cannabis for their own 13 individual purposes -- 14 250 Q Yes. 15 A -- the first two risks would be negated? 16 251 Q That's right. In other words, if you don't 17 drive while under the influence of cannabis, the 18 risk of driving under the influence of cannabis 19 doesn't exist; correct? 20 A To me that's speculative, but I guess I could 21 concur with that statement. 22 252 Q Okay. And if you don't -- 23 A I'm not sure where you're going, but anyways. 24 253 Q And if you don't associate with the black 25 market, if you're not producing and distributing 80 1 illegally, the risks associated with the black 2 market for that individual are not present; 3 correct? 4 A I don't think -- that was your terminology, "the 5 black market." I don't think I necessarily 6 meant linked to -- you know, sort of criminal 7 behaviour was necessarily meaning the black 8 market. I think what I meant was that there may 9 be the potential to seek -- to engage in 10 activities of diversion. 11 Sorry, what was your question again? 12 254 Q Well, you identified three categories of risk. 13 A M'mm-hmm. 14 255 Q The first category was, and I'll lump it under 15 the rubric of operating vehicles or heavy 16 machinery while impaired, you can ameliorate 17 that risk by not doing that; correct? 18 A That is correct. 19 256 Q Okay. The second category of risk you 20 identified was production and distribution 21 illegally that may result in criminal behaviour 22 or violence; correct? 23 A Correct. 24 257 Q And if you're not producing or distributing 25 illegally, then you're not involved in that 81 1 criminal behaviour and violence; correct? 2 A Correct. 3 258 Q You're not suggesting that the use of cannabis 4 causes violent episodes? That's not your 5 suggestion, is it? 6 A No. I was not suggesting that. 7 259 Q And you're not suggesting and you don't hold the 8 belief that cannabis is a criminogenic 9 substance, in other words, a substance that 10 causes the user to commit crimes? You're not 11 suggesting that, are you? 12 A No. 13 260 Q Okay. And the third risk of course you 14 identified was production, even in a legal 15 environment, may make you a target; correct? 16 A Correct. 17 261 Q And that risk obviously applies to a range of 18 substances, including methadone, narcotic-based 19 opiate painkillers, the list goes on? 20 A Correct. 21 262 Q Cough syrup even; correct? 22 A Correct. 23 263 Q Okay. You go on in paragraph 4 to talk about 24 the risk of diversion and misuse, and I'll come 25 back to diversion in a moment. What do you mean 82 1 when you say "misuse"? 2 A Well, broadly speaking misuse is use outside of 3 the permitted conditions of use or recommended 4 conditions of use. I mean, you know, I think 5 it's probably a term that's used more commonly 6 with controlled substances that are -- and even 7 other pharmaceutical products as you've 8 identified, but in the controlled substances 9 realm it's probably a term that is used more 10 commonly with products containing controlled 11 substances that are intended for licit medical 12 purposes or scientific purposes, et cetera, 13 industrial purposes, but I mean, you know, it 14 can also be applied to illicit drugs. 15 It's a broad terminology that really means 16 knowingly using a drug outside of the generally 17 accepted way in which it should be used. 18 264 Q Okay. Thank you for that. 19 And at the end of your first sentence in 20 paragraph 4 you talk about substances that may 21 produce harm and health -- sorry, "harm to 22 health and to society, especially to vulnerable 23 individuals," and I'm wondering what you mean 24 when you say "vulnerable individuals"? 25 A Well, I think there's -- again, it's a global 83 1 term, but I think it sort of encompasses several 2 categories of individuals. I mean I think 3 youth, I think people who are -- pregnant women, 4 for instance, people who are predisposed to 5 mental illness, people who already suffer from 6 mental illness, people who are predisposed to 7 other health conditions or already have other 8 health conditions that may be worsened by the 9 consumption of, or activities with, controlled 10 substances. 11 265 Q And specific to cannabis and not just the 12 broader category of controlled substances, would 13 you identify those same categories as vulnerable 14 individuals? 15 A Yes. 16 266 Q And are you familiar with the decision in the 17 Supreme Court of Canada in a case called R. v. 18 Malmo-Levine? 19 A I'm familiar with it, yes. 20 MS. SOKHANSANJ: I'm just going to stop here and 21 remind you -- 22 MR. TOUSAW: I'm not going to ask for a legal 23 opinion. 24 MS. SOKHANSANJ: -- you're not going to be asking her 25 for any legal opinion. 84 1 MR. TOUSAW: No, I won't be asking for a legal 2 opinion. 3 267 Q Are you aware that in that case the Supreme 4 Court of Canada identified what it deemed to be 5 vulnerable groups? 6 MS. SOKHANSANJ: See, again, you're asking her to 7 interpret the case and state what the Supreme 8 Court of Canada identified in the case. 9 MR. TOUSAW: No. I'm asking about her knowledge. 10 268 Q Are you aware that in that decision the Supreme 11 Court of Canada discussed what it identified as 12 vulnerable groups? 13 A Yes, I am aware. 14 269 Q And are you aware of what those groups were? 15 MS. SOKHANSANJ: See, again, you're asking her to say 16 what her opinion is as to what the Supreme Court 17 of Canada identified -- 18 MR. TOUSAW: I'm not asking her opinion. 19 MS. SOKHANSANJ: -- in a legal case as to the 20 vulnerable groups. The case speaks for itself. 21 Mr. Tousaw, if you have questions about 22 those vulnerable groups and what was identified, 23 you're welcome to cite from the case and ask her 24 about her knowledge of those paragraphs. 25 MR. TOUSAW: I'm not asking for her opinion at all. 85 1 I am asking if she's aware of what the Supreme 2 Court of Canada identified as vulnerable groups 3 as it relates cannabis. 4 270 Q Are you aware of that? 5 MS. SOKHANSANJ: She shouldn't be put in the position 6 of saying -- making what is essentially a legal 7 submission. I object, and I'm advising her not 8 to answer. 9 MR. TOUSAW: I have no idea how asking someone's 10 awareness of -- 11 MS. SOKHANSANJ: She said she is aware of the case. 12 She said that she is aware that that's one of 13 the things the court did. Asking her to then 14 make what is essentially legal submission or 15 argument on what the court found in a judgment, 16 that's a law school exam question. She 17 shouldn't be asked those, and she is not being 18 put forward as a legal expert. 19 MR. TOUSAW: And if I had asked that question I might 20 agree with you, and I would appreciate it next 21 time if you didn't interrupt me while I was in 22 the middle of a sentence. Thank you. 23 271 Q My question is, are you aware of what the 24 Supreme Court of Canada identified for 25 vulnerable groups as it relates to cannabis? 86 1 Yes or no? 2 MS. SOKHANSANJ: I have objected, and I'm going to 3 maintain the objection and advise her not to 4 answer. Move on, please. 5 MR. TOUSAW: 6 272 Q Mr. Bennett is not a youth; correct? 7 A Yes. 8 273 Q Mr. Bennett is not a pregnant woman; correct? 9 A Yes. 10 274 Q You don't know if Mr. Bennett is predisposed to 11 mental illness, do you? 12 A Correct. 13 275 Q In considering his request you didn't ask 14 Mr. Bennett or his representative if he was 15 predisposed to mental illness, did you? 16 A No. 17 276 Q You similarly are unaware of and did not seek 18 information about whether or not Mr. Bennett 19 suffers from mental illness; correct? 20 A Correct. 21 277 Q You similarly are unaware of and did not ask if 22 Mr. Bennett is predisposed or currently has 23 other health conditions to which cannabis would 24 be contraindicated; correct? 25 A Correct. 87 1 278 Q So you don't know, sitting here today, if 2 Mr. Bennett does or does not fit into what you 3 have described as vulnerable groups; correct? 4 A Correct. 5 279 Q And you made no attempt to determine that when 6 processing his request; correct? 7 A Correct. 8 280 Q In that paragraph you discuss the -- 9 MS. SOKHANSANJ: In paragraph 4? 10 MR. TOUSAW: 11 281 Q Paragraph 4, the same one we've been discussing, 12 you discuss the risk of diversion, and by that 13 do you mean diversion of cannabis to the black 14 market? 15 A Well, first of all, this is a paragraph that is 16 talking about the CDSA and the control of 17 substances in general. 18 282 Q Yes. 19 A It is not a paragraph that is specific to 20 cannabis. 21 283 Q Okay. 22 A So in the context of the paragraph as written, 23 the risk of diversion is -- diversion is 24 considered to be any activity that results in 25 controlled substances not being subject to the 88 1 controls to which they're supposed to be 2 controlled. 3 So, for instance, it may mean intentional 4 loss, intentional provision to someone who is 5 not authorized to possess or do something with 6 them. It may mean smuggling. It may mean 7 double doctoring. It may mean theft from a home 8 or other organization or other location. Those 9 are all examples of diversion. 10 284 Q And specific to cannabis, when you talk about 11 the risk of diversion, does it encompass those 12 four items that you've just relayed to me? 13 A It could. 14 285 Q I mean, it's not a trick question. I'm just 15 wondering -- 16 A I wasn't treating it in that way. 17 286 Q -- if by diversion you mean essentially products 18 going to the black market? 19 MS. SOKHANSANJ: Mr. Tousaw, please don't interrupt 20 her -- 21 MR. TOUSAW: I didn't. 22 MS. SOKHANSANJ: -- when she is saying something. 23 She was in the midst of a statement. 24 MR. TOUSAW: That's not accurate. 25 MS. SOKHANSANJ: She said, I wasn't treating it as a 89 1 trick question, and you spoke over her. Perhaps 2 you didn't hear. 3 THE WITNESS: Sorry, what was your question again? 4 MR. TOUSAW: 5 287 Q Specific to cannabis, as opposed to all drugs 6 under the CDSA, when you talk about diversion, 7 you're talking about the categories that you 8 just identified, and the government's concern 9 principally, isn't it, is diversion to the black 10 market? Isn't that the government's principal 11 concern when it talks about diversion? 12 MS. SOKHANSANJ: So there's three questions there. 13 Which one of them would you like to ask first? 14 MR. TOUSAW: Well, we'll take them in order. 15 MS. SOKHANSANJ: All right. So the first one was 16 what she was talking about when she was talking 17 about diversion. Why don't you ask that one 18 again then, Mr. Tousaw. 19 MR. TOUSAW: I've asked it. 20 THE WITNESS: So you're asking me if the -- sort of 21 the broad definition for diversion that I 22 provided to you applies to cannabis? 23 MR. TOUSAW: 24 288 Q Is that what you mean when you say diversion, 25 vis-a-vis cannabis, yes. 90 1 A Broadly speaking, yes. 2 289 Q And is the government's principal concern when 3 it worries about diversion, diversion to the 4 black market? 5 MS. SOKHANSANJ: Don't answer that question. I'm 6 going to object to it. 7 Ms. Kula is not here to provide a 8 government position or to speak on behalf of the 9 government. She's here to speak on her own 10 behalf and to be cross-examined on her affidavit 11 and the subject matter therein. She's not in a 12 position to say to what the Government of 13 Canada's belief is. She's in a position to say 14 what her understanding is. 15 MR. TOUSAW: 16 290 Q Well, you work for the Government of Canada; 17 correct? 18 A Yes. 19 291 Q And you have a senior position at the Government 20 of Canada; correct? 21 A Yes. 22 292 Q And your position is the manager of the Policy 23 and Regulatory Affairs division of the Office of 24 Controlled Substances; correct? 25 A Yes. 91 1 293 Q And so you have a general sense, do you not, of 2 what the Government of Canada's concerns are 3 vis-a-vis the black market in cannabis in this 4 country; correct? 5 MS. SOKHANSANJ: I'm going to object to the question 6 and advise her not to answer it because whether 7 she has that understandings or not, that's not 8 what she's here to be questioned on. She's here 9 to be cross-examined on her affidavit. 10 Mr. Tousaw, whether you like it or not, 11 it's not examination for discovery. She's not 12 here as an agent of a defendant government Crown 13 body. 14 MR. TOUSAW: I'm asking questions about the 15 affidavit; right? This is an affidavit that -- 16 294 Q You provided this affidavit to me; correct? 17 A Correct. 18 295 Q And in this affidavit you talk about the CDSA 19 seeking to prevent risk to public health, safety 20 and security including risk of diversion; 21 correct? 22 A Correct. 23 296 Q And I'm trying to figure out what you mean by 24 that; correct? 25 MR. TOUSAW: Is that a relevant question? 92 1 MS. SOKHANSANJ: You can certainly ask her what her 2 understanding was. Every single one of the 3 questions to which I objected started with "and 4 it's the Government of Canada's position that," 5 or "it's the Government of Canada's concern 6 that," and what I'm clarifying is Ms. Kula is 7 not here to provide answers as to what the 8 Government of Canada's position or concern is. 9 She's here to explain her understanding and her 10 knowledge vis-a-vis the subject matter of her 11 affidavit. 12 MR. TOUSAW: 13 297 Q And as the manager of the Policy and Regulatory 14 Affairs division, have you gained any 15 familiarity with the use of the term "diversion" 16 as it relates to cannabis? 17 A Yes. 18 298 Q Okay. And does your understanding of that term 19 encompass diversion to the black market? 20 A Yes. 21 299 Q Okay. There's a vast black market in cannabis 22 in this country; isn't that right? 23 A Yes. 24 300 Q And you're aware that the estimates of the black 25 market in cannabis are upwards of several 93 1 billions of dollars per year; correct? 2 A I wouldn't have that type of knowledge at my 3 fingertips. 4 301 Q That's not something you ever come across in 5 your work in policy in this area? 6 A I may have come across it, but I can't confirm 7 at this particular moment in time whether the 8 numbers you're quoting are correct. 9 302 Q You wouldn't be surprised to learn, would you, 10 that the black market in cannabis in this 11 country is in the billions of dollars? 12 MS. SOKHANSANJ: I object. That's an improper 13 question. She said she doesn't know. I can't 14 be specific at this time. Move on, Mr. Tousaw. 15 MR. TOUSAW: 16 303 Q Have you ever come across estimates of the size 17 of the black market in cannabis in this country 18 in your work with Health Canada? 19 A Yes. 20 304 Q And were those estimates in the thousands of 21 dollars? 22 A No. 23 305 Q Were they in the tens of thousands of dollars? 24 A No. 25 306 Q Were they in the hundreds of thousands of 94 1 dollars? 2 A No. 3 307 Q Were they in the millions of dollars? 4 A Probably. 5 308 Q Tens of millions of dollars? 6 A Could be. 7 309 Q Hundreds of millions of dollars? 8 A Could be. 9 310 Q Billions of dollars? 10 A I'm not aware. I really do not recall the exact 11 figures that I have seen in those types of 12 reports. 13 311 Q And does Health Canada track diversion of 14 cannabis produced pursuant to the Medical 15 Marihuana Access Regulations? 16 MS. SOKHANSANJ: Sorry, produced pursuant to the? 17 MR. TOUSAW: Medical Marihuana Access Regulations. 18 MS. SOKHANSANJ: She's answered she doesn't work with 19 those regulations. 20 MR. TOUSAW: 21 312 Q Do you know if Health Canada tracks diversion of 22 cannabis produced pursuant to the MMAR? 23 A Diversion by its very nature is an illegal 24 activity, and Health Canada is responsible for 25 the administrative -- ensuring administrative 95 1 compliance with its regulations. Matters of 2 illegal activity are referred to law 3 enforcement. 4 313 Q Okay. And do you know if Health Canada attracts 5 incidence of diversion by persons licensed under 6 the MMAR? 7 A I'm not sure I understand what you mean by 8 "incidences of diversion." 9 314 Q Well, we've generally agreed that diversion can 10 include diversion to the black market; correct? 11 A Right. 12 315 Q Okay. Are you aware of whether or not Health 13 Canada tracks incidences of persons licensed 14 under the MMAR diverting cannabis to the black 15 market? 16 MS. SOKHANSANJ: She's already answered that 17 question. She answered the question are you 18 aware of whether Health Canada tracks incidences 19 of diversion under the MMAR by explaining that 20 Health Canada deals with matters of 21 administrative compliance and illegal activity 22 is referred to law enforcement. 23 Ask a new question, please, Mr. Tousaw. 24 MR. TOUSAW: Are you directing her not to answer that 25 question because that wasn't the answer -- 96 1 MS. SOKHANSANJ: I am because she's already answered 2 it. I'm not directing her not to answer it. 3 I'm informing her that she has already answered 4 it, as I am informing you. Move on, please, 5 Mr. Tousaw. 6 I've given you a lot of leeway in terms of 7 following this line. 8 MR. TOUSAW: You can save the commentary. I don't 9 need it. Make your objections if you have them. 10 Direct your witness not to answer if you want to 11 direct your witness not to answer, but I'm going 12 to ask the questions I want to ask, okay? 13 MS. SOKHANSANJ: That's fine. 14 MR. TOUSAW: Thank you. 15 MS. SOKHANSANJ: But you can save your commentary as 16 well. Let's move on. 17 MR. TOUSAW: I didn't make any commentary. I asked 18 you to confine yourself to your objections and 19 the directions to your witness. It's my 20 examination, okay? 21 MS. SOKHANSANJ: Move on, please, Mr. Tousaw. 22 MR. TOUSAW: Thank you. I will. 23 316 Q Health Canada sells marihuana; isn't that 24 correct? 25 A Yes. 97 1 317 Q And Health Canada sells marihuana for 2 approximately $5 a gram to authorized persons; 3 isn't that correct? 4 A That is one option for persons authorized under 5 the program. 6 318 Q Yes. And that $5 a gram is substantially under 7 the black market pricing for cannabis; isn't 8 that correct? 9 A Yes, I would agree. 10 319 Q And the MMAR -- and you know what I mean when I 11 say "MMAR"; correct? 12 A M'mm-hmm. 13 320 Q The MMAR is an exemption scheme for persons 14 using marihuana for medical purposes; correct? 15 A It's not an exemption scheme. It is a scheme 16 that allows for individuals who meet certain 17 criteria to be authorized to possess and/or to 18 produce marihuana legally for their own personal 19 medical purposes. 20 321 Q And other persons under the MMAR are licensed to 21 produce marihuana for other's medical purposes; 22 correct? 23 A You're referring to designated persons under the 24 regulations? 25 322 Q I am. Yes. 98 1 A Yes, that is correct. 2 323 Q And those persons are entitled to also possess 3 the marihuana; correct? 4 A Well, by the very nature of producing it one 5 must possess it, so yes. 6 324 Q And they're entitled to transfer it to 7 authorized persons; correct? 8 A Yes. 9 325 Q And persons that qualify under the MMAR include 10 two sets of categories; correct? 11 A Yes. 12 326 Q Category 1 relates to a series of specified 13 conditions; correct? 14 A I believe so. 15 327 Q Category 2 essentially allows access to cannabis 16 for any medical purposes so long as it is 17 supported by the appropriate declaration from 18 the individual's physician; correct? 19 MS. SOKHANSANJ: I'm not going to object to her 20 answering the question, but I just want to 21 remind you, Mr. Tousaw, that she has already 22 answered that she's not responsible for 23 administering the MMAR, so when you're asking 24 her questions, I hope you're not taking it as 25 being somehow representative of the manner in 99 1 which the Department of Health or Health Canada 2 administers the MMAR because she's simply not in 3 a position to provide that information to you. 4 MR. TOUSAW: I'm asking for her knowledge. 5 THE WITNESS: So, sorry, can you repeat the question? 6 MR. TOUSAW: 7 328 Q The question was, category 2 under the MMAR 8 allows for access to cannabis for any medical 9 purpose so long as the applicant's physician 10 makes the appropriate declarations; correct? 11 A I believe that's correct. I have a copy of the 12 regulations here. Probably if I was -- if 13 you're going to ask me to confirm that, I would 14 want to consult the regulations. 15 329 Q And you brought a copy of the regulations with 16 you today? 17 A Yes. 18 330 Q And you are familiar with the regulations having 19 a fairly senior role in Policy and Regulatory 20 Affairs in the Office of Controlled Substance -- 21 MS. SOKHANSANJ: Which regulation specifically? 22 Sorry, I didn't mean to interrupt you. Which 23 regulation specifically? 24 MR. TOUSAW: The Marihuana Medical Access 25 Regulations. 100 1 A Yes, I have familiarity with those regulations. 2 MR. TOUSAW: Thank you. 3 331 Q So, for instance, persons living with HIV/AIDS 4 fall into category 1 of the MMAR; correct? 5 A This is where for absolute confirmation I would 6 want to consult the regulations. I rarely 7 provide policy advice without consulting the 8 regulations. 9 332 Q Fair enough. Do you have a copy with you? 10 A Yes, I do. 11 333 Q I'm happy to have you look at it. 12 A So in my copy of the regulations it refers to 13 category 1 means: 14 "Any symptom treated within the context of 15 compassionate end-of-life care or a 16 symptom set out in column 1 of the 17 schedule that is associated with a medical 18 condition set out in column 2 or with the 19 medical treatment of that condition." 20 And then category 2 is: 21 "Symptom means a debilitating symptom that 22 is associated with a medical condition or 23 with the medical treatment of that 24 condition and that is not a category 1 25 symptom." 101 1 334 Q Thank you. 2 Does that refresh your recollection as to 3 where somebody living with HIV/AIDS suffering 4 from, for example, cachexia would fall? 5 MS. SOKHANSANJ: Sorry, suffering from what? 6 MR. TOUSAW: Cachexia. 7 MS. SOKHANSANJ: Can you spell that? 8 MR. TOUSAW: C-a-c-h-e-x-i-a. 9 THE WITNESS: It means wasting in the context of 10 end-of-life conditions. 11 MS. SOKHANSANJ: All right. So, Mr. Tousaw, I've 12 given you a lot of opportunity to ask about the 13 MMAR. This case isn't about the MMAR. Ms. Kula 14 is not an expert in the MMAR, and now you're 15 asking her to give a legal opinion as to whether 16 a particular condition would fall under a 17 particular category under a regulatory 18 provision. 19 MR. TOUSAW: I don't think it's a legal opinion. 20 MS. SOKHANSANJ: Relevance? Well, you can ask 21 her if -- well, actually I don't know. What are 22 you asking? You want to ask her if in her view, 23 if in her opinion the regulation would encompass 24 an individual? That's a legal opinion as far as 25 I can tell. 102 1 MR. TOUSAW: Well, the regulations speak for 2 themselves. 3 MS. SOKHANSANJ: They do, so you don't need to ask 4 questions about them. 5 MR. TOUSAW: 6 335 Q The governor in council is authorized to make 7 regulations as required; isn't that correct? 8 MS. SOKHANSANJ: Under what provision of what 9 legislation? 10 MR. TOUSAW: Well, let's assume that since we're here 11 talking about the Controlled Drugs and 12 Substances Act, that when I ask about 13 promulgation of regulations I mean under the 14 Controlled Drugs and Substances Act, and if I 15 mean some other act, I will specify it. Does 16 that work for you? Does that work for you, 17 counsel? 18 MS. SOKHANSANJ: I would rather you were specific. 19 MR. TOUSAW: Am I confusing you? 20 MS. SOKHANSANJ: Yes, because you've moved from the 21 MMAR and asking about the authorization to make 22 regulations back to the CDSA. At one point you 23 were talking about regulations generally under 24 the CDSA, which would include the Industrial 25 Health Regulations as well. 103 1 There's a number of pieces of regulation. 2 I don't think it's being unduly onerous, but you 3 can let me know if you feel it is, for me to ask 4 you to be specific when you ask about 5 legislative authority to do something, 6 especially since, as I've said time and again, 7 we're dealing with a non-lawyer who is not in a 8 position to provide legal opinions. 9 MR. TOUSAW: 10 336 Q Well, at paragraph 4 of your affidavit, in the 11 last sentence you talk about the authorization 12 of the governor in council to make regulations 13 as required under the CDSA; correct? 14 A Right. 15 337 Q Okay. So the governor in council has the 16 authority to make regulations under that 17 legislation as required; correct? 18 A That is correct, section 55. 19 338 Q Thank you. 20 At paragraph 5 of your affidavit, marked as 21 Exhibit 1, you discuss a series of international 22 conventions that you collectively refer to as 23 the UN drug conventions; correct? 24 A That is correct. 25 339 Q And are you aware that the UN drug conventions 104 1 contain what I will refer to as exemptions 2 allowing member states to promulgate laws that 3 conform with that member state's constitutions? 4 A I would not use the wording that you have used, 5 i.e. exemption. The conventions simply state 6 that they establish an overarching drug control 7 framework but that member signatories are of 8 course able to and can, if they so desire, 9 provide for consideration of either regulations 10 or systems that would fall outside of the scope 11 of the conventions. 12 340 Q And the member states can do so in order to 13 conform with the member states' own 14 constitutional documents; correct? 15 A That's correct. 16 341 Q And of course member states can withdraw from 17 the conventions; correct? 18 A Yes. 19 342 Q Okay. At paragraph 9 of your affidavit, 20 Exhibit 1, you discuss examples in which the 21 minister has granted exemptions under section 56 22 in the public interest, and specifically you 23 discuss an exemption from section 7 of the CDSA 24 issued to individual law enforcement agencies 25 across Canada so that they can produce marihuana 105 1 for the purpose of training officers involved in 2 drug investigations; correct? 3 A That is correct. 4 343 Q Do you know how many of those exemptions have 5 been granted? 6 A No. 7 344 Q Are those the types of exemptions -- well, let 8 me ask this. In granting those exemptions, 9 those section 56 exemptions to police agencies, 10 individual law enforcement agencies, is there a 11 concern about the risk of diversion to the black 12 market? 13 A I can't comment because I'm not involved in the 14 processing or adjudication of those requests. 15 345 Q It goes through a different department? 16 A It goes through a different division within the 17 Office of Controlled Substances. 18 346 Q And which division is that? 19 A It used to be known as the Evaluation and 20 Authorization division. We've recently gone 21 through a reorganization, so it's called the 22 National Compliance and Exemption division. 23 347 Q Paragraph 10 of your affidavit -- well, actually 24 let me back up to paragraph 9. You've given 25 two public interest examples of exemptions 106 1 granted in the public interest; correct? 2 A Yes, that's correct. 3 348 Q Are you aware of other exemptions granted in the 4 public interest besides the two that you've 5 given? 6 A Not off the top of my head. I'm sure there 7 probably are others in history, but I would need 8 to refer to files or consult others in the 9 office. 10 349 Q That's a question that you could answer with 11 some research? 12 A That is correct. 13 350 Q Okay. 14 MR. TOUSAW: I'm going to ask you to do that research 15 and supplement your response, subject to your 16 counsel's direction. 17 MS. SOKHANSANJ: I'm objecting. There's no 18 requirement, and she's not obligated to make any 19 kind of undertaking to further inform herself or 20 to provide further information, and I'm advising 21 her not to. 22 REQUEST 1: Determine if there are other 23 exemptions granted in the public interest aside 24 from the two provided in paragraph 9 of 25 Ms. Kula's affidavit 107 1 ***REQUEST REFUSED*** 2 MR. TOUSAW: 3 351 Q You say at paragraph 10 of your affidavit that 4 the examples that you provide are "demonstrative 5 of the intent behind section 56 of the CDSA and 6 how it can be used to allow activities with 7 controlled substances that are not already 8 authorized under any regulations made under the 9 CDSA but are deemed necessary in the public 10 interest." Do you see that? 11 A Yes, I do. 12 352 Q My question to you is, what do you mean when you 13 say "deemed necessary in the public interest"? 14 A Well, the public interest is a term that's not 15 defined in the act but is generally understood 16 to mean something that takes into account the 17 interests of all Canadians. It's a type of 18 determination that we make on a case-by-case 19 basis that would involve the weighing and 20 balancing of a number of different 21 considerations. 22 353 Q And can you provide me with examples of what 23 those considerations are? 24 MS. SOKHANSANJ: I'm just going to stop and object. 25 Your question is a little vague. She has 108 1 explained that it's on a case-by-case basis, so 2 you have to be specific as to whether you mean a 3 particular case. In other words -- 4 MR. TOUSAW: 5 354 Q Do you know what was weighed and balanced, what 6 considerations were weighed and balanced when 7 coming to a decision about the public interest 8 in Mr. Bennett's case? 9 A Yes. 10 355 Q Okay. And what were those considerations? 11 A The purpose and intent of the CDSA in terms of 12 providing for a control framework for controlled 13 drugs and substances, limiting their unnecessary 14 movement, their other activities with them. 15 Another consideration would be the public 16 health and safety risk associated with the 17 particular substance that was the subject of the 18 request, so in this case cannabis. 19 I would also consider the international 20 environment, so what the conventions say with 21 respect to the subject of the request from 22 Mr. Bennett. What other considerations? 23 I would also consider, you know, issues 24 pertaining to the charter since they were 25 mentioned in his request. 109 1 356 Q And would that consideration of issues 2 pertaining to the charter in Mr. Bennett's case 3 relate specifically to section 2 of the charter 4 and the religious freedom protections contained 5 therein? 6 A Well, I believe in both his statutory 7 declaration but particularly in the cover letter 8 that came with it there were -- sorry, I'm 9 looking for the particular exhibit -- I think 10 it's A here, attachment A. In your letter to 11 the minister, you refer to sections 2, 7 and 15. 12 357 Q And were those sections of the charter 13 considerations that were taken into account in 14 coming to a decision on Mr. Bennett's request? 15 A Well, as I've said in my affidavit, and I can 16 draw your attention to 21, paragraph 21, where I 17 talk about assigning the request to Cheryl 18 Tremblay, I asked her to carry out an initial 19 review of the request. I asked her to focus on 20 Mr. Bennett's claimed right to religious 21 freedom, the manner, if any, in which it was 22 being compromised by the controls relating to 23 the possession and production of marihuana set 24 out in the CDSA and whether the public interest 25 would be served in granting the requested 110 1 exemption. 2 So I make specific reference to the claimed 3 right to religious freedom. I suppose laterally 4 we would also have considered section 7 and 5 section 15. 6 358 Q Okay. And charter values are an important 7 consideration when thinking about the public 8 interest; isn't that right? 9 A I've listed them as one of the considerations 10 that we balance when we take into consideration 11 or when we assess requests for public interest 12 purposes, so yes. 13 359 Q Are there other considerations besides the ones 14 that you've listed that were taken into account 15 in making a decision on Mr. Bennett's request? 16 A Other considerations ... no, I would say that 17 those are, broadly speaking, those are the main 18 ones that we considered. 19 360 Q In the rubric of the international environment, 20 were the experiences or the -- let me start 21 again. 22 In the rubric of international environment, 23 one of the considerations that you mentioned; 24 correct? 25 A M'mm-hmm. 111 1 361 Q Sorry, I didn't mean to catch you while you were 2 drinking. 3 A That's okay. Yes. 4 362 Q In considering that broad category, the 5 international environment, did you or did 6 Ms. Tremblay undertake research into how the 7 religious use of cannabis is treated in other 8 countries? 9 A I do not recall that Ms. Tremblay undertook 10 specific research of that kind. I am aware that 11 we had a discussion about the reference, if any, 12 to the use of controlled substances writ large 13 for religious purposes and the absence of such 14 references in the United Nations drug 15 conventions. I would therefore say no to that 16 question. 17 363 Q Thank you. In paragraph 10, the second sentence 18 you discuss these -- you say: 19 "These exemptions are consistent with and 20 reinforce the purpose of the CDSA, which 21 is to provide a framework to control 22 activities with substances that may 23 produce harm to health and to society such 24 that activities with them are confined to 25 legitimate medical, scientific or 112 1 industrial purposes." 2 Correct? 3 A Correct. 4 364 Q That last sentence, and the last part of that 5 sentence, "legitimate medical, scientific or 6 industrial purposes," closely tracks the 7 language of section 56 of the CDSA in terms of 8 medical and scientific; correct? 9 A Correct. 10 365 Q Section 56 doesn't mention industrial purposes, 11 does it? 12 A That's correct. 13 366 Q Instead of industrial purposes, section 56 talks 14 about the public interest; correct? 15 A That's correct. 16 367 Q Industrial purposes, I assume when I'm asking, 17 would include what you mentioned earlier, the 18 industrial hemp regulations which control 19 cannabis with low THC content; correct? 20 A That is correct. Industrial purposes could also 21 refer to the use of controlled substances in the 22 manufacture of other goods and the distribution 23 of those goods. 24 368 Q There are persons authorized to produce what 25 I'll called hemp, low-THC cannabis. I'll call 113 1 it hemp going forward because it's a little 2 easier. There are producers in Canada that are 3 authorized to grow that product; correct? 4 A There are persons who are licensed, yes. 5 They're licensed under the Industrial Hemp 6 Regulations. 7 369 Q And is there, to your knowledge, a control 8 mechanism in place to minimize or avoid the risk 9 that those licensed persons engage in diversion 10 of -- let's put it this way, engage in the 11 production of cannabis, high-THC cannabis, under 12 the rubric of producing hemp? 13 A Well, the regulations, the Industrial Hemp 14 Regulations to be clear, specify that any entity 15 that is licensed to carry out any activity, any 16 licensable activity under the regulations, is 17 subject to -- or can be subject to inspection, 18 so it is possible that a licensed producer of 19 hemp could be subject to an inspection. 20 In addition, there are reporting 21 requirements in the regulations that require 22 licensed producers in particular to document the 23 source of the seeds they use, the crop that they 24 decide to grow, the yield of their crop, to 25 provide for the laboratory analysis of that crop 114 1 to document that it is of one of the approved 2 cultivars. All of those records are subject to 3 inspection at any time by the minister. So they 4 can be either looked at on site in the course of 5 an inspection, or they can be asked to be 6 submitted to the minister. 7 In addition, there can also be 8 communication between the Minister of Health, 9 the Department of Health, agent thereof -- 10 370 Q M'mm-hmm. 11 A -- and law enforcement in terms of the location 12 of hemp crops, et cetera. 13 371 Q And so there's a control scheme in place; 14 correct? 15 A That is correct. 16 MS. SOKHANSANJ: So just to interrupt briefly, we're 17 at 10 minutes after 12:00. Is 12:30 an okay 18 time for a lunch break for everybody? 19 MR. TOUSAW: I think so. 20 THE WITNESS: That's works for me. 21 MR. TOUSAW: 22 372 Q You mentioned lab analysis to prove that the 23 hemp is one of the permissible cultivars. Does 24 that lab analysis include testing for THC 25 content? 115 1 A I'm not an expert in the type of analysis that's 2 done, but there is a policy on the Health Canada 3 website called the list of approved cultivars. 4 The list of approved cultivars is amended from 5 time to time by Health Canada in consultation 6 with other interested parties, namely 7 Agriculture Canada, Canadian Food Inspection 8 Agency, and obviously the testing that is done 9 to ascertain whether a plant meets -- is in fact 10 one of those cultivars would probably include 11 the identification of THC content, but I 12 honestly could not tell you. I don't have those 13 kind of details at my fingertips. 14 373 Q I appreciate your candour. 15 But you identified charter values as being 16 one of the considerations when making a 17 determination about the public interest; 18 correct? 19 A Yes, I have stated that previously. 20 374 Q And would you agree that it is in the public 21 interest to respect charter values as much as 22 possible? 23 A I think it's a competing -- as I've indicated 24 before, it's a matter of balancing the 25 individual freedoms that are protected under the 116 1 charter with the intent of the CDSA and the aims 2 and objectives of that piece of legislation. So 3 I don't think I agree specifically with your 4 statement as stated. 5 375 Q Non-discrimination on the basis of religion is 6 also a fundamental right enshrined in the 7 charter; correct? 8 MS. SOKHANSANJ: I don't mind you asking what her 9 understanding is of the charter values, but 10 asking here what is enshrined or not enshrined 11 in the charter, we can hash that out in argument 12 before the court. She's not here to talk about 13 that. 14 MR. TOUSAW: I'll ask a slightly different question. 15 376 Q You're aware that section 15 of the charter 16 essentially prevents discrimination on the basis 17 of religion; correct? 18 A Sorry, section 15? 19 377 Q Section 15. 20 A Honestly, I'm not an expert in the charter. 21 378 Q Fair enough. 22 A And I really don't -- I couldn't -- without 23 having a copy of it in front of me, I could not 24 confirm or deny. 25 379 Q Fair enough. Thank you. 117 1 It is true, is it not, that it is in the 2 public interest to not discriminate against 3 persons on the basis of their religious beliefs? 4 A I think I've already answered that question. 5 What I -- in the context of public interest, in 6 the context of section 56 of the CDSA, we're 7 talking about balancing those freedoms that are 8 protected under the charter with the intents of 9 the control framework set out in the 10 legislation, amongst other things, including the 11 health and safety risks of the -- posed by the 12 use of the substance or the conductible 13 activities of the substance and international 14 considerations as they relate to the global drug 15 control framework. 16 380 Q And so non-discrimination on the basis of 17 religion goes into that consideration; correct? 18 A Well, I've listed charter considerations as 19 globally one of the mix, so yes, in the context 20 that charter considerations could include 21 consideration for the protection of religious 22 freedom, yes. 23 381 Q And non-discrimination on the basis of religion? 24 A I guess so. I mean, I'm not -- like I said, I'm 25 not an expert in the charter, so I can't quote 118 1 you which provisions of the charter we consider 2 writ large. 3 382 Q At least Mr. Bennett identified in the cover 4 letter accompanying his statutory declaration 5 sections 2, 7 and 15 of the charter; correct? 6 A Yes, that is correct. 7 383 Q And those were sections of the charter that were 8 considered by your office in coming to a 9 recommendation to your director; correct? 10 A That is correct. 11 384 Q Okay. I will take you to paragraph 11 of your 12 affidavit in which you indicate that: 13 "Section 56 provides the minister with 14 broad discretion to exempt any person or 15 class of persons from the prohibition set 16 out in the CDSA." 17 Do you see that? 18 A Yes, I do. 19 385 Q In the area of the public interest, are you 20 aware of anything that constrains the minister's 21 discretion? 22 A I'm not sure I understand the question. Can you 23 clarify for me, please? 24 386 Q Well, there's no -- I think you said earlier 25 there's no existing guidance document associated 119 1 with religious requests under section 56 of the 2 charter; correct? 3 A Of the CDSA. 4 387 Q Sorry, of the CDSA. 5 A Yes, that is correct. 6 388 Q Okay. So when you say the minister has broad 7 discretion, I'm asking in the area of 8 religious -- requests for religious exemptions 9 made on the basis of the public interest, the 10 minister's discretion is essentially unfettered; 11 is that correct? 12 MS. SOKHANSANJ: All right. So she's not going to 13 provide a legal opinion as to what the scope of 14 discretion is under a legislative provision. 15 I don't mind you asking her that 16 specific -- what are the specific guidance or 17 policy documents or regulatory provisions with 18 respect to 56, but to ask her opinion as to how 19 broad the discretion is, I suspect that will be 20 part and parcel of our arguments on JR and 21 really isn't properly part of this 22 cross-examination. 23 MR. TOUSAW: 24 389 Q And in paragraph 11 of your affidavit, you talk 25 about the minister having broad discretion under 120 1 section 56; correct? 2 A M'mm-hmm. Yes. 3 390 Q And so when you say "broad discretion," what do 4 you mean by that? 5 A I mean that provided that the minister assures 6 his or herself that a decision has been -- 7 recommendation has been provided based on 8 fairness, accountability, perhaps transparency 9 and so on, that it is -- the minister is capable 10 of making a decision one way or the other with 11 respect to any requests that are offered to his 12 or her -- to them. Sorry. His or her. Bad 13 grammar. Excuse me. 14 391 Q I knew what you meant. 15 At the end of that paragraph you talk about 16 religious purpose requests under section 56 17 being considered on a case-by-case basis, and 18 you've said that several times in your responses 19 here this morning. 20 Understanding that each request is 21 considered on a case-by-case basis, you don't 22 start from scratch with each request, however. 23 You consider the history of such requests that 24 have come into your office, if such a history 25 exists; correct? 121 1 A No, I wouldn't say that's correct. I would say 2 that we start from the individual request and we 3 determine the scope of that request. I would 4 determine who might be the most appropriate 5 staff to assist in the assessment of that 6 request, and we would discuss together whether 7 there are other relevant cases or requests that 8 might be appropriate to consider in assessing 9 that request, but it is not a cumulative 10 assessment. 11 It's not like we receive one request and 12 then when we get the second request we sort of 13 build on the analysis done for the first request 14 and make a decision in the second request. That 15 does not occur. 16 392 Q Okay. At paragraph 14 of your affidavit you 17 discuss your reporting to the director. That's 18 Mr. Denault; correct? 19 A No. I said currently the director is 20 Diane Allan. 21 393 Q Oh, yes, of course. 22 A At the time of the decision in this request it 23 was Mr. Denault. 24 394 Q Yes. Thank you. 25 So at the time of the decision of this 122 1 request you reported to Mr. Denault? 2 A That is correct. 3 395 Q And you prepared a recommended response for 4 Mr. Denault's review, consideration and 5 decision-making; correct? 6 A That is true. 7 396 Q And that recommended response, if I understand 8 your previous responses correctly, was 9 essentially a draft of the letter that appears 10 at Exhibit D to your affidavit? 11 A That is correct. 12 397 Q Was there something more included in that 13 recommended response, or was it simply, here's a 14 draft denial letter, this is my recommended 15 response? 16 A Well, as I've said before, it wasn't like I just 17 put the file on his desk and said, sign this 18 letter. We had a meeting in which I sat and 19 reviewed the request in some detail. I reviewed 20 the assessment that we had undertaken. I 21 reviewed the legal opinion that we had obtained 22 in relation to the request. I reviewed in 23 global the considerations that we had applied in 24 coming up with the recommended response and 25 asked him if he had any questions about that 123 1 information or had suggestions for further 2 undertakings he wanted me to do in respect of my 3 assessment or review of the request, and, you 4 know, left the file with him for his own review 5 and consideration, and ultimately received 6 communication from him at a later point in time 7 that he was satisfied with my review and 8 assessment and that he concurred with the 9 recommended response and that he was prepared to 10 sign the recommended response. 11 Usually when the recommended response is 12 provided to the director, or whoever is going to 13 be making the decision, it's provided on a blank 14 piece of paper, not in a form that's ready for 15 signature, is what I'm trying to say. 16 So at the point when he communicated to me 17 that he was satisfied with the analysis and the 18 review that we had undertaken, my office would 19 have prepared the final letter that is attached 20 to my affidavit. 21 398 Q I see. So the recommended response consisted of 22 something other than just a draft copy of the 23 letter that appears at Exhibit D to your 24 affidavit? 25 A No. It consisted of a draft of this letter. 124 1 399 Q Okay. And was this a face-to-face meeting with 2 Mr. Denault? 3 A Yes. 4 400 Q And did you take notes during that meeting? 5 A I do not recall, but I'm -- actually I'm sorry, 6 that's incorrect. No, I did not take notes. 7 401 Q Do you know if Mr. Denault took notes during 8 that meeting? 9 A I did not observe him taking any notes. 10 402 Q In your discussions -- well, let me ask this. 11 While Ms. Tremblay was conducting her policy 12 analysis, did you have meetings with her to 13 discuss the progress of that analysis? 14 A Yes. 15 403 Q And did you take notes during the course of 16 those meetings? 17 A I don't believe so. Certainly they're not -- if 18 I did take some notes, they would not go on the 19 file. They would just be for my own, you 20 know -- I am a very visual person, so how I work 21 is sometimes when someone is talking to me I may 22 jot a few things down and then I may, you know, 23 muse about them as I'm talking to them, and 24 then, you know, I may throw them out. I may 25 say -- you know, they're not ... 125 1 404 Q Draw a picture or two? 2 A Yeah, exactly. Doodle. I don't know. I mean, 3 you know -- 4 405 Q Yes. Fair enough. 5 A -- I don't -- generally I do not keep those 6 types of records, so the notes would not be on 7 the file if I took any. 8 406 Q Does Health Canada or your division within 9 Health Canada have a policy on the retention or 10 destruction of notes taken in the course of your 11 duties? 12 A Well, certainly I keep a notebook where I would 13 record phone calls that I've received, 14 particularly if they're stakeholder inquiries 15 that I'm later going to action in some way. I 16 may take notes during meetings, particularly if 17 there are action items that are assigned to me. 18 So those notebooks are considered to be 19 within the scope of the Government of Canada 20 records management policy and become the 21 property of the government, and so those 22 notebooks are on file in my office. 23 407 Q And do you recall, sitting here today, whether 24 there are notes within those notebooks that you 25 are required to keep that relate to 126 1 Mr. Bennett's request? 2 A I don't recall. 3 MR. TOUSAW: Of course subject to your counsel's 4 direction, I'm going to ask that you determine 5 whether or not those notes exist. 6 MS. SOKHANSANJ: I'm sorry, is that the end of your 7 request? 8 MR. TOUSAW: That's the end of my request. 9 MS. SOKHANSANJ: Well, I'm going to object to it for 10 the same reason I objected to the previous 11 request. 12 MR. TOUSAW: Okay. And I assume you will object to 13 my request that those be produced as well. 14 MS. SOKHANSANJ: I'm going to object to that for the 15 same reason I objected previously. 16 MR. TOUSAW: I had a suspicion. 17 REQUEST 2: Provide any notes within the 18 notebooks that Ms. Kula is required to keep that 19 relate to Mr. Bennett's request 20 ***REQUEST REFUSED*** 21 MR. TOUSAW: 22 408 Q In your meetings with Ms. Tremblay, did you 23 observe her taking notes? 24 A I really don't recall. I know she would have 25 brought the file with her. She would have 127 1 referred to different documents in the file. I 2 mean, in a similar vein to myself and the 3 notebooks I keep she might have a notebook that 4 would have some notes in it. I don't recall in 5 the meetings that we had, which were mostly -- 6 in fact, they were all in my office, I don't 7 recall her sitting there taking copious notes. 8 409 Q And if she took notes in the course of her 9 research on Mr. Bennett's request or related 10 research to that request, would those notes fall 11 under the Government of Canada's document 12 retention policy? 13 A I think subject to the determination that they 14 were germane to the decision-making and 15 therefore would be on the file, yes. If they 16 were just, like I said, her thinking, you know, 17 constructive policy development kind of notes, 18 you know, questions she might have asked herself 19 or, you know, websites to go back to, I don't 20 know, whatever, those kind of thinkings, notes 21 of that kind, they might be not be on the file. 22 They might be in a notebook. They might be 23 nowhere. They might be -- I meant that's -- 24 really it's a judgment call on the part of all 25 public servants as to what forms part of the 128 1 final record, government record. 2 410 Q And in relation to Mr. Bennett's request, was a 3 risk benefit analysis conducted vis-a-vis the 4 granting or denial of that request? 5 A Well, as I've mentioned previously, the 6 consideration of requests for exemptions under 7 section 56 of the CDSA in general are always a 8 case of weighing and balancing different 9 considerations. 10 As I've identified to you, those 11 considerations include some risk and some 12 benefit-type considerations. So if you're 13 asking did we do a formal risk benefit analysis 14 that resulted in a document called risk benefit 15 analysis in regards to the Bennett request, the 16 answer is no. 17 Did we in so much functionally consider 18 risks and benefits associated with the context 19 of the request, I would say yes. 20 MR. TOUSAW: How is our time? 21 MS. SOKHANSANJ: Well, I have 3 minutes to 12:30. 22 MR. TOUSAW: It's a good time. 23 MS. SOKHANSANJ: If you're moving on to another area, 24 I would say let's stop now. 25 MR. TOUSAW: Let's stop now. 129 1 (PROCEEDINGS ADJOURNED AT 12:28 P.M.) 2 (PROCEEDINGS RECONVENED AT 1:39 P.M.) 3 MR. TOUSAW: 4 411 Q Ms. Kula, before we broke for lunch -- well, you 5 didn't have any discussions about this case 6 during the lunch break with anyone other than 7 your counsel, did you? 8 A I didn't even have any discussion with my 9 counsel. I left the building and left everybody 10 here. 11 412 Q Let it clear your mind entirely. 12 A Tried to. 13 MR. TOUSAW: I'm going to put a bound document in 14 front of you that I will ask to be marked as 15 Exhibit 4. 16 EXHIBIT 4: Binder regarding access to 17 information request made to Health Canada 18 related to all documents containing the words 19 Daime, ayahuasca, or Santo Daime made to Health 20 Canada 21 MS. SOKHANSANJ: So while we were off the record, 22 Mr. Tousaw and I had a brief conversation. 23 Mr. Tousaw explained to me that there's nothing 24 in this binder of documents that's been labelled 25 as Exhibit 4 to this cross-examination which 130 1 references Mr. Bennett's request for an 2 exemption under section 56 of the CDSA. He also 3 explained that this book of documents comprises 4 a response to a request made under the Access to 5 Information Act with respect to ayahuasca? 6 MR. TOUSAW: That's correct. 7 MS. SOKHANSANJ: All right. And as such, the 8 respondent's position is that this book of 9 documents is not relevant to this 10 cross-examination and that Ms. Kula properly 11 ought not to be asked any questions and ought 12 not to answer any questions with respect to this 13 book of documents, and by way of even further 14 clarification, the fact that this book of 15 documents is marked as Exhibit 4 does not for a 16 moment mean that the respondent consents to any 17 document in this book being entered as evidence 18 in this judicial review. 19 MR. TOUSAW: 20 413 Q Having that on the record, I'm going to ask you, 21 Ms. Kula, to turn to page 362 -- they're 22 numbered at the bottom of the page -- of what's 23 been marked as Exhibit 4 in these proceedings. 24 MS. SOKHANSANJ: Yes. 25 MR. TOUSAW: 131 1 414 Q And on that page there is an e-mail that appears 2 to be from an Erin Kingdom. Are you familiar 3 with that name? 4 A Yes. 5 MS. SOKHANSANJ: All right. Just a moment. I have 6 objected to questions being asked about this 7 book of documents. I am advising my client not 8 to answer any questions about the book of 9 documents, and for clarification, for 10 everybody's purposes, that means that I don't 11 mind, Mr. Tousaw, of course if you put your 12 questions on the record, you're entitled to do 13 that, but I'm going to be objecting to each and 14 every one that relates to a document in this 15 book of documents and advising my client not to 16 answer. 17 MR. TOUSAW: 18 415 Q The e-mail from Erin Kingdom to a Jocelyn Kula, 19 K-u-l-a, at the top of page 362 of Exhibit 4 20 reads -- 21 MS. SOKHANSANJ: I am going to stop right now. I 22 object to your reading the e-mails into the 23 record. They are not part of the evidence 24 in this judicial review, and the respondent 25 objects to their being part of the evidence in 132 1 this judicial review, and if you persist, 2 Mr. Tousaw, I may be in the unfortunate position 3 of having to call the cross-examination to a 4 close. 5 We have a disagreement about the scope of 6 relevance. I am not going to agree to an end 7 run around our disagreement by your simply 8 reading in documents that are not yet in 9 evidence and the respondents say should never be 10 in evidence, all right? 11 MR. TOUSAW: 12 416 Q You recall me asking you questions about whether 13 or not any guidance document existed with 14 respect to section 56 exemptions in the public 15 interest, and your responses were on several 16 occasions to that question no, isn't that 17 correct? 18 MS. SOKHANSANJ: He can ask. 19 A That is correct. I did say no. 20 MR. TOUSAW: 21 417 Q Page 362 of Exhibit 4 is an e-mail to you 22 attaching a document called "Guidance-Section 56 23 Exemption in Public Interest September 2006," 24 isn't it? 25 A Yes. 133 1 418 Q Why didn't you tell me about that document when 2 you were asked, and why did you deny it exists? 3 A I didn't mention the document because the 4 document has never been used. It has never been 5 approved by any form of management within Health 6 Canada, and it has never been applied in the 7 assessment of a section 56 request of any type, 8 whether public interest purposes or not. 9 419 Q You don't deny now, unlike earlier, that it 10 exists, isn't that correct? 11 A It was the product of -- the work product of an 12 individual within the Office of Controlled 13 Substances. It was at one point perhaps her 14 intention to progress the document to final 15 stage. That process never took place, and so in 16 my view the document does not exist because it 17 is merely her musings, thoughts, basic 18 considerations that have never been agreed to or 19 applied in any way. 20 420 Q In fact, Health Canada directed the creation of 21 that document. It's far from someone's musings. 22 Someone was told to put it together, weren't 23 they? 24 A I cannot comment on that. 25 421 Q Well, you've seen the document before, haven't 134 1 you? 2 A I've seen a version of the document, yes. 3 422 Q In fact, this was e-mailed to you on the 27th of 4 April, 2007, was it not? 5 A That's correct. 6 MR. TOUSAW: I have a series of questions I was going 7 to ask about this book. 8 MS. SOKHANSANJ: M'mm-hmm. 9 MR. TOUSAW: I don't want to waste a tremendous 10 amount of our time asking the questions and 11 having you object to your witness answering the 12 questions. 13 If I take your objection properly, if I 14 understand it, you are going to object to any 15 further questions I ask about the contents of 16 Exhibit 4; is that correct? 17 MS. SOKHANSANJ: Yes, except I didn't object to your 18 previous questions obviously because they 19 related to questions you've already put to 20 Ms. Kula and her answers to those questions. If 21 you have other questions like that, I'm not 22 going to be unfair and say you can't ask those, 23 but if you have questions about other 24 substantive matters arising out of the book, 25 yes, I will be objecting. 135 1 MR. TOUSAW: And obviously you also didn't object 2 because they relate to your witness's 3 credibility. 4 423 Q The interim guidance document that was generated 5 in connection with the ayahuasca request went 6 through a number of iterations, did it not? 7 MS. SOKHANSANJ: I'm going to object to that 8 question. Don't answer it. 9 MR. TOUSAW: 10 424 Q And I will direct your attention to page 300 of 11 Exhibit 4, the top of -- I'll wait for you to 12 get there. 13 A Okay. 14 425 Q At the top of page 300 is titled "Application 15 for Section 56 Exemption under CDSA in Public 16 Interest (religious purposes) Daime Tea." Is 17 that the interim guidance document that we've 18 just been discussing that was e-mailed to you in 19 April of 2007? 20 A I honestly can't tell you. I don't have a copy 21 of the document in front of me that I once saw 22 at one point in time, and I can't tell you 23 whether this page represents part of that 24 document or not. 25 426 Q I will ask you to turn to page 276. 136 1 MS. SOKHANSANJ: Sorry? 2 MR. TOUSAW: 3 427 Q 276 of Exhibit 4 and continuing on to page 277, 4 which appears to me to be a two-page letter to a 5 Dr. Jessica Rochester from the director general, 6 then director general of the Drug Strategy and 7 Controlled Substances, Ms. Beth Pieterson? 8 MS. SOKHANSANJ: All right. I'm going to object to 9 any further questions on this document. 10 MR. TOUSAW: 11 428 Q This document is a letter -- 12 MS. SOKHANSANJ: I'm objecting to your reading 13 documents into evidence that aren't in evidence. 14 MR. TOUSAW: I'm not going to read it. 15 MS. SOKHANSANJ: Or summarizing them or purporting to 16 give evidence by way of disguised question 17 asking as to what's the content of those 18 documents. 19 MR. TOUSAW: Perhaps if you listen to the question 20 before raising your objection we would be more 21 able to properly deal with it. 22 MS. SOKHANSANJ: Well, it may be too late by then, 23 Mr. Tousaw. You've already once read in 24 document contents by way of guise question 25 asking. 137 1 MR. TOUSAW: That's not a guise question asking. I'm 2 trying to figure out if the witness has seen 3 this document before. 4 429 Q Have you seen this document before? 5 MS. SOKHANSANJ: And I said she's not going to answer 6 questions about documents that are not in 7 relation to Mr. Bennett's request unless they go 8 to something she has already testified on. 9 MR. TOUSAW: 10 430 Q Previously you testified that the ayahuasca 11 exemption had not been approved, isn't that 12 correct? 13 A I said that the -- I believe the words that I 14 used were that the exemption had not been 15 granted. 16 431 Q And I asked if it had been approved in 17 principle. 18 MS. SOKHANSANJ: And I objected to that question and 19 so she didn't answer it. 20 MR. TOUSAW: 21 432 Q It was approved in principle, wasn't it? 22 MS. SOKHANSANJ: I object to the question. She is 23 not going to answer it. 24 MR. TOUSAW: 25 433 Q In fact, page 276 makes clear -- 138 1 MS. SOKHANSANJ: I'm objecting to your reading that 2 material into this cross-examination. You and I 3 are going to have to hash this one out in court, 4 Mr. Tousaw. We're not going to do it here 5 today. 6 MR. TOUSAW: I wasn't about to read anything, and 7 again, if you perhaps would listen to the 8 question before raising your objection we 9 wouldn't need to deal with unnecessary 10 objections. 11 MS. SOKHANSANJ: Well, let's listen to it. 12 MR. TOUSAW: Thank you. 13 434 Q This letter grants the exemption, approves the 14 exemption in principle, does it not? 15 MS. SOKHANSANJ: I'm objecting to Ms. Kula answering 16 that question. 17 MR. TOUSAW: And you're directing her not to answer? 18 MS. SOKHANSANJ: I'm advising her not to answer. 19 MR. TOUSAW: Okay. Thank you. 20 435 Q In fact, the only reason the section 56 21 exemption for the Santo Daime hasn't been 22 approved is because of issues arising out of the 23 export of the Daime tea from Brazil, isn't that 24 correct? 25 MS. SOKHANSANJ: I'm objecting to the question and 139 1 advising Ms. Kula not to answer. 2 MR. TOUSAW: 3 436 Q It's true, is it not, that the recommendation 4 made to the director in connection with the 5 ayahuasca exemption was to grant it, isn't that 6 correct? 7 MS. SOKHANSANJ: I'm objecting to the question and 8 advising Ms. Kula not to answer it. 9 MR. TOUSAW: 10 437 Q At page 222 of Exhibit 4, the last paragraph of 11 the page -- 12 MS. SOKHANSANJ: Sorry, just give me a moment to turn 13 there. 14 MR. TOUSAW: M'mm-hmm. 15 THE WITNESS: I'm here. 16 MR. TOUSAW: You're there? 17 THE WITNESS: Yes. 18 MR. TOUSAW: Are you there, counsel? 19 MS. SOKHANSANJ: Yeah. 20 MR. TOUSAW: Thank you. 21 438 Q I don't want to read this out to you. I will 22 remind you I asked you a question earlier in the 23 day about freedom of religion, the Charter of 24 Rights and Freedoms, and whether or not it was 25 in the public interest to respect the freedom of 140 1 religion as much as possible when assessing 2 section 56 exemptions. Do you remember that 3 question? 4 A Yes, I do. 5 439 Q Yes. 6 MS. SOKHANSANJ: I don't actually think you asked 7 that. You asked whether it was in the public 8 interest to respect charter values as much as 9 possible. 10 MR. TOUSAW: Well, the record will reflect what was 11 or was not answered and what was or was not 12 asked. The witness has said that that's what 13 her memory is. 14 440 Q Page 222 of Exhibit 4 at the very bottom deals 15 directly with that issue, does it not? 16 MS. SOKHANSANJ: I object to that question. I advise 17 you not to answer it. This appears to be a 18 page from a document created in respect of an 19 application -- sorry, a request for an exemption 20 under section 56 that is not Mr. Bennett's 21 request. 22 MR. TOUSAW: 23 441 Q And if you turn back to page 221, it appears to 24 be the beginning of the document; correct? 25 MS. SOKHANSANJ: Do you have a question? 141 1 MR. TOUSAW: 2 442 Q Is it the beginning of a document? 3 MS. SOKHANSANJ: I object to her answering questions 4 about documents that don't relate to 5 Mr. Bennett's request. 6 MR. TOUSAW: And you're directing her not to answer? 7 MS. SOKHANSANJ: That's right. 8 MR. TOUSAW: 9 443 Q And if you turn to page 225, second bullet 10 point, I'll ask you this -- 11 A I'm sorry, which bullet are you referring to on 12 the page? 13 444 Q The second bullet point under "Cons." 14 A I don't have that on my page. 15 MS. SOKHANSANJ: He doesn't want to read it out. 16 MR. TOUSAW: 17 445 Q At 225. 18 A Oh, I'm sorry, I was on the wrong page. 19 MS. SOKHANSANJ: In fairness, I think, Mr. Tousaw, 20 that you're trying not to read it out. 21 MR. TOUSAW: I'm trying not to read it. 22 MS. SOKHANSANJ: I appreciate that. 23 MR. TOUSAW: Yes. 24 446 Q Let me ask you this question. When making a 25 decision whether or not to grant exemptions for 142 1 religious purposes, is one of the relevant 2 considerations whether or not the granting of 3 such exemptions would set precedents for future 4 requests? 5 A I'm not sure I understand the question. 6 447 Q Is one of the considerations when making a 7 decision of whether or not to grant exemptions 8 from the application of the CDSA for religious 9 purposes whether or not the granting of such a 10 request would set a precedent for future 11 requests? 12 A I don't believe so. When I spoke earlier about 13 the considerations I didn't include that because 14 it is my -- it has been my understanding and my 15 practice since I have been in my job to take 16 each request on a case-by-case basis and examine 17 it on its unique merits. I don't think that has 18 anything to do with precedents or creating of 19 precedents or concern for creating a precedent. 20 448 Q Is one of the considerations taken into account 21 in making decisions on section 56 requests 22 related to religious purposes that the granting 23 of such a request may encourage or lead to other 24 requests associated with other charter 25 protections using the public interest factor in 143 1 section 56? 2 A Again, I'm sorry, I'm going to have to ask you 3 to clarify the question. I'm not sure what 4 you're asking me. 5 449 Q I'm asking if one of the considerations taken 6 into account when making a decision on a 7 section 56 request is that it may encourage or 8 lead to requests associated with other charter 9 protections using the public interest factor 10 contained in section 56? 11 A And again, as I have already stated previously 12 today, it is my practice to assess each of these 13 requests for its unique aspects and on a 14 case-by-case basis, so I don't consider -- I 15 mean if -- if there are claims or concerns 16 raised about different charter rights in a 17 particular request, then obviously we would 18 assess that request in that context, but I can't 19 comment on procedurally what -- how I would 20 assess different requests in the future or have 21 assessed other requests in the past. 22 450 Q Are you aware of something within Health Canada 23 called a program management committee? 24 A Yes. 25 451 Q What is that? 144 1 A It's now something called the directorate 2 management committee. At the time it was the 3 management committee operated by the -- at the 4 program level, so prior to Controlled Substances 5 and Tobacco Directorate we had something called 6 the Drug Strategy and Controlled Substances 7 Program, of which the Office of Controlled 8 Substances is part, and the program management 9 committee is or was the director level led by 10 the director general management committee that 11 existed at the time. 12 452 Q Fairly high level within Health Canada; correct? 13 A I wouldn't say it's fairly high level. They 14 exist. Every directorate usually has some form 15 of a directorate management committee, and there 16 are probably -- I mean, within my branch alone 17 there are seven or eight directorates, so I 18 mean, I wouldn't say they're very high level. 19 453 Q Were you in your present position in May of 20 2006? 21 A No. 22 454 Q Who was your predecessor? 23 A The indeterminate occupant of the position was 24 someone by the name of Cynthia Sunstrum, but it 25 is my recollection -- I would have to confirm -- 145 1 that at that time that you referred to 2 Ms. Sunstrum was not in the position and someone 3 else was acting in the position, and I don't -- 4 it could have been Teresa Shop, but I'm not 5 positive. 6 455 Q There was, however, something within Health 7 Canada called the Policy and Regulatory Affairs 8 division in May of 2006; right? 9 A Yes, that is correct. 10 456 Q A few moments ago when I asked you about the 11 interim guidance document related to exemptions 12 under section 56 and the public interest for 13 religious purposes you said it had never been 14 used, was somebody's musings and no exemptions 15 had been assessed against those criteria; is 16 that correct? 17 A That is -- that is what I said because that is 18 my belief. 19 457 Q And I'm going to ask you to turn to page 213, 20 please. 21 MS. SOKHANSANJ: Before she does that, I'm going to 22 turn to page 213 because I don't know what every 23 page is in this document, I've never seen it 24 before, and as I've already said, it's my 25 impression that none of the pages -- my 146 1 understanding from you, that none of the pages 2 relate to Mr. Bennett's request. So I'm just 3 going to have a look and see -- 4 MR. TOUSAW: No, but I said none of them has referred 5 specifically to Mr. Bennett's request. I think 6 they all relate to Mr. Bennett's request. 7 MS. SOKHANSANJ: Well, that's where you and I 8 disagree, but as I said, that's something the 9 court may resolve. 10 MR. TOUSAW: I should also say that at this point 11 most of my questions relate to the credibility 12 of your witness and her veracity in providing 13 documents and answering questions this morning 14 and this afternoon. 15 MS. SOKHANSANJ: So this is a document from May 18, 16 2006? 17 MR. TOUSAW: That's correct. 18 MS. SOKHANSANJ: Have we established whether Ms. Kula 19 was in per position in May 18? 20 MR. TOUSAW: She was not. 21 MS. SOKHANSANJ: So she was not in her position at 22 this time. The Bennett request had not yet been 23 made. She clearly could have had no role 24 whatsoever with respect to this document. I 25 suppose at most you can ask whether she's aware 147 1 of it or was aware of it before today. 2 MR. TOUSAW: 3 458 Q Before today were you aware of the document that 4 begins at page 213 of Exhibit 4? 5 A Yes, in the context of my division has been 6 responsible for -- notwithstanding my 7 involvement, has been responsible for the 8 assessment of the four requests that I've 9 previously mentioned in relation to a request 10 for exemption under the CDSA in the public 11 interest, and I am familiar with the histories 12 of those files, so I have probably seen this 13 document before. 14 459 Q Would it surprise you to learn that the 15 ayahuasca request for section 56 exemption for 16 the religious use of Daime tea was assessed 17 against the criteria outlined in the draft 18 guidance document exemption under section 56 in 19 the public interest for religious purposes? 20 Would it surprise you to learn that? 21 A Are you telling me that that is what has 22 happened, or are you asking me whether I'm -- I 23 don't understand what you're asking me. 24 460 Q Well, I'm trying not to read this document so 25 that your counsel doesn't object. 148 1 A Okay. But could you refer to a section of the 2 document? 3 461 Q I could. 4 MS. SOKHANSANJ: I'd rather he didn't. I've asked 5 him not to. You can ask -- or we can read back 6 the question, but, Mr. Tousaw, as I understand 7 it, you're asking whether Ms. Kula would be 8 surprised to learn -- and I didn't quite catch 9 the exact wording of the rest of it. 10 MR. TOUSAW: 11 462 Q Let me ask a better question. 12 The request for section 56 exemption in the 13 ayahuasca case was assessed against the criteria 14 outlined in the draft guidance document 15 exemption under section 56 in the public 16 interest for religious purposes, was it not? 17 A I cannot confirm that because I was not in the 18 Office of Controlled Substances at the time. 19 463 Q But you were able to, moments ago, deny that 20 that occurred, so I'm wondering why you're able 21 to deny it occurred when you are now saying 22 you're unable to confirm that it occurred? 23 A Because it is not my understanding that that is 24 the case. When I arrived in my position and 25 assumed responsibility for the file that you are 149 1 speaking of, I asked for a briefing on the file, 2 the events that -- up to that date, what the 3 next steps were on the file, et cetera, and in 4 the course of that briefing I was not advised 5 that this draft document had been applied in the 6 way that you are suggesting. It has never been 7 my understanding that that was the case. 8 464 Q So the more accurate answer to my question would 9 have been that you don't know whether or not it 10 occurred? Wouldn't that have been more 11 accurate? 12 MS. SOKHANSANJ: I'm going to object. Her answer was 13 to your earlier question that the document had 14 never been applied to a section 56 request. 15 That's the truth as she said it based on her 16 understanding. That's all she can speak to, is 17 her understanding. 18 MR. TOUSAW: 19 465 Q You will agree with me, will you not, that a 20 more accurate answer would've been that you 21 didn't know? 22 MS. SOKHANSANJ: Don't answer that. That's an 23 improper question. Move on. You can make 24 argument later, Mr. Tousaw. You don't have to 25 make argument now during cross-examination. 150 1 MR. TOUSAW: I'm not making argument. I'm asking 2 questions. 3 That will be all my questions on Exhibit 4, 4 so you can take the cumbersome document out of 5 your way. 6 I had, for the record, a great deal more 7 questions to ask about this document, but if 8 your counsel is going to direct you not to 9 answer them, I think it probably would be a 10 waste of our time and perhaps will be for 11 another day. 12 466 Q Let's go back to your affidavit at Exhibit 1. 13 Now, you swore this affidavit under oath, isn't 14 that correct? 15 A That is correct. 16 467 Q This is similar to the oath that you took today, 17 isn't that correct? 18 A That is correct. 19 468 Q And you understand that your obligation is to 20 testify truthfully, isn't that correct? 21 A Yes. 22 469 Q And you understand that that applied to both 23 your affidavit and to your testimony today; 24 correct? 25 A I think I've already answered that question. 151 1 Yes. 2 470 Q At paragraph 15 of your -- paragraph 15 of your 3 affidavit you talk about, and we talked about 4 earlier before the lunch break, the balancing of 5 various considerations. You go on to say that: 6 "Assessing a request for a section 56 7 exemption requires formulation of a 8 recommendation that will allow the 9 minister to exercise her broad discretion 10 in a manner that is fair, rational, 11 reasonable, in good faith and in line with 12 the public interest she serves as 13 minister." 14 Correct? 15 A That is correct. 16 471 Q And then you go on to talk about the purposes 17 and objectives of the CDSA; correct? 18 A Yes. 19 472 Q In the first paragraph of -- first sentence of 20 paragraph 15 you discuss weighing and balancing 21 various considerations, including purposes and 22 objectives of the CDSA. We've talked about that 23 and Mr. Bennett's, and I quote, "claimed 24 religious beliefs." Do you have -- did you have 25 in your possession any evidence that suggests 152 1 Mr. Bennett's religious beliefs are anything but 2 sincere? 3 A No. 4 473 Q Do you believe that he holds a sincere religious 5 belief that cannabis provides him with a 6 religious or a spiritual experience? 7 A I have no reason not to believe that. 8 474 Q So in coming to a recommendation on 9 Mr. Bennett's request for an exemption, did you 10 advise the director that you had no reason to 11 believe that Mr. Bennett's religious beliefs 12 were anything but sincere? 13 A I'm sorry, can you repeat the question? I just 14 want to be clear what you're asking. 15 475 Q Yes. In formulating a recommendation to the 16 director, did you advise Mr. Denault that you 17 had no reason to believe that Mr. Bennett's 18 claimed religious beliefs were anything but 19 sincere? 20 A That is what I advised Mr. Denault. 21 476 Q And you're unaware of any other evidence or 22 material that would have been provided to 23 Mr. Denault that would have cast some doubt on 24 the sincerity of Mr. Bennett's religious 25 beliefs? 153 1 A No. 2 477 Q When you talk about, at paragraph 15 of 3 Exhibit 1, the formulation of a recommendation 4 that allows the exercise of discretion in a 5 manner that is fair, rational, reasonable and in 6 good faith, I'd like to know what you mean by 7 "fair"? 8 A Well, I mean the very definition of fair seems 9 obvious to me, but I think, you know, that the 10 minister is going to be making a decision that 11 is balanced and reasonable, and, you know, takes 12 into account the various considerations that are 13 required or that would be logical in light of 14 the specific request and balances those against 15 the public interest she serves as the minister 16 responsible for administering the CDSA. 17 478 Q And those considerations and balancing exercise 18 we talked about earlier today; correct? 19 A That's correct. 20 479 Q When you use the word "rational," what criteria 21 are you using to determine what is rational in 22 relation to Mr. Bennett's request? 23 MS. SOKHANSANJ: I'm just going to object. She is 24 not saying that she -- you applied criteria to 25 determine what would be rational in 154 1 Mr. Bennett's request. 2 If you're asking her what she means by the 3 word "rational" in the paragraph, that's 4 acceptable, but otherwise -- 5 MR. TOUSAW: Let's take that answer first. 6 480 Q What do you mean by "rational" -- 7 A I'm sorry, so what do I mean by "rational"? 8 481 Q -- in that paragraph? 9 A Well, I think, again, I mean I suppose it goes 10 hand-in-hand with reasonable, but I think it's 11 that the decision is reflective of all of the 12 considerations that are germane to the request 13 at hand. 14 482 Q And those are the considerations we talked about 15 earlier? 16 A That is correct. 17 483 Q And same question regarding your use of the 18 words "good faith"? 19 A Well, I think this is a broad principle that is 20 applied to all ministers of the Crown. When 21 they take their duties as ministers, they agree 22 to serve the Canadian public and the Government 23 of Canada in a certain way and to act in good 24 faith, so by those words I mean that 25 terminology. I mean that's what I'm referring 155 1 to, that concept. 2 484 Q Thank you. 3 At paragraph 16 of your affidavit you go 4 through the various public interests that are 5 considered, and we talked about earlier this 6 morning these different bullet points that 7 appear at paragraph 16; correct? 8 A Well, actually these aren't all of the public 9 interest considerations that we talked about 10 this morning. These are particularly the public 11 interests served by limiting access to 12 controlled substances. That's what the 13 paragraph is speaking to. 14 485 Q What information or evidence do you have that 15 suggests that the prohibition on cannabis limits 16 access to that substance? 17 A What? 18 MS. SOKHANSANJ: Sorry? I didn't understand your 19 question either. 20 MR. TOUSAW: 21 486 Q I'm wondering what information or evidence the 22 witness has that suggests that the prohibition 23 on cannabis limits access to the substance? 24 A Well, by being listed in the schedule to the 25 CDSA, the controls imposed by the CDSA apply to 156 1 that substance. I think that's what you're 2 asking me. 3 487 Q Well, do you have any evidence that what you 4 call the controls imposed by the CDSA actually 5 serve to limit access to cannabis by Canadians? 6 MS. SOKHANSANJ: Mr. Tousaw, I'm not sure I 7 understand your question at all. The controls 8 are a criminal prohibition on access to the 9 substance in question. 10 MR. TOUSAW: Yes. Yes. 11 MS. SOKHANSANJ: All right. So it's not really a 12 question of evidence then. It's simply 13 outlawed. 14 MR. TOUSAW: Well, but -- 15 MS. SOKHANSANJ: I'm not sure what you're asking her 16 to produce. 17 MR. TOUSAW: Perhaps I can explain. 18 488 Q It's clear that people access cannabis in 19 Canada, correct, legally and illegally? 20 A Legally under the Medical Marihuana Access 21 Regulations, yes. 22 489 Q And it's clear that people in Canada access 23 cannabis illegally as well? 24 A That would be correct. 25 490 Q Yes. Okay. So do you have any evidence or 157 1 information that suggests that the absolute 2 prohibition on cannabis modified by the MMAR, 3 and leaving aside hemp, of course, actually, 4 actually limits access to cannabis by Canadians? 5 MS. SOKHANSANJ: So are you asking her if she has any 6 evidence as to whether if there were no 7 prohibition whatsoever there would be different 8 access? 9 MR. TOUSAW: I'm asking her if she has any evidence 10 or information that suggests that the 11 prohibition on cannabis actually limits access. 12 MS. SOKHANSANJ: I'm going to object. Your question 13 is not answerable. It doesn't make any sense at 14 all. There's a criminal prohibition that says 15 you can't have it. I'm not sure what you're 16 asking her for evidence of at all. 17 MR. TOUSAW: I'm asking for evidence that that 18 criminal prohibition that says you can't have it 19 actually limits people's access to it. 20 MS. SOKHANSANJ: I'm going to object on grounds of 21 just sheer incomprehensibility -- 22 MR. TOUSAW: You really don't understand it? 23 MS. SOKHANSANJ: -- and advise her not to answer. 24 Yeah, I've suggested to you -- I've said 25 are you asking her whether if there were no 158 1 prohibition she's -- her understanding is that 2 there would be no different access. I mean of 3 course it limits access. The prohibition says 4 access is limited. It speaks for itself, so I'm 5 just going to object, it doesn't make any sense, 6 and advise her not to answer instead of -- 7 MR. TOUSAW: Perhaps an example would assist. 8 491 Q I have three children, and my daughter comes to 9 me and says, can I have a cookie, and I say, 10 absolutely not, you can't have a cookie, and 11 then I go to my room to read a book, and my 12 daughter goes and gets a cookie out of the 13 cabinet. 14 I have imposed an absolute prohibition on 15 her ability to get that cookie, and yet it 16 somehow has not limited her access to the cookie 17 because she has it in her hand and she's happily 18 eating it. 19 Do you understand that example? 20 A Yes. 21 492 Q Okay. Do you have any evidence or information 22 that the prohibition on cannabis actually in 23 fact limits access to cannabis by Canadians? 24 A Well, I don't work for law enforcement, but I 25 would suggest that there are numerous charges 159 1 under the CDSA laid against people in Canada on 2 a regular basis -- 3 493 Q Yes. 4 A -- relating to cannabis and cannabis-related 5 activities that are illegal in Canada. 6 494 Q Precisely. And each and every one of those 7 people charged, for example, with possession of 8 marihuana, at least if they're convicted, 9 presumably had access to it; correct? 10 A Yes. It stands to reason that if you have -- if 11 you are charged with possession you had access 12 to it in the first place. 13 495 Q Okay. So do you have any evidence or 14 information in your possession that suggests 15 that the prohibition on cannabis actually limits 16 access to the substance by Canadians? 17 MS. SOKHANSANJ: So now I'm going to object to the 18 question because now I understand it, but your 19 question basically is do you have any evidence 20 that the criminal law is effective, and that's 21 not something you can properly ask this witness 22 in this cross-examination. 23 MR. TOUSAW: Well, I'm asking about paragraph 16 and 24 the weighing of the public interests -- 25 MS. SOKHANSANJ: Yes. 160 1 MR. TOUSAW: -- served in limiting access to 2 controlled substances. 3 MS. SOKHANSANJ: And you're saying do you have any 4 evidence that the criminal law serves its 5 intended purposes, and that's not something 6 she's in a position to comment on. 7 MR. TOUSAW: 8 496 Q Do you have any evidence or information in your 9 possession that access to cannabis is limited by 10 the prohibition? 11 MS. SOKHANSANJ: And I'm -- she has explained about 12 law enforcement. I'm going to object and ask 13 you to move on. It's just not something that is 14 properly within the scope of her knowledge. 15 MR. TOUSAW: 16 497 Q Well, you're in the Policy and Regulatory 17 Affairs division; correct? 18 A Yes. 19 498 Q And you study policies; correct? 20 A Yes. 21 499 Q The prohibition on cannabis is a policy of the 22 Government of Canada; correct? 23 A Correct. I would add that it was a policy that 24 was established in legislation that was in place 25 well before I arrived in this job. 161 1 500 Q Yes. Yes. Nevertheless, the policy aspects of 2 prohibition on cannabis are something you're 3 familiar with? You work in policy? 4 A Yes. 5 501 Q Okay. Do you have any evidence that the policy 6 is effective at limiting access? 7 MS. SOKHANSANJ: Don't answer that. Move on, 8 Mr. Tousaw. 9 MR. TOUSAW: 10 502 Q When you were considering Mr. Bennett's request 11 and you were weighing these considerations in 12 your mind, the consideration against the public 13 interest served in limiting access to controlled 14 substances, when you were weighing those 15 considerations in your mind, did you have 16 evidence that the prohibition limited access, or 17 did you just make an assumption that it did? 18 MS. SOKHANSANJ: Ms. Kula, I'm going to advise you 19 not to answer that question. I've already said 20 that she's not in a position to comment on 21 whether there's evidence that the criminal law 22 is followed and the extent to which it is 23 followed and the extent to which it works as a 24 deterrent. Those are subjects well outside of 25 the scope of her understanding or knowledge and 162 1 her affidavit. 2 MR. TOUSAW: 3 503 Q Well, you say in paragraph 1 of your affidavit 4 that you have personal knowledge of matters 5 deposed to; correct? 6 A Yes. 7 504 Q Except where stated on information and belief; 8 correct? 9 A Correct. 10 505 Q And paragraph 16 you make statements; correct? 11 A Correct. 12 506 Q And none of those statements are made upon 13 information and belief, are they? 14 A No. 15 507 Q Okay. So presumably then you have some personal 16 knowledge related to paragraph 16; correct? 17 A Well, the intent of paragraph 16 was not to make 18 an assessment of the validity of those public 19 interest statements. It was simply to state 20 what those considerations are. It speaks to the 21 intent and purpose of the CDSA. 22 508 Q So when you're drafting paragraph 16 you're 23 talking about the weighing of these 24 considerations. Did you actually undertake the 25 weighing exercise that you describe? 163 1 A Yes. 2 509 Q Okay. And in that weighing exercise did you 3 contemplate whether or not the prohibition on 4 cannabis actually limited access to that 5 controlled substance? 6 A As I've said before, the assessment of this 7 request was considering the particular request 8 of Mr. Bennett against a series of 9 considerations, only one of which is the intent 10 and purpose of the CDSA. 11 I can't -- I can't tell you that 12 purposefully we included information about the 13 effectiveness of the control scheme in that 14 assessment. It was -- that is not something 15 that in practice we have ever done in the 16 consideration of such a request. 17 510 Q Okay. Thank you. 18 Is that answer that you just gave me that 19 that consideration, that balancing, that 20 understanding is something you've not ever done 21 in the requesting process, does that equally 22 apply to the second and third bullet points, the 23 reduction of the potential for diversion and the 24 limiting the potential for increased criminal 25 activity? In other words, did you consider in 164 1 responding to Mr. Bennett's request the efficacy 2 of the criminal prohibition in reducing 3 potential for diversion and limiting the 4 potential for increased criminal activity? Was 5 that a consideration? 6 A I've already told you that we did not consider 7 the effectiveness of the CDSA in its totality as 8 part of the considerations in Mr. Bennett's 9 request. We looked at Mr. Bennett's request on 10 the face of what was he requesting in terms of 11 the nature of the exemption, and we looked at a 12 range of considerations, including whether -- 13 not whether -- including the purpose and intent 14 of the control framework and whether granting 15 the exemption would I guess maintain the public 16 interest or respect the public interest in light 17 of the fact that Mr. Bennett would now be 18 exempted from some of the provisions of the 19 control framework. 20 511 Q And in weighing those considerations, how would, 21 in your view, Mr. Bennett's personal production 22 and consumption of cannabis for his religious 23 purposes affect access to cannabis by members of 24 vulnerable groups? 25 MS. SOKHANSANJ: Well, first you have to ask her 165 1 whether she considered the access concerns in 2 the context of Mr. Bennett's personal production 3 and consumption. 4 My recollection is her response was about 5 global concerns about access when she was 6 enumerating the public interest considerations. 7 MR. TOUSAW: 8 512 Q The -- paragraph 16 talks about assessing a 9 request for a section 56 exemption; correct? 10 A Yes. 11 513 Q And that was a process you went through with 12 respect to Mr. Bennett's application; correct? 13 A Yes. 14 514 Q In considering Mr. Bennett's application, how is 15 it that Mr. Bennett's personal production and 16 consumption would affect access to cannabis by 17 vulnerable groups? 18 MS. SOKHANSANJ: Again, you haven't asked her if she 19 considered that issue, whether Mr. Bennett's 20 personal consumption would affect access by 21 vulnerable groups, which is the question you 22 just put. 23 MR. TOUSAW: 24 515 Q Well, in paragraph 16, as I said a moment ago 25 when you answered, you were considering -- you 166 1 said that you went through this process, the 2 assessment of the request and the weighing of 3 the public interests, with respect to 4 Mr. Bennett's exemption; correct? 5 A Correct. 6 516 Q Okay. And so I'm asking you how the denial of 7 Mr. Bennett's exemption furthers the goal of 8 protecting the health and safety of vulnerable 9 groups by reducing access to cannabis? 10 A Well, these are general considerations. You've 11 already asked me questions about whether 12 Mr. Bennett is a member of a vulnerable group, 13 and I thought that I'd answered that and agreed 14 with you that logically he is not a member of a 15 vulnerable group. 16 517 Q You did. 17 A So I don't believe that in that instance then a 18 specific consideration that would have applied 19 in this particular process was that particular 20 aspect. 21 518 Q Okay. Same question for the second bullet point 22 in paragraph 16: how does the denial of 23 Mr. Bennett's request reduce the potential for 24 diversion of cannabis to the illicit market? 25 A Well, I think you're asking me to speculate on 167 1 if we had granted the exemption whether 2 Mr. Bennett would undertake the appropriate 3 controls on the cannabis that he was then going 4 to be producing and using so as to reduce the 5 potential for diversion. 6 I can't comment on what Mr. Bennett might 7 do if we had granted him an exemption. 8 519 Q Okay. So it was not part of the consideration 9 of Mr. Bennett's request whether or not 10 Mr. Bennett would divert cannabis to the illicit 11 market; is that correct? 12 A I don't think that's true, and it's not what I 13 said. What I said was, was that you were asking 14 me to speculate if we had granted the request 15 whether he had -- whether he, Mr. Bennett, would 16 be in a position to divert controlled substances 17 to the illicit market. I'm not sure I'm 18 following what you're asking me. 19 520 Q Well, I didn't actually ask you that question. 20 That was the answer you gave to my question. My 21 question was, how does the denial of 22 Mr. Bennett's request for an exemption to use 23 and produce cannabis for his own personal 24 religious use reduce the potential for diversion 25 of cannabis to the illicit market? 168 1 MS. SOKHANSANJ: And Ms. Kula has never said that the 2 denial of Mr. Bennett's request necessarily 3 reduces the potential for diversion. She has 4 explained that these are global public interest 5 concerns that Mr. Bennett must overcome in order 6 to get the exceptional exemption he seeks. 7 MR. TOUSAW: Okay. I appreciate your commentary, but 8 quite frankly it's a little close to the line of 9 coaching the witness in answering the question. 10 So I'd appreciate if you have an objection, to 11 make the objection, state the basis for the 12 objection and either direct your witness to 13 answer or not answer. 14 MS. SOKHANSANJ: My difficulty is I'm concerned you 15 may be putting words in the witness's mouth. 16 MR. TOUSAW: I'm asking her questions. My concern is 17 that you were putting words in the witness's 18 mouth. 19 MS. SOKHANSANJ: No. 20 MR. TOUSAW: 21 521 Q My question is, how does the denial, if at all, 22 of Mr. Bennett's request for an exemption for 23 his own personal production and possession of 24 marihuana, cannabis, for his personal religious 25 use achieve the public interest in reducing the 169 1 potential for diversion of controlled substances 2 to the illicit marketplace? 3 A What I've said to you is that you're asking me 4 to speculate whether if we had granted the 5 exemption Mr. Bennett would have potentially 6 diverted the cannabis to the illicit market, and 7 I cannot answer that. 8 522 Q I'm not asking you to speculate on that, but now 9 I'll ask you -- and I'll circle back to my 10 question because I don't think you have answered 11 it, I'll ask you, did you, in considering 12 Mr. Bennett's request, consider whether or not 13 Mr. Bennett would, specifically Mr. Bennett, 14 would divert cannabis to the illegal 15 marketplace? 16 A Yes, that was a consideration. 17 523 Q Okay. And did you come to a conclusion one way 18 or another about whether or not he was likely to 19 do so? 20 A I think the reason for the recommendation to 21 deny the request was -- had nothing to do with 22 whether or not Mr. Bennett would have diverted 23 marihuana to the illicit market. 24 524 Q Okay. And same question regarding the third 25 bullet point of paragraph 16: did you, in 170 1 considering whether or not to recommend the 2 denial or granting of Mr. Bennett's request, 3 come to a conclusion on whether or not the 4 denial or granting of that request would limit 5 the potential for increased criminal activity 6 arising from the illegal production, possession 7 and possible trafficking of a controlled 8 substance? 9 A Yes, it was a consideration. 10 525 Q And did you come to a conclusion? 11 A Again, I believe the reasons for denying the 12 request -- or, sorry, recommending to deny the 13 request were not specifically related to the 14 potential for increased criminal activity. 15 526 Q They were generally related to that potential? 16 A Okay, perhaps I misspoke. I would say not 17 related to. 18 527 Q Okay. Thank you. 19 Isn't it true that in fact the denial of 20 Mr. Bennett's exemption request is more 21 likely -- was more likely to increase criminal 22 activity because he as a religious adherent 23 would then violate the law in order to practise 24 his religion? 25 MS. SOKHANSANJ: I object. Don't answer that. 171 1 MR. TOUSAW: What is the basis for your objection? 2 MS. SOKHANSANJ: She can't speculate as to whether he 3 is more likely to engage in criminal activity 4 now or not. As far as we know, Mr. Bennett is a 5 law-abiding citizen. 6 MR. TOUSAW: 7 528 Q Is that your position as well? 8 MS. SOKHANSANJ: I object to the question, and I'm 9 advising you not to answer. It's speculative 10 and argumentative, but we'll move on. 11 MR. TOUSAW: 12 529 Q Isn't it the case that the risks that you 13 identify in paragraph 16 could be ameliorated by 14 crafting regulations or rules associated with 15 the exemption such as age limits, mandatory 16 education prior to the issuance of the 17 exemption, mandatory medical assessments prior 18 to issuing an exemption, warnings for members of 19 the vulnerable groups and requirements that the 20 cannabis only be used for the individual's 21 personal religious purposes? 22 MS. SOKHANSANJ: I object. That is simply making 23 legal argument at this point. 24 MR. TOUSAW: 25 530 Q Did you consider whether or not the risks that 172 1 you identify in paragraph 16 -- when coming to a 2 conclusion on Mr. Bennett's request, did you 3 consider whether or not those risks could be 4 ameliorated by crafting regulations associated 5 with an exemption such as age, illness, 6 mandatory education, mandatory medical 7 assessments, warnings for members of vulnerable 8 groups or requirements that the individual use 9 cannabis only for his or her personal religious 10 purposes? 11 A Well, first of all, the very nature of 12 section 56 is that its an exceptional 13 decision-making authority invested in the act, 14 so it would be irregular, I would say, or 15 illogical, perhaps is a better word, to create 16 regulations stipulating how section 56 17 exemptions are to be issued or -- not 18 considered, but issued and the conditions that 19 might be associated with those. I mean the two 20 don't go together. 21 But beyond that, if you're asking me 22 generally about whether any of those 23 considerations that you listed were factors that 24 we applied in making the decision or making the 25 recommendation to deny the request, some of them 173 1 are logical and could have been part of our 2 decision-making -- or not decision-making, our 3 analysis, but at the end of the day they were 4 not the -- they were not the predominant reason 5 for recommending that the request be denied. 6 531 Q And what was the predominant reason? 7 A Fundamentally Mr. Bennett in his request failed 8 to identify in this -- there's no doubt, no, you 9 know, concern that his beliefs are not sincere, 10 but he failed to document how his religious 11 practice needed to be carried out by possession 12 and production of a quantity of a controlled 13 substance, so there was a lot of information in 14 the request documenting his beliefs, but the 15 exemption request was for the authority or the 16 allowance to possess and produce a quantity of 17 marihuana for his religious practice, and there 18 was no information in the request about those 19 religious practices. 20 532 Q And you had these concerns when going through 21 the evaluation process? 22 A Yes. 23 533 Q And at any point in the evaluation process did 24 you consider contacting Mr. Bennett to ask those 25 questions? 174 1 A Well, I think you've already asked me questions 2 about that this morning, and I said that it's 3 not our usual practice, usual in the context of 4 there have only been four of these requests, but 5 it is not our usual practice to engage in 6 communication with the requester. 7 534 Q Did you consider doing so in Mr. Bennett's case? 8 A No. 9 535 Q And the minister or designates of the minister 10 have done so in other section 56 instances; 11 correct? 12 MS. SOKHANSANJ: I think her answer this morning was 13 once. 14 MR. TOUSAW: 15 536 Q Was that your answer this morning? 16 A That was my answer this morning. 17 537 Q There's nothing preventing you from doing so; 18 correct? 19 MS. SOKHANSANJ: I'm going to object. You've already 20 asked that this morning. She has already 21 answered it. 22 MR. TOUSAW: 23 538 Q It is within the discretion of the minister to 24 issue a section 56 request with conditions; 25 correct? 175 1 A By their very nature section 56 exemptions 2 always have terms and conditions associated with 3 them. 4 539 Q So it is not just within the minister's 5 discretion, but it is always the case that 6 granting a request under section 56 carries with 7 it certain conditions? 8 A Yes. 9 540 Q And in Mr. Bennett's specific case, those 10 conditions could have included a requirement 11 that he undergo mandatory education or a medical 12 assessment or that he only use cannabis or 13 produce cannabis for his own religious purposes; 14 correct? That was open to the minister? 15 A Yes. 16 541 Q I will ask you to turn to -- 17 MS. SOKHANSANJ: It's just that time of day when I 18 start to wonder about an afternoon break. 19 MR. TOUSAW: Yes. That's fine. We're moving on to a 20 different section. I'm happy to take 21 10 minutes. 22 MS. SOKHANSANJ: All right. Let's do that. 23 (PROCEEDINGS ADJOURNED AT 2:37 P.M.) 24 (PROCEEDINGS RECONVENED AT 2:57 P.M.) 25 MR. TOUSAW: 176 1 542 Q I'm going to ask that we turn now to tab A. 2 MS. SOKHANSANJ: Of? 3 MR. TOUSAW: Exhibit 1 -- Exhibit A to Exhibit 1. 4 MS. SOKHANSANJ: M'mm-hmm. 5 MR. TOUSAW: The affidavit. And not the cover letter 6 but the actual statutory declaration of 7 Mr. Bennett. 8 543 Q You reviewed the statutory declaration; correct? 9 A That is correct. 10 544 Q And Ms. Tremblay also reviewed it; correct? 11 A That is correct. 12 545 Q And it was provided to Mr. Denault for his 13 review as well; correct? 14 A That is correct. 15 546 Q At paragraph 3 of Mr. Bennett's affidavit he 16 indicates that he uses cannabis religiously and 17 had done so since 1990; do you see that? 18 A That is correct. 19 547 Q You have no reason to doubt that's untrue, do 20 you? 21 A No. 22 548 Q He goes on to say that he is in jeopardy of 23 losing his liberty for exercising his religious 24 beliefs. You have no reason to doubt that 25 that's true or at least that he believes that to 177 1 be true; correct? 2 A Again -- 3 MS. SOKHANSANJ: Maybe just ask one of the 4 two questions. 5 MR. TOUSAW: 6 549 Q You have no reason to doubt that statement? 7 MS. SOKHANSANJ: Well, your first question was you 8 have no reason to doubt whether it's true that 9 he is in jeopardy. Your second question was you 10 have no reason to doubt whether it's true he 11 believes he is in jeopardy. Which is it, 12 Mr. Tousaw? 13 MR. TOUSAW: Let's start with the first one and then 14 the second one. 15 MS. SOKHANSANJ: So your question is? Please repeat. 16 MR. TOUSAW: Could I have that read back? 17 (COURT REPORTER READS BACK QUESTION NUMBER 548) 18 MR. TOUSAW: 19 550 Q That's true, isn't it, that he, Mr. Bennett, if 20 he exercises his religious belief and possesses 21 cannabis is in danger of losing his liberty? 22 A I have no reason to doubt that he believes that 23 may be the case. 24 551 Q But cannabis is illegal, as you identified 25 earlier; correct? 178 1 A Well, the possession of cannabis and other 2 activities with it are illegal. 3 552 Q Yes. And so you'll grant that in order to use 4 cannabis one must possess it; correct? 5 A Correct. 6 553 Q So in order for Mr. Bennett to be using cannabis 7 he is at risk of arrest; correct? 8 A That is correct. 9 554 Q And of course you wouldn't disagree that being 10 arrested is a deprivation of one's liberty; 11 correct? 12 A That is correct. 13 555 Q Okay. He goes on to say that he's "denied the 14 ability to make choices concerning his own body 15 and exercising control over his physical and 16 psychological integrity free from interference 17 by the criminal prohibition," and I won't ask 18 you if you agree whether it's a breach of a 19 security to the person, but you don't deny that 20 the prohibition denies him the ability to make 21 choices concerning his own body and the exercise 22 of control over his physical and psychological 23 integrity free from interference by the criminal 24 prohibition as it relates to the use of 25 cannabis? 179 1 A I'm not sure I actually understand what you're 2 asking because the question started with 3 criminal prohibition and ended with criminal 4 prohibition. 5 556 Q Yes. Because of the criminal prohibition 6 Mr. Bennett cannot lawfully possess and 7 therefore use cannabis; correct? 8 A Correct. 9 557 Q And therefore -- okay, let's move on to 4. 10 You don't have any reason to doubt the 11 veracity of paragraph 4 of Mr. Bennett's 12 statutory declaration, do you? 13 A Absolutely none. 14 558 Q And same question vis-a-vis paragraph 5? 15 A Again, no reason to doubt. 16 559 Q And you don't in fact doubt that belief? 17 A Correct. 18 560 Q Paragraph 6 Mr. Bennett discusses that he came 19 to the realization of what he calls "this 20 profound truth" via a plant-based religious 21 experience. You have no reason to doubt 22 Mr. Bennett's veracity in making that statement, 23 do you? 24 A No. 25 561 Q And you do not doubt his veracity? 180 1 A No. 2 562 Q Same question for paragraph 7: you have no 3 reason to doubt and you do not doubt that 4 Mr. Bennett believes what he says in 5 paragraph 7? 6 A Sorry, I'm rereading. Well, the paragraph 7 doesn't actually state that Mr. Bennett believes 8 that, but if that's what you're suggesting that 9 he is attempting to do in that paragraph, then I 10 again would say I do not disagree with his 11 belief. 12 563 Q And of course you're not qualified to render an 13 opinion on whether or not the right to access 14 plants of the earth goes beyond a particular 15 religious dogma and that virtually all theistic 16 religions believe their respective deity or 17 deities created the plants of the earth? 18 A Absolutely not. 19 564 Q And Ms. Tremblay, does she have a background in 20 religious scholarship? 21 A No. 22 565 Q And do you know if Mr. Denault has a background 23 in religious scholarship? 24 A I'm quite confident the answer to that question 25 is no. 181 1 566 Q Same question with respect to paragraph 8: you 2 do not doubt Mr. Bennett is being truthful when 3 he makes that statement? 4 A That is correct. 5 567 Q Same question for paragraph 9: you have no 6 reason to doubt nor do you doubt that 7 Mr. Bennett's research documents that humans 8 have had a relationship with the cannabis plant 9 that goes back 10,000 years; correct? 10 A Correct. 11 568 Q And you have no reason to doubt and do not doubt 12 that that history includes the established use 13 of cannabis in the world's oldest civilizations? 14 A Correct. 15 569 Q And do you happen to know if in fact, putting 16 aside Mr. Bennett's beliefs, if in fact the 17 statement in paragraph 9 is true or untrue? 18 MS. SOKHANSANJ: Well, she has already said she's not 19 a religious scholar and isn't really in a 20 position to opine as to the truth or lack of 21 truth of that statement. 22 MR. TOUSAW: 23 570 Q Is that true, you have no knowledge of the truth 24 or lack of truth of that statement? 25 MS. SOKHANSANJ: I think my objection was you can't 182 1 ask her to opine as to the truth or lack of 2 truth of that statement. That's a matter of 3 opinion. 4 MR. TOUSAW: 5 571 Q Have you at any times in your travels through 6 Health Canada or as manager of the policy 7 division had the occasion to research the 8 history of human interaction with cannabis? 9 A In the context of preparing for my affidavit and 10 in preparing for this cross-examination, as I 11 noted this morning, I did undertake to read 12 portions of one of Mr. Bennett's books, and 13 certainly in that book there are many references 14 to various civilizations using plants for 15 religious purposes. 16 572 Q Including cannabis; correct? 17 A Including cannabis. 18 573 Q And you have no reason to doubt that the 19 research undertaken is anything other than 20 accurate? 21 A Absolutely not. 22 574 Q At paragraph 10 of Mr. Bennett's statutory 23 declaration he indicates that his own sincere 24 and specific religious belief is that cannabis 25 is the biblical tree of life, a realization that 183 1 came to him close to two decades ago. You don't 2 have any reason to doubt nor do you doubt that 3 that is in fact Mr. Bennett's sincere and 4 specific religious belief; correct? 5 A Correct. 6 575 Q Are you familiar with what the tree of life, the 7 biblical tree of life is? 8 MS. SOKHANSANJ: I'm just going to object again. 9 She's not in a position to speak to matters of 10 religious scholarship. 11 MR. TOUSAW: 12 576 Q And I'm not asking for your opinion on religious 13 scholarship. I'm asking do you have a layman's 14 understanding or any understanding of what the 15 biblical tree of life is? 16 A I am aware of the concept of the tree of life. 17 577 Q In paragraph 11 Mr. Bennett talks about his 18 learning things about the many uses of cannabis. 19 Same question as some of the prior paragraphs: 20 no reason to doubt nor do you doubt the veracity 21 of that statement? 22 A Sorry, I'm just looking at it quickly. No, and 23 in fact I think I state that very clearly in my 24 affidavit. 25 578 Q You do? 184 1 A Yes. I think it's in paragraph I'm going to say 2 11, I think. I can't remember. Just a second. 3 No, actually I don't think -- I think it's -- 4 just a second. Sorry, I know it's in here 5 somewhere. I think it's actually paragraph 25, 6 you know. "During our discussions" -- I'm 7 quoting here. I say: 8 "During our discussions we noted that the 9 information in the letter and statutory 10 declaration indicated that Mr. Bennett was 11 passionate that marihuana could provide a 12 wide range of benefits to society 13 including the solution of over-logging of 14 Canada's old growth forests ..." 15 I won't read the whole paragraph. 16 579 Q Yes. Okay. 17 A And then we go on to say -- I go on to say: 18 "In this regard, Mr. Bennett's belief that 19 marihuana has many applications was not in 20 question." 21 580 Q Yes. Thank you. 22 At any point in your consideration of 23 Mr. Bennett's request did you or did 24 Ms. Tremblay under your direction conduct 25 research into the biblical tree of life and what 185 1 that description may mean to Mr. Bennett or 2 generally? 3 A Well, no, because we had -- as I've previously 4 said to you, we did not doubt any of the 5 assertions that Mr. Bennett made in his 6 letter -- or, sorry, in the letter or the 7 assertions that were made in his statutory 8 declaration. 9 581 Q Did you feel that it was important to conduct 10 independent research to come to an understanding 11 of what he might or might not mean by the 12 biblical tree of life? Notwithstanding that you 13 didn't doubt him, did you want to form a deeper 14 understanding of what he meant when he said 15 that? 16 A Did I want to undertake or gain a deeper 17 understanding? I don't recall wanting to do 18 that. 19 582 Q Do you think it would have been -- would it have 20 been an important consideration in coming to 21 your decision to have an understanding of what 22 Mr. Bennett means when he indicates that he 23 believes cannabis is the biblical tree of life? 24 MS. SOKHANSANJ: I'm going to object. Ms. Kula has 25 already explained what the considerations were 186 1 and that she didn't undertake to look into this 2 as a consideration. 3 MR. TOUSAW: 4 583 Q Paragraph 12, again, no reason to doubt nor do 5 you doubt the veracity of Mr. Bennett's 6 statements in that paragraph? 7 A Correct. 8 584 Q Paragraph 13, don't doubt, no reason to doubt 9 Mr. Bennett's statements in that paragraph? 10 A Correct. 11 585 Q So that statement -- at least that statement in 12 paragraph 13 makes you aware that at least at 13 that period of time Mr. Bennett was using 14 cannabis; correct? 15 A Yes. 16 586 Q Okay. At paragraph 14 Mr. Bennett describes 17 being caught up in the apocalyptic ardor of the 18 moment and certain societal imprinting and his 19 immediate retrieval of a Bible and reading 20 through it sitting there at that night 21 watchman's table in the west coast fish plant. 22 You have no reason to doubt nor do you doubt 23 that the events in paragraph 14 occurred as 24 Mr. Bennett relays them? 25 A No reason whatsoever. 187 1 587 Q Nor do you doubt that? 2 A That's correct. 3 588 Q At paragraph 15 Mr. Bennett describes undergoing 4 an epiphany in which divine information-filled 5 light enters his being and leaves him with a 6 strong intuitive knowledge and belief that 7 cannabis was the tree of life described at the 8 end of the Book of Revelations. No reason to 9 doubt Mr. Bennett's veracity, nor do you doubt 10 Mr. Bennett's veracity that he had that 11 epiphany? 12 A Correct. 13 589 Q No reason to doubt nor do you doubt that 14 Mr. Bennett had that epiphany under the 15 influence of cannabis as he relates in 16 paragraph 13; correct? 17 A He has made the assertion, so I have no reason 18 to doubt it. 19 590 Q Okay. An epiphany is a religious experience, is 20 it not? 21 A You're asking me to define the term "epiphany"? 22 I believe that originally the term has a 23 religious connotation, but in society more 24 broadly today it can also be used to explain 25 or -- or define an enlightenment that is not of 188 1 a religious nature. 2 591 Q Fair enough. But at least with respect to 3 Mr. Bennett's description of an epiphany and the 4 subsequent characterization of it as divine 5 information-filled light, it was your 6 understanding when you reviewed Mr. Bennett's 7 request and made recommendations on that request 8 that Mr. Bennett is describing a religious 9 epiphany in paragraph 15; correct? 10 A I would agree with you. 11 592 Q At paragraph 16 Mr. Bennett describes the tree 12 of life from Revelations 22:2. Again, no reason 13 to doubt that that is Mr. Bennett's view of what 14 that passage in Revelations is; correct? 15 A Correct. 16 593 Q In reviewing -- in reviewing Mr. Bennett's 17 request, did you or did Ms. Tremblay under your 18 direction at any point go and get a Bible and 19 read that passage, Revelations 22:2? 20 A I don't recall Ms. Tremblay telling me that she 21 did that, so I would have to say probably not. 22 594 Q And you yourself did not do that; correct? 23 A No. I did not see the need to. 24 595 Q Because again you didn't doubt the sincerity of 25 his religious belief? 189 1 A That is correct. 2 596 Q And you didn't doubt the sincerity of his 3 spiritual experience as described in paragraphs 4 13 through 15; correct? 5 A No reason to do so. 6 597 Q And you did not do so? 7 A And I did not do so. 8 598 Q At paragraph 17 Mr. Bennett first describes 9 certain historical industrial uses and medicinal 10 uses and uses put to the seeds, nutritional uses 11 of the seeds of the cannabis plant. Again, no 12 reason to doubt that when Mr. Bennett makes that 13 statement he is accurately relaying his belief, 14 at least, about those uses of cannabis; correct? 15 A I think -- I seem to recall that we had some 16 discussion about whether he, Mr. Bennett, was 17 referring to cannabis and/or potentially hemp, 18 but regardless of that I had no reason to -- 19 beyond that I had no reason to doubt the 20 veracity of the statements. 21 599 Q And hemp is simply, as we discussed earlier, a 22 low-THC form of cannabis; correct? 23 A That's correct. 24 600 Q And you are not aware of any reason why the 25 cannabis plant, high-THC cannabis plant, would 190 1 be unsuitable for historical or current 2 industrial uses or production of oil from seeds 3 and those kinds of things? 4 MS. SOKHANSANJ: Ms. Kula has testified about some of 5 the harms inherent in the high-THC cannabis 6 plant. 7 MR. TOUSAW: Yes, I recognize that. 8 MS. SOKHANSANJ: So when you describe its utility, I 9 don't want there to be any confusion about those 10 two issues. 11 MR. TOUSAW: Industrial uses. 12 601 Q You're not aware of any distinction between, for 13 example, the pulp fibre created from hemp and 14 the pulp fibre created from high-THC cannabis; 15 correct? 16 A Well, it's illegal to generate fibre from 17 high-potency cannabis plants. 18 602 Q Correct. 19 A The Industrial Hemp Regulations only allow you 20 to be licensed to produce low-THC cultivars. 21 603 Q And I'm perfectly clear on the legal 22 distinction. 23 As a practical matter, you're not aware of 24 any practical difference in terms of producing, 25 for example, paper from hemp versus paper from 191 1 high-THC cannabis? 2 A I'm not an expert in the industrial applications 3 of cannabis so wouldn't be able to comment on 4 that. 5 604 Q And so that differentiation or potential 6 differentiation didn't enter into your 7 deliberations at all because you didn't know 8 about it? 9 A Right. 10 605 Q Okay. 11 A And I think that's what I said when I initially 12 answered the question. 13 606 Q Yes. So to continue in paragraph 17, 14 Mr. Bennett says: 15 "Knowing these facts and deeply under the 16 influence of cannabis and the religious 17 experience it provoked in me in the 18 circumstances, I found it impossible to 19 ignore these analogies with the Biblical 20 tree of life." 21 You have no reason to doubt that Mr. Bennett 22 sincerely believes what he says there and, in 23 fact, does believe what he says there? 24 A No reason to doubt, and no, I did not doubt. 25 607 Q So it's clear from that paragraph at 17 that 192 1 Mr. Bennett is saying that cannabis, the use of 2 cannabis, the influence of cannabis provoked a 3 religious experience in him; correct? 4 MS. SOKHANSANJ: Well, Ms. Kula can't -- I mean, the 5 document speaks for itself. Ms. Kula can't say 6 whether the document is clear or not. It speaks 7 for itself as to whether it's clear or not. 8 MR. TOUSAW: 9 608 Q Your understanding when you were reviewing 10 Mr. Bennett's request for an exemption is that 11 the use of cannabis as described by Mr. Bennett 12 in the statutory declaration provoked a 13 religious experience in him; correct? 14 A Mr. Bennett in his statutory declaration is 15 stating that he had a religious experience, and 16 I have no reason to believe that he did not have 17 a religious experience. 18 609 Q In paragraph 18 Mr. Bennett begins to describe 19 how no longer under the immediacy of what he 20 calls the cannabis-induced religious experience 21 he began to have some doubts and decided to 22 start doing some research. I'm paraphrasing. 23 No reason to doubt that that's true; 24 correct? 25 A None at all. 193 1 610 Q And you don't doubt that that's true? 2 A His books are obviously the result of that 3 research, so I would say no. 4 611 Q Yes, they are indeed. And of course he talks 5 about that research at paragraph 19 and the 6 differentiation between a genuine theophany -- 7 MR. BENNETT: It's like an epiphany: theophany. 8 MR. TOUSAW: Well, I know what it is. I'm just 9 making sure I said it right. 10 MR. BENNET: Okay. 11 MR. TOUSAW: 12 612 Q -- theophany and mere delusion is that the 13 information turns out to be true and you didn't 14 have any way of knowing it in advance; correct? 15 A Again, I have no reason to doubt Mr. Bennett's 16 assertion in that paragraph. 17 613 Q And again, you have no reason to doubt nor do 18 you doubt that as he signs this statutory 19 declaration some 18 years later he believed in 20 the veracity of his religious experience and 21 those revelations more than when they originally 22 occurred? No reason to doubt that; correct? 23 A Again, it's an assertion by Mr. Bennett. I have 24 no reason to doubt it. 25 614 Q Paragraph 20, again, no reason to doubt the 194 1 veracity of what Mr. Bennett says in 2 paragraph 20, nor do you doubt it? 3 A Sorry, I'm just getting a quick reread here. 4 615 Q Absolutely. 5 A No reason to doubt the content of that 6 paragraph. 7 616 Q Nor do you doubt it? 8 A No, I do not. 9 617 Q Okay. Of course your aware of the existence of 10 something called the Church of the Universe; 11 correct? 12 A That is correct. 13 618 Q In fact, you attach certain documents related to 14 the Church of the Universe to your affidavit at 15 both Exhibit B and Exhibit C; correct? 16 A That is correct. 17 619 Q And Exhibit B is essentially a section 56 18 request made to the minister, then minister 19 Mr. Clement, for an exemption from the CDSA for 20 the purpose of religious use of cannabis; 21 correct? 22 A That is correct. 23 620 Q And in your coming to a decision with respect to 24 Mr. Bennett's application -- well, let me ask 25 you this. Did you have any personal involvement 195 1 in the section 56 request that appears at tab B 2 of your affidavit? 3 A I did. 4 621 Q You were in your current position at that time? 5 A I was. 6 622 Q And did you undertake research into the Church 7 of the Universe at that time? 8 A Yes, we would have. 9 623 Q And you personally did? 10 A No. Probably would've been someone in my 11 office. I mean, I might have done some myself 12 in reviewing, discussing their conclusions, but 13 the file, as most other files, are assigned to 14 individuals in my office. 15 624 Q And you have no reason to doubt nor do you doubt 16 that the Church of the Universe believes that 17 cannabis is a sacrament that provides adherence 18 to the church, spiritual health and medical 19 healing? 20 MS. SOKHANSANJ: Sorry, are you asking Ms. Kula to 21 opine as to the beliefs of every member of the 22 Church of the Universe? 23 MR. TOUSAW: I'm asking if she has any reason to 24 doubt that as a church the Church of the 25 Universe has a belief that cannabis -- let me 196 1 break it into pieces. 2 625 Q You don't have any reason to doubt that 3 adherents in the Church of the Universe believe 4 that cannabis is a sacrament; correct? 5 MS. SOKHANSANJ: So you're asking Ms. Kula to comment 6 on the personal beliefs of every adherent to the 7 Church of the Universe? 8 MR. TOUSAW: No. I'm asking her whether she has any 9 reason to disbelieve that members of the Church 10 of the Universe believe that. 11 MS. SOKHANSANJ: Oh, so whether she knows one way or 12 the other. 13 MR. TOUSAW: Yeah. 14 626 Q Do you know one way or the other? 15 A I would only be able to go by the information 16 that was provided in the request to me. 17 627 Q And the information provided in the request to 18 you was that members of the Church of the 19 Universe, and specifically the unnamed persons 20 provided this section 56 exemption, believe that 21 cannabis is a sacrament; correct? 22 A Correct. 23 628 Q And that cannabis provides spiritual health and 24 medical healing to at least the applicants here 25 at section 56? 197 1 A Again, I have no reason to doubt their words on 2 the page. 3 629 Q The same apply to all of the paragraphs of the 4 section 56 exemption that appears at tab B to 5 your affidavit? I just want to save the time of 6 going through them one by one. 7 MS. SOKHANSANJ: And by "the same" do you mean does 8 she have? 9 MR. TOUSAW: Any reason to doubt the veracity of the 10 statements contained. 11 MS. SOKHANSANJ: All right. And just to be clear, 12 when she says she has no reason to doubt 13 something, it means she doesn't know one way or 14 the other; is that what you're asking? 15 MR. TOUSAW: Yes. 16 MS. SOKHANSANJ: All right. 17 MR. TOUSAW: 18 630 Q And I'll even narrow it further. I don't want 19 you to opine on anything having to do with the 20 legal conclusions that appear to be drawn by the 21 applicant. I'm not asking you for that. So, 22 for example, I'm not asking you about the first 23 portion of paragraph 1. I'm asking you with 24 respect to the assertions about cannabis being a 25 sacrament and a part of the religious beliefs 198 1 and practices of members of the Church of the 2 Universe, you don't have any reason to doubt 3 that those statements are untrue -- you don't 4 have any reason to believe that those statements 5 are untrue? I'll ask you a much better 6 question. 7 MS. SOKHANSANJ: I find the whole thing very 8 confusing myself, but ... 9 A I don't -- if we're limiting it to the sections 10 of the document that speak to the beliefs of the 11 requesters -- 12 MR. TOUSAW: 13 631 Q Yes. 14 A -- I would say I would have no reason or had no 15 reason at the time to doubt those beliefs. 16 632 Q The last two pages of Exhibit B to your 17 affidavit appear to be a letter from Health 18 Canada signed by Ms. Beth Pieterson to the 19 applicants, the unnamed applicants. Is that 20 essentially what that is? It's a response? 21 A It's a response, that's correct. 22 633 Q And the response is a denial of the section 56 23 request; correct? 24 A That is correct. 25 634 Q And the basis for the denial, as it states in 199 1 this letter, is, and this is the second full 2 paragraph: 3 "That you have failed to provide any 4 evidence that such an exemption is 5 necessary for either medical or scientific 6 purposes or the issuance of such an 7 exemption would be in the public 8 interest." 9 Correct? 10 A That is correct. 11 635 Q At Exhibit C to your affidavit you attach a 12 decision of the Ontario Superior Court of 13 Justice in a case called Her Majesty the Queen 14 v. Michael Baldasaro and Walter Tucker; correct? 15 A Correct. 16 636 Q And this is in the nature of reasons on 17 sentence; correct? 18 A That is correct. 19 637 Q It's -- I won't ask you. Presumably they were 20 convicted, and that's why they're being 21 sentenced; correct? 22 MS. SOKHANSANJ: It speaks for itself. 23 MR. TOUSAW: It speaks for itself. I think it does. 24 I agree with you there. 25 638 Q You reference Exhibit C to your affidavit at 200 1 paragraph 24? 2 A That's correct. 3 639 Q And you quote from that -- you quote from that 4 decision, a quote that reads halfway down your 5 paragraph 24: 6 "Although he (Walter Tucker, founder of 7 the Church of the Universe) harbours a 8 sincere belief that cannabis marihuana is 9 a sacrament of his church and that its use 10 confers significant medical benefits on 11 the user, this is not a case about simple 12 possession or use. It is about 13 trafficking. There is abundant evidence 14 in this case about multiple sales by the 15 offender as part of an organized 16 commercial enterprise for profit." 17 Do you see that? 18 A Yes, I do. 19 640 Q Why did you include that quote in your 20 affidavit? 21 A Well, as it says earlier in the paragraph 22 Mr. Bennett mentioned in his statutory 23 declaration, disclosed in his statutory 24 declaration, that he had become affiliated with 25 the Church of the Universe and that he was a 201 1 reverend in that church and that he's been, I 2 think, instrumental, is the words it says here, 3 in documenting the religious connotations and 4 connections of cannabis. 5 As I've already said, I was aware of the 6 previous -- not application -- the previous 7 request from the same church in to my office and 8 certainly suggested, and it's also in my 9 affidavit, that Ms. Tremblay assess the -- or 10 look at that file when she was undertaking the 11 review of Mr. Bennett's request. 12 The reason for including this particular 13 document, I think, is to -- was to demonstrate 14 that independent of the sincerity of the beliefs 15 of the members of the church, the church 16 organization appeared to have engaged in illegal 17 activities, so from the perspective of 18 considering the intents and purposes of the CDSA 19 to limit illegal activities with controlled 20 substances in the greater public interest, the 21 sentencing of these particular individuals 22 affiliated with the same church that Mr. Bennett 23 disclosed a relationship with was a factor that 24 was considered in our analysis of Mr. Bennett's 25 request. 202 1 641 Q And you mention that the church had engaged in 2 trafficking. The church wasn't charged in that 3 case; correct? 4 A No, sorry, it was the two individuals names in 5 the sentencing. 6 642 Q Yes, Reverends Baldasaro and Tucker engaged in 7 trafficking; correct? 8 A That's correct. 9 643 Q And Mr. Bennett didn't seek an exemption to 10 engage in trafficking; correct? 11 A Well, I think it would be illogical to request 12 an exemption to engage in trafficking. By its 13 very nature it's the illegal distribution of a 14 controlled substance. So I don't know why you 15 want to get an exemption to be able to do 16 something illegal. Like it seems illogical to 17 me that he would ask that, but in any case you 18 are correct that, no, he did not ask for that 19 exemption. 20 644 Q And of course the possession and production 21 of -- in fact, all activity for which section 56 22 exemptions are sought are illegal until the 23 exemption is granted; isn't the correct? 24 A That is correct. 25 645 Q So given that, I think you can see the logic in 203 1 seeking an exemption. I put it to you that it 2 is to no longer be engaged in illegal activity 3 by virtue of having an exemption that says your 4 activity is not illegal; correct? 5 A Correct. 6 646 Q I will take you back to the statutory 7 declaration at Exhibit A to your affidavit 8 marked as Exhibit 1 in these proceedings. 9 Paragraph 21, again, no reason to doubt nor 10 do you doubt the veracity of Mr. Bennett's 11 statements in that paragraph; correct? 12 A No reason to doubt. 13 647 Q And I think you mentioned that at some point 14 either in your review of his request or in 15 preparation for today that you viewed at least 16 some websites and saw some of the -- some of the 17 statements at least that Mr. Bennett has made 18 about cannabis and religious practice; correct? 19 MS. SOKHANSANJ: I think her evidence was about 20 Cannabis and the Soma Solution. 21 MR. TOUSAW: Let me ask -- 22 MS. SOKHANSANJ: But I'm not sure. We'd have to read 23 it back for me to be certain. 24 MR. TOUSAW: And I don't want to go all the way back, 25 so I will just ask. 204 1 648 Q In reviewing Mr. Bennett's request, did either 2 you or Ms. Tremblay under your direction view 3 any of the lectures that Mr. Bennett has given, 4 see any of his presentations or read any of his 5 published material other than the three books 6 that we've discussed previously? 7 A Yes. Ms. Tremblay did undertake to look at some 8 of that material, and yes, I did undertake to 9 look at some of that material in preparing my 10 affidavit and in preparing for today. 11 649 Q Okay. And did, to your memory, either you or 12 Ms. Tremblay see any material that described 13 Mr. Bennett's use of cannabis as part of his 14 religious practice? 15 MS. SOKHANSANJ: So just to be clear, her evidence 16 has been that she looked at material, so 17 Ms. Kula looked at material in the context of 18 preparing her affidavit, but it's Ms. Tremblay 19 who looked at material with respect to reviewing 20 Mr. Bennett's request. 21 MR. TOUSAW: Okay. 22 MS. SOKHANSANJ: So I presume your question is about 23 one or the other of those, but not both. 24 MR. TOUSAW: 25 650 Q Is what your counsel just said accurate? 205 1 A Yes. 2 651 Q Yes. Okay. So you did not review this material 3 until after the decision was made? 4 A No. Sorry. Yes, that is correct. 5 652 Q Okay. 6 A I -- Cheryl and I discussed the findings of her 7 research, but I did not redo her research at the 8 time when we were making the recommendation 9 for -- in Mr. Bennett's request. 10 653 Q That was her job; she did it; you took the 11 information from her? 12 A I took the information, that's correct. 13 654 Q And was part of the information conveyed to you 14 as a result of Ms. Tremblay's research a 15 description of how Mr. Bennett used cannabis in 16 his religious practice? 17 A No. The information that was, I think, gathered 18 from the research that she did documented 19 Mr. Bennett's belief that cannabis had provided 20 him with a religious experience and that he had 21 very sincere and broad beliefs about the powers 22 of cannabis or relationship of cannabis and its 23 ability to provide a religious experience, but I 24 do not believe that -- and certainly was not 25 provided by Ms. Tremblay with any information 206 1 that documented how Mr. Bennett uses marihuana 2 in the practise of his religion. 3 655 Q The request that he makes in the statutory 4 declaration is to produce and possess marihuana 5 for his religious purposes in the amount of 6 7 grams a day, and he describes that at 7 paragraph 22O as his daily cannabis consumption; 8 correct? 9 A That is correct. 10 656 Q And in -- I want to make sure I point you to the 11 right page. At paragraph 19 of your -- 12 A Oh, sorry. 13 657 Q -- affidavit. 14 A My affidavit. 15 658 Q Your affidavit, yes. 16 A M'mm-hmm. 17 659 Q You discuss that Mr. Bennett sought an exemption 18 to produce and possess sufficient cannabis to 19 support his daily consumption via smoking of 20 marihuana in the amount of 7 grams a day; 21 correct? 22 A That is correct. 23 660 Q So you were aware that Mr. Bennett, in the 24 context of the request that he made, was smoking 25 cannabis at quantities of approximately 7 grams 207 1 a day; correct? 2 A That was what the request was for. 3 661 Q Yes. And you have no reason to doubt 4 Mr. Bennett when he says that he is consuming 5 smoking cannabis in those quantities; correct? 6 A No reason to doubt. 7 662 Q Okay. Paragraph 22 of Mr. Bennett's statutory 8 declaration attached as Exhibit B to your 9 affidavit, Exhibit 1 in these proceedings -- 10 MS. SOKHANSANJ: Just give her a moment to get there. 11 MR. TOUSAW: Absolutely. 12 THE WITNESS: Yes. 13 MR. TOUSAW: I try to draw out the description of it 14 for a long time to get you there. 15 MS. SOKHANSANJ: I appreciate that. Thank you. 16 MR. TOUSAW: 17 663 Q There's a number of subheadings in that 18 paragraph 22. Mr. Bennett says at the second 19 sentence that the information tracks the MMAR 20 application, and you're aware of what the MMAR 21 application is, of course; correct? 22 A That's correct. 23 664 Q And you understood him to mean Marihuana Medical 24 Access Regulations when he's saying that in the 25 statutory declaration? 208 1 A That's correct. 2 665 Q And he provided two passport photos that were 3 certified in a manner consistent with that which 4 the Government of Canada accepts for issuance of 5 passports; correct? 6 A That is correct. 7 666 Q There was no doubt that the photographs were of 8 Mr. Bennett; correct? 9 A I had no reason to doubt that. 10 667 Q And you had no reason to doubt any of the 11 statements made in 22A through Q; correct? 12 MS. SOKHANSANJ: Just a minute. 13 THE WITNESS: So the question is -- sorry, can you 14 repeat, please? 15 MR. TOUSAW: 16 668 Q You have no reason to doubt the veracity of 17 anything contained in subparagraphs A through Q 18 of paragraph 22; correct? 19 A That is correct. 20 669 Q And at paragraph M Mr. Bennett specifically 21 states that he consents to using marihuana only 22 for the spiritual purposes stated in the 23 declaration; correct? 24 A That is correct. 25 670 Q And you had no reason to doubt the veracity of 209 1 that statement, nor do you doubt the veracity of 2 that statement; correct? 3 MS. SOKHANSANJ: Well, just a minute. Two questions 4 in one. 5 MR. TOUSAW: Yes, I've sort of been doing that all 6 along. 7 671 Q But you have no reason to doubt the veracity of 8 that statement; correct? 9 A That is correct. 10 672 Q Nor do you doubt the veracity of that statement; 11 correct? 12 MS. SOKHANSANJ: I'm going to object. It's 13 irrelevant how she feels today. 14 MR. TOUSAW: 15 673 Q At the time you were reviewing this application 16 you did not doubt the veracity of that 17 statement; correct? 18 A I had no reason to doubt it. 19 674 Q Nor did you doubt it; correct? 20 A No. 21 675 Q At Exhibit D to your affidavit you attach a 22 letter to me from Mr. Denault, at that time the 23 acting director of the Office of Controlled 24 Substances, CSTD, and essentially that letter 25 denies -- informs me of the denial of 210 1 Mr. Bennett's section 56 exemption; correct? 2 A That is correct. 3 676 Q And Mr. Denault says at the second full 4 paragraph, or second full sentence of that 5 letter: 6 "Specifically you have requested that the 7 Minister of Health exercise her authority 8 under section 56 of the act on the grounds 9 that the use of cannabis is connected to 10 Mr. Bennett's spiritual faith and that 11 this practice is integrally linked to his 12 self-definition and spiritual fulfilment." 13 Correct? 14 A That is what the sentence says. 15 677 Q And the sentence encapsulates accurately what -- 16 the sentence is an accurate representation of 17 what -- well, I guess I can't ask you what 18 Mr. Denault believed or didn't believe. 19 You don't have any reason to doubt the 20 accuracy of the sentence that I just read for 21 you? 22 MS. SOKHANSANJ: The accuracy? 23 MR. TOUSAW: 24 678 Q In other words -- let's be very clear. This 25 sentence says that on Mr. Bennett's behalf, I 211 1 requested he be granted a section 56 exemption 2 because the use of cannabis is connected to his 3 spiritual faith and that this practice is 4 integrally linked to Mr. Bennett's 5 self-definition and spiritual fulfilment; 6 correct? 7 A That's what the sentence says. 8 679 Q Okay. And that was the understanding that you 9 had when reviewing Mr. Bennett's request, that 10 the use of cannabis is "connected to 11 Mr. Bennett's spiritual faith and that this 12 practice is integrally linked to his 13 self-definition and spiritual fulfilment"? 14 MS. SOKHANSANJ: Well, just a moment. The sentence 15 says that those are the grounds of Mr. Bennett's 16 request, not that Mr. Denault agrees that the 17 practice is integrally linked to his 18 self-definition and spiritual fulfilment. 19 MR. TOUSAW: 20 680 Q I'm not asking what Mr. Denault believes or 21 doesn't believe. 22 When processing Mr. Bennett's request, you 23 understood the grounds of his request to be that 24 which is set forth by Mr. Denault in the 25 sentence that we've just read two or 212 1 three times; correct? 2 A Well, actually the grounds of the request were 3 to possess and produce 7 grams of marihuana per 4 day for religious purposes. The assertions in 5 this sentence are speaking more to -- or the 6 content of this sentence are speaking more to 7 the beliefs of Mr. Bennett with respect to 8 cannabis and his self-definition and spiritual 9 fulfilment. 10 681 Q So you have no doubt that Mr. Bennett sincerely 11 believes that the use of cannabis is connected 12 to his spiritual faith; correct? 13 A Well, I've said that many, many times. 14 682 Q Okay. Well, I'm just making sure. 15 A There's no reason to doubt the sincerity of his 16 beliefs. 17 683 Q And you have no reason to doubt that the 18 practice, in other words, the use of cannabis as 19 a practice, is integrally linked to 20 Mr. Bennett's self-definition and spiritual 21 fulfilment; correct? 22 A He's made multiple statements asserting his 23 belief that the two are linked, and I have not 24 doubted those statements, so I would say, no, I 25 cannot -- I do not disagree with that statement. 213 1 684 Q Okay. Do you know who wrote the sentence that 2 I've just -- in the first instance wrote the 3 sentence that I've just read to you beginning 4 with "specifically you have requested" and 5 ending with "spiritual fulfilment"? 6 MS. SOKHANSANJ: Mr. Denault signed the letter. I'm 7 not sure what you mean by "who wrote." 8 MR. TOUSAW: 9 685 Q Well, my understanding from my past questions is 10 that this letter written by Mr. Denault is 11 essentially the final version of a draft 12 recommendation to deny the section 56 exemption; 13 correct? 14 A That is correct. 15 686 Q Okay. Did you or Ms. Tremblay write that 16 sentence that I have just read? 17 A Ms. Tremblay would have drafted the initial 18 response letter. I would have looked at the 19 draft letter, provided any input I had, and we 20 would have requested that legal services review 21 the letter before it was -- in conjunction -- 22 well, not actually in conjunction with the 23 request for a legal opinion. That would've been 24 earlier. 25 I think before I would have gone and taken 214 1 the recommendation to Mr. Denault I would have 2 made sure that I was presenting him with a 3 letter that had been reviewed by our legal 4 services. 5 687 Q Yes. And so do you know who wrote -- it doesn't 6 matter who signed. Was that sentence in the 7 draft that was presented to Mr. Denault? 8 A I believe it was. 9 688 Q And does that sentence accurately reflect your 10 understanding of the grounds of Mr. Bennett's 11 request? 12 A I'm not sure I understand your question about 13 the grounds of his request. The nature of his 14 request was he was looking for an exemption to 15 possess and produce marihuana for religious 16 purposes. I read this sentence to mean that -- 17 to document that Mr. Bennett believes that the 18 use of cannabis is connected to his spiritual 19 faith and that this practice is integrally 20 linked to his self-definition and spiritual 21 fulfilment. 22 689 Q And you wouldn't have put a sentence into a 23 letter to be presented to Mr. Denault that you 24 believed to be inaccurate; correct? 25 A No, of course not. 215 1 690 Q I'll just return to your portion of the 2 affidavit and away from the exhibits. At 3 paragraph 21 you indicate that you asked 4 Ms. Tremblay to focus on Mr. Bennett's claimed 5 right to religious freedom and the manner, if 6 any, in which it was being compromised by the 7 controls relating to the possession and 8 production of marihuana set out in the CDSA; 9 correct? 10 A That is correct. 11 691 Q And did she come to you with a conclusion on 12 that issue, the manner in which Mr. Bennett's 13 claimed right to religious freedom was being 14 compromised by those controls? 15 A Well, as I have stated before, our process in 16 assessing these requests is generally to review 17 the information in detail, carry out whatever 18 additional research may be relevant or germane 19 and where relevant to seek legal opinion. 20 In this instance and at any time when we're 21 dealing with issues pertaining to the 22 interpretation of the charter, we would obtain a 23 legal opinion. So I don't believe that 24 Ms. Tremblay came to a conclusion about whether 25 or not Mr. Bennett's right to religious freedom 216 1 was compromised in any way. We would have 2 obtained that advice from our legal services. 3 692 Q And I don't want you to give me a legal 4 conclusion on whether or not his religious 5 freedom was or wasn't being infringed. That's 6 obviously for the trier of fact. 7 MS. SOKHANSANJ: And I'm sure you don't want her to 8 tread into the content of legal advice either. 9 MR. TOUSAW: Don't want you to do that at all. 10 693 Q I'm wondering if Ms. Tremblay came back and 11 said, well, the manner, the way Mr. Bennett's 12 claim of a right to religious freedom, whether 13 or not it's accurate or not, but the manner in 14 which his claimed right to religious freedom is 15 being compromised is essentially he's not 16 allowed to use it, he's not allowed to possess 17 it, he's not allowed to produce it and therefore 18 he's not permitted to use cannabis. That's how 19 his claimed right to religious freedom is being 20 compromised by the prohibition; correct? 21 MS. SOKHANSANJ: So your question is whether 22 Ms. Tremblay came to Ms. Kula and said that? 23 MR. TOUSAW: Yeah. 24 694 Q Well, is it your understanding -- let's forget 25 about what Ms. Tremblay said -- is it your 217 1 understanding that the manner in which 2 Mr. Bennett's claim of religious freedom -- 3 putting aside whether that claim is valid under 4 the charter or not -- is it your understanding 5 that the manner in which his claimed right to 6 religious freedom was being compromised was that 7 marihuana is subject to a prohibition and he's 8 not entitled to possess it and therefore not 9 entitled to use it? 10 A Well, yes, that's my understanding because 11 that's what's in the statutory declaration and 12 your letter accompanying the statutory 13 declaration. 14 695 Q Thank you. At paragraph 22 of your affidavit 15 you indicate at the second sentence that it's 16 your understanding that "another reason that 17 production, possession and distribution of 18 substances regulated under the CDSA are 19 criminalized, except as authorized in the 20 regulation, is an expression of society's 21 collective disapproval of their use." 22 Do you see where I was reading from? 23 A Yes, I do. 24 696 Q And now I don't want to focus just on the CDSA, 25 but does that statement -- does that statement 218 1 that a reason that production, possession and 2 distribution of cannabis is criminalized, except 3 as authorized under the regulations, is an 4 expression of society's collective disapproval 5 of the use of cannabis? 6 A I'm sorry, I'm not understanding what your 7 question is. 8 697 Q Well, you say in that sentence that one of the 9 reasons that production, possession and 10 distribution of substances are criminalized is 11 to express society's collective disapproval of 12 their use; correct? 13 A Correct. 14 698 Q Okay. Do you believe that that reason applies 15 not just to the CDSA but specifically to 16 cannabis? 17 A Well, in the sense that cannabis is a substance 18 listed in the CDSA, I would say yes. 19 699 Q Okay. 20 A I mean, that was parliament's view when it 21 enacted the CDSA. 22 700 Q And now I'm asking about what you say is 23 society's collective disapproval of their use. 24 Is it your testimony that society collectively 25 disapproves of the use of cannabis? 219 1 A I think that this is a statement that speaks to 2 the intent and purposes of the CDSA. I don't -- 3 I don't see it as an expression of the public's 4 personal view on cannabis. 5 701 Q Okay. So you say that a reason that production, 6 possession and distribution of substances -- and 7 we've narrowed that down now to just cannabis, 8 so I'll rephrase what you said and I'll ask you 9 if you agree -- is a reason that production, 10 possession and distribution of cannabis is 11 criminalized an expression of society's 12 collective disapproval of the use of cannabis? 13 A To the extent that that statement, the part 14 about society's collective disapproval of their 15 use, is reflective of the intent and purpose of 16 the CDSA at the time when it was enacted, yes. 17 702 Q Okay. Did you make any efforts in considering 18 Mr. Bennett's request to determine whether or 19 not society writ large, the public, collectively 20 disapproved of the use of cannabis? 21 A I'm sorry, can you repeat the question? 22 703 Q Did you make any effort, when reviewing 23 Mr. Bennett's request, to determine whether or 24 not at the time you were reviewing the request 25 that there was a collective disapproval of the 220 1 use of cannabis by society? 2 A Well, no, because I wrote this affidavit after 3 we assessed and I made a recommendation on 4 Mr. Bennett's request, so clearly it wasn't a 5 consideration specifically at the time that I 6 was -- that I was assessing the request. 7 704 Q I ask because it's certainly possible for you to 8 write an affidavit in which you aver certain 9 pieces of information or beliefs that existed 10 before the day you're writing the affidavit 11 obviously. You could write an affidavit and 12 say -- 13 A True. 14 705 Q -- you know, I believed in the past society 15 collectively disapproves of the use of 16 marihuana. 17 A Right, but that isn't what this paragraph is 18 about. The paragraph is about the control of 19 marihuana -- or the regulation of marihuana as a 20 controlled substance, and, you know, my thinking 21 as to a reason, one reason of many, why the 22 production, possession and distribution of 23 controlled substances is -- is controlled in the 24 way that it is or restricted in the way that it 25 is. 221 1 706 Q And at page 5 of your affidavit, just above 2 paragraph 17, you have a header in boldface that 3 says "The Bennett Request"; correct? 4 A That's correct. 5 707 Q So let me ask you, in the consideration of the 6 Bennett request, was one of the factors that you 7 considered that in denying the request or 8 recommending the denial of the request that 9 society has expressed a collective disapproval 10 of the use of cannabis? 11 A I think I have already answered that question. 12 This paragraph is describing a reason why the 13 regulation of controlled substances is as it is 14 under the CDSA and is meant to reflect the 15 intents and purpose of the CDSA at the time that 16 the legislation was enacted, and that is 17 currently the view of parliament and currently 18 the view -- well, view of parliament. I mean, 19 essentially that is the state of the 20 legislation. 21 708 Q Okay. And you did say that before, but with 22 respect, you didn't actually answer the question 23 I asked, which was, at the time you were 24 considering Mr. Bennett's request and 25 recommending its denial, did you have a belief 222 1 that society had a collective disapproval of the 2 use of cannabis? 3 MS. SOKHANSANJ: Just a moment. Two things. First, 4 Mr. Bennett, please don't laugh under your 5 breath while staring at Ms. Kula. 6 MR. BENNETT: You do all sorts of -- 7 MR. TOUSAW: No, no, don't talk. Don't talk to her. 8 I know she did it too, but it's not tit for tat 9 here. 10 MS. SOKHANSANJ: So that's the first thing. Whether 11 she believed that or not isn't pertinent. The 12 question of whether it was a consideration is, 13 and she's already answered that question. 14 MR. TOUSAW: 15 709 Q And then you'll have to refresh my recollection. 16 Was that a consideration, whether or not society 17 disapproved of the use of cannabis? 18 MS. SOKHANSANJ: You don't have to answer that, 19 Ms. Kula. You don't have to refresh his 20 recollection. He gets a transcript. 21 MR. TOUSAW: Well, I'm not confident that it was 22 actually asked and answered. 23 MS. SOKHANSANJ: Well, I am confident that it was 24 asked and answered several times. 25 MR. TOUSAW: I appreciate that. That's fantastic, 223 1 but I'm not. So -- 2 MS. SOKHANSANJ: Well, that's fine. She doesn't have 3 to answer it again -- 4 MR. TOUSAW: You're directing her not to answer? 5 MS. SOKHANSANJ: -- just because you don't remember. 6 MR. TOUSAW: It's not that I don't remember. It's 7 that I don't not whether or not it was asked or 8 answered. 9 MS. SOKHANSANJ: Well, I believe you asked whether it 10 was a consideration. She explained the nature 11 of the consideration. I think it was answered. 12 I'm going to advise her not to answer it 13 further. 14 MR. TOUSAW: 15 710 Q You're aware in your role in Policy and 16 Regulatory Affairs that a majority of Canadians 17 actually support the legalization of personal 18 use of cannabis, aren't you? 19 MS. SOKHANSANJ: I'm going to advise her not to 20 answer that question. It's irrelevant who 21 supports what from a polling perspective to the 22 determination of this request. She's explained 23 how she considered this factor vis-a-vis the 24 purpose of the CDSA. 25 MR. TOUSAW: 224 1 711 Q You didn't consider the -- you didn't consider 2 irrelevant when you were drafting your affidavit 3 whether or not society collectively disapproved 4 of the use of cannabis, did you, because you put 5 it in the affidavit? 6 MS. SOKHANSANJ: She didn't put that in the 7 affidavit. The affidavit talks about the 8 purposes of the CDSA. She doesn't say in the 9 affidavit one way or another what the current 10 state of polling is in this country as to 11 approval, disapproval, the nature of approval, 12 the extent of approval, the nature of the uses 13 that are approved by, I don't know, the public, 14 whoever that may be. 15 MR. TOUSAW: 16 712 Q Well, society, what did you mean by "society" 17 when you wrote paragraph 22? 18 A I've said already several times what I meant by 19 that sentence. It is intended to be a sentence 20 that talks about the reasons why substances 21 regulated under the CDSA, why activities with 22 them are criminalized, and it is a reflection of 23 the intents and purposes of that legislative 24 framework. 25 That's what I meant by that sentence. It 225 1 was not intended to be a commentary of any kind 2 on what I know or may not or not know about the 3 relative level of approval or disapproval with 4 respect to the legalization of cannabis. 5 713 Q Okay. And it's not then meant to be an 6 expression of whether or not society actually 7 disapproves of the use of cannabis because 8 you've just said you don't know; correct? 9 A I didn't say I didn't know. I said the sentence 10 wasn't meant to reflect any of that. 11 714 Q And so that sentence is not meant to describe 12 what society actually approves or disapproves 13 of; correct? 14 A Well, I think I have already reiterated what the 15 purpose of the sentence was, so I don't see what 16 you're asking me. 17 715 Q I'm asking you what the purpose of the sentence 18 was not. Is that sentence -- 19 A But I've already told you -- 20 716 Q Is that sentence meant to reflect what society 21 approves or disapproves off in actuality? 22 MS. SOKHANSANJ: You just cut her off. She has said 23 to you what the purpose of the sentence was. By 24 extension she's answered what the purpose of the 25 sentence was not. She has explained to you what 226 1 its purpose was. She said it several times, and 2 you interrupted her as I believe she was about 3 to explain that she said that, so, Mr. Tousaw, 4 you've had your answer. 5 If you want to make arguments about 6 societal opinion, this isn't the forum in which 7 to make them. 8 MR. TOUSAW: I didn't draft this affidavit. I'm 9 asking the witness what she had in her mind when 10 she drafted this statement. 11 MS. SOKHANSANJ: And she has answered that question 12 and then some. 13 MR. TOUSAW: Okay. Well, I'll move on. I think the 14 question hasn't been answered, but we'll leave 15 that for another day. 16 MS. SOKHANSANJ: Well, maybe not in the way you would 17 like it to be answered in terms of it being an 18 answer that's helpful to you, but it's been 19 answered. 20 MR. TOUSAW: I disagree. And I don't think you 21 should criticize my witness for laughing if 22 you're going to sit there and laugh at my 23 questions. 24 MS. SOKHANSANJ: I haven't laughed at your questions. 25 MR. TOUSAW: I think that's a bit hypocritical. 227 1 MS. SOKHANSANJ: Well, he laughed, and it was 2 audible. 3 MR. TOUSAW: I just heard it. 4 MS. SOKHANSANJ: All right. Let's move on. This is 5 making the record more unwieldy than it need be. 6 MR. TOUSAW: I agree with that. 7 717 Q When you were considering whether to recommend 8 the denial or grant of Mr. Bennett's request, 9 did you consider whether or not the denial of 10 the request would deter Mr. Bennett's use of 11 cannabis? 12 A I'm sorry, can you repeat the question? 13 MR. TOUSAW: Would you read back the question, 14 please. 15 (COURT REPORTER READS BACK QUESTION 717) 16 A I don't believe that I did. 17 MR. TOUSAW: 18 718 Q When making a decision whether to recommend the 19 denial or grant Mr. Bennett's request, did you 20 consider the harm done to individuals who are 21 forced to choose between their religious 22 practice and obeying the dictates of the 23 Controlled Drugs and Substances Act? 24 A Well, I only considered Mr. Bennett when I 25 considered Mr. Bennett's request. 228 1 719 Q Did you consider the harm done to Mr. Bennett in 2 being forced to choose between his religious 3 practice and conforming to the dictates of the 4 Controlled Drugs and Substances Act? 5 A That is one of the factors that we considered. 6 720 Q Did you consider that the denial had the 7 potential to cause him significant psychological 8 stress? 9 A I can't recall having a specific consideration 10 about that, but I also understood from the 11 information in his statutory declaration that 12 Mr. Bennett has been in the practice of using 13 cannabis for his stated religious beliefs for 14 many, many years, so I don't believe that I -- 15 and has only just now in the past year and a 16 half requested an exemption from the act for 17 this purpose. So I don't think I necessarily 18 considered that the outcome of his request would 19 cause him immediate or some form of 20 psychological stress. 21 721 Q At paragraph 24, which we've come to before, of 22 your affidavit, Exhibit 1 in these 23 proceedings -- 24 A I'm sorry, which paragraph are you referring to? 25 722 Q 24. 229 1 A Right. 2 723 Q The quote from the Honourable Mr. Justice 3 Caberzan [phonetic] -- actually I've asked that 4 question. 5 At paragraph 25 of your affidavit, 6 Exhibit 1 in these proceedings, 25, you indicate 7 at the last sentence that your understanding of 8 Mr. Bennett's request was that "he did not 9 explain a religious practice or belief that 10 required him to produce and possess marihuana so 11 that he could consume 7 grams a day for his 12 religious purposes." And that's an accurate 13 statement of your understanding of Mr. Bennett's 14 request? 15 A Well, I think I've already stated earlier today 16 that, you know, a major consideration in 17 recommending that the request be denied was that 18 Mr. Bennett had failed to provide adequate 19 information to explain the practices of his 20 religion involving marihuana, particularly 21 producing and possessing marihuana to the amount 22 of 7 grams each day. 23 724 Q So was it the 7 grams each day that you 24 questioned, or was it that he used marihuana for 25 religious purposes? 230 1 A It was actually neither. It was the 2 documentation of the religious practices. There 3 was no information -- I mean, typically 4 religious practice involves some form of 5 doctrine or at least structure, something 6 ritual, some kind of an indication that there is 7 a routine or a ritual, as I've said, about, you 8 know, what is involved. 9 So in Mr. Bennett's request he talks about 10 consuming 7 grams of marihuana a day for 11 religious purposes, but there was no information 12 about is 7 grams consumed all at once, does he 13 consume it on alternate Tuesdays, does he 14 consume it alone, with other people, what 15 happens when he consumes it, what are the 16 circumstances around his consumption. 17 I mean, those are the types of information 18 that, you know, in my view define religious 19 practices, and he was pursuing an exemption 20 for -- in order to be able to possess and 21 produce marihuana for his religious practices. 22 725 Q So you felt you didn't -- it sounds like you 23 felt like you didn't have adequate information; 24 is that correct? 25 A Well, I think that's what I just said, yes. 231 1 726 Q You had a whole bunch of questions that you 2 didn't have answers to; correct? 3 A I wouldn't say those were questions. I would 4 say -- I'm just giving you examples of some of 5 the types of things that I would consider to be 6 religious practice or that I think are generally 7 defined in common parlance as samples of 8 religious practice. 9 727 Q And I take it, had you had those pieces of 10 information, you would have considered them; 11 correct? 12 MS. SOKHANSANJ: Perhaps it's late in the afternoon. 13 MR. TOUSAW: And you didn't have your caffeine. 14 MS. SOKHANSANJ: That's right, I didn't. I knew it 15 would catch up with me in the end. 16 Sorry, that one is answerable. Sorry, 17 m'mm-hmm. 18 THE WITNESS: So, I'm sorry, can you read that 19 question -- 20 MR. TOUSAW: We'll need to read it back, I assume, at 21 that point. 22 THE WITNESS: Read it back for me, please. 23 MR. TOUSAW: 24 728 Q It was if had you had had those pieces of 25 information you would have considered them; 232 1 correct? 2 A That is correct. 3 729 Q Did you reach out to Mr. Bennett or me as his 4 counsel to ask for that information? 5 A Well, I think I've already answered that 6 question, which is no, I did not. 7 730 Q Did you have discussions with Ms. Tremblay, 8 Mr. Denault or anyone else involved in 9 processing this application about reaching out 10 and asking those questions and getting that 11 information? 12 A As I've said before, we haven't had very many of 13 these requests, and our usual practice has not 14 been to engage in communication with the 15 requester, so I think it was in that vein that 16 we did not undertake to do so. 17 731 Q Were there discussions about doing that in this 18 case, reaching out and asking the questions and 19 getting the information? 20 A I do not believe so. 21 732 Q It wasn't even considered? 22 MS. SOKHANSANJ: Well, she didn't say that. She said 23 she doesn't believe there were discussions. 24 MR. TOUSAW: 25 733 Q Was it considered by you? 233 1 A I suppose -- 2 734 Q I don't want you to suppose. I don't think your 3 counsel wants you to suppose either. 4 A Okay. So I would say I don't recall. I really 5 don't recall if I consciously said to myself, 6 must ask someone whether it's appropriate for me 7 to go back to Mr. Bennett. 8 I considered the application -- sorry, the 9 request in its totality as it was submitted to 10 us. That is what my job is to do. 11 735 Q And you didn't -- you said you didn't consider 12 asking somebody whether it was appropriate to go 13 and ask questions of Mr. Bennett? 14 MS. SOKHANSANJ: Well, she said she didn't recall. 15 MR. TOUSAW: Didn't recall. Okay. 16 736 Q You weren't -- well, it doesn't matter. You 17 didn't do it. 18 MS. SOKHANSANJ: Mr. Tousaw, do you have more than 20 19 more minutes worth? 20 MR. TOUSAW: I don't think so, no. 21 MS. SOKHANSANJ: All right. If you end up having 22 more than 20 minutes worth, will that be an 23 issue for the reporter? 24 (DISCUSSION OFF THE RECORD) 25 MR. TOUSAW: 234 1 737 Q You indicated a moment ago that it was not the 2 usual practice in these relatively rare 3 situations to engage with the applicant, and I 4 think you earlier described that there had been 5 four such requests for religious exemptions 6 under section 56 that you are aware of; correct? 7 A That's correct. 8 738 Q And in the ayahuasca example there was a 9 back-and-forth dialogue between the applicant 10 and Health Canada; correct? 11 MS. SOKHANSANJ: I've already objected to questions 12 specific to the processing of other requests. 13 Ms. Kula has already explained that there was 14 one instance and that no back and forth took 15 place in the marihuana exemption request that is 16 at Exhibit B to her affidavit. 17 MR. TOUSAW: Are you directing her not to answer that 18 question? 19 MS. SOKHANSANJ: Well, you can ask about whether 20 there have been other instances. I just don't 21 want to have it particularized, any particular 22 request. 23 MR. TOUSAW: 24 739 Q Well, there's been four requests related to 25 religious exemptions under section 56, correct, 235 1 that you're aware of? 2 MS. SOKHANSANJ: I'm going to object again. You mean 3 exemption to the public interest for religious 4 purposes? 5 MR. TOUSAW: That's correct. 6 MS. SOKHANSANJ: Right. 7 MR. TOUSAW: 8 740 Q There's been four that you're aware of? 9 A I wouldn't say so much as four that I'm aware 10 of. There have been four. 11 741 Q There was no back and forth with Mr. Bennett; 12 correct? 13 A That is correct. 14 742 Q And you testified earlier that there was no back 15 and forth with the other marihuana-related 16 requests; correct? 17 A I believe that's what I said. 18 743 Q And there was back and forth in one, and it was 19 the ayahuasca example, wasn't it? 20 A I think that's what we've discussed, yes. 21 744 Q And there was a back and forth in the khat 22 example was well, wasn't there? 23 A I could not tell you at this point in time. I 24 don't have the file in front of me, and I was 25 not -- I was not in the job when that request 236 1 was decided. 2 MR. TOUSAW: I'm going to put a document in front of 3 you I suppose we'll mark as Exhibit -- 4 MS. SOKHANSANJ: 5. 5 MR. TOUSAW: -- 5 in these proceedings. 6 MS. SOKHANSANJ: This -- it looks familiar to me. 7 It's part of the material already filed? 8 MR. TOUSAW: That's correct. 9 MS. SOKHANSANJ: All right. Where is it where it's 10 already filed, just for the record? 11 MR. TOUSAW: I believe it was attached to 12 Mr. Hunter's affidavit and was referenced in 13 Mr. Bennett's application. 14 MS. SOKHANSANJ: In the application for judicial 15 review in his request for section 56 exemption? 16 MR. TOUSAW: That's correct. 17 MS. SOKHANSANJ: All right. Thank you. 18 MR. TOUSAW: Yes. 19 MS. SOKHANSANJ: That's helpful to me. Thank you. 20 MR. TOUSAW: You're welcome. We'll give you the one 21 that's going to be marked here. 22 EXHIBIT 5: Document entitled "Historical and 23 Cultural Uses of Cannabis and the Canadian 24 Marihuana Clash" 25 MR. TOUSAW: 237 1 745 Q I'm just going to ask you if you've ever seen 2 the document that's been marked as Exhibit 5 3 before? 4 A Yes, because it's part of Mr. Hunter's 5 affidavit. 6 746 Q And have you reviewed that? 7 A Yes, I have. 8 747 Q And had you seen this document, and I'll just 9 name it. It's titled "Historical and Cultural 10 Uses of Cannabis and the Canadian 'Marijuana 11 Clash,'" prepared for the Senate Special 12 Committee on Illegal Drugs by a Leah Spicer, Law 13 and Government Division, 12 April, 2002, and 14 filed in the Library of Parliament. Did you 15 review that document or did Ms. Tremblay working 16 under your direction, to your knowledge, review 17 this document prior to making a recommendation 18 of Mr. Bennett's request? 19 A I do not recall Ms. Tremblay telling me that she 20 looked at this particular document. I would say 21 most of the staff in my division are aware of 22 the broader report resulting from the Senate 23 Special Committee on Illegal Drugs. I don't 24 know whether that includes all of the related 25 documentation that was prepared for the 238 1 deliberation of the committee because it is 2 understanding that this particular document was 3 prepared for the deliberation of the committee 4 that is not part of their final report. 5 748 Q And did you review this document before making a 6 recommendation on Mr. Bennett's request? 7 A Well, I think I've already said that the only 8 time I have read it was in the context of 9 Mr. Hunter's affidavit, so I would venture to 10 say that means no. 11 749 Q Yes. It was the "only" part that I was looking 12 for because you didn't say "only" before. 13 A Oh, sorry. Okay. I apologize. 14 750 Q You said you had reviewed it. I wanted to make 15 sure of the time frame. 16 A I apologize. 17 MR. TOUSAW: Okay. It would then be, I think, 18 somewhat useless to take you through passages of 19 the document. 20 If we could take two, three minutes, I can 21 confer with Mr. Bennett. I think I'm either 22 done or within a few questions of being done. 23 (PROCEEDINGS ADJOURNED AT 4:15 P.M.) 24 (PROCEEDINGS RECONVENED AT 4:29 P.M.) 25 MR. TOUSAW: Thank you for your time today, Ms. Kula. 239 1 I don't have any further questions for you. I 2 appreciate you taking the opportunity to come 3 here. 4 THE COURT: You're welcome. 5 MS. SOKHANSANJ: I have just a few things by way of 6 re-exam. 7 RE-EXAMINATION BY MS. SOKHANSANJ: 8 751 Q I'm going to take you to paragraph 25 of your 9 affidavit. 10 A Okay. 11 752 Q Mr. Tousaw asked you some questions this 12 afternoon about the last sentence in that 13 paragraph. Are you there? 14 A Yes. 15 753 Q All right. I note that the second-last sentence 16 is: 17 "In this regard, Mr. Bennett's belief that 18 marihuana has many applications was not in 19 question." 20 Do you see that? 21 A That's correct. 22 754 Q All right. Now, Ms. Kula, can you please 23 explain, when you reviewed Mr. Bennett's request 24 for section 56 exemption, was it your 25 understanding from his request that his 240 1 consumption of 7 grams of marihuana each day was 2 for a secular purpose or a religious purpose? 3 A I'm sorry, can you ask the question again? 4 755 Q All right. You talked about some of 5 Mr. Bennett's beliefs with respect to the 6 general utility of marihuana in that paragraph. 7 A Right. 8 756 Q Is that right? 9 A Right. 10 757 Q Was it your understanding from Mr. Bennett's 11 evidence that the practice for which he was 12 seeking an exemption related to a secular 13 practice or a religious practice? 14 A Well, I understood that the purpose of the 15 request was to get an exemption for religious 16 purposes, but I -- but I guess that in reviewing 17 the information included in the request, because 18 it was devoid of information about religious 19 practices, I don't think I questioned his 20 beliefs in any way, but I suppose it was harder 21 to determine whether an exemption was in -- or 22 it wasn't hard -- it was impossible to determine 23 if an exemption was in the public interest 24 because of the lack of information about the 25 religious practices. 241 1 I don't -- I'm not sure if I answered your 2 question or not. 3 758 Q I think you did. 4 A Okay. 5 759 Q All right. I'm going to move on to another 6 area. 7 This morning Mr. Tousaw asked you some 8 questions about the UN drug conventions. Those 9 are the conventions referred to in paragraph 5 10 of your affidavit; is that right? 11 A Yes, that is true. 12 760 Q And Mr. Tousaw asked you about whether it was 13 your understanding that those conventions 14 contemplated that some signatory states may pass 15 legislation that is -- I can't recall the exact 16 wording of your question, Mr. Tousaw, so I 17 apologize if I'm putting words in your mouth -- 18 that is I believe he suggested inconsistent with 19 the conventions. Do you recall that question? 20 A I do recall the question. 21 761 Q Are there consequences for signatory states who 22 pass or enact such inconsistent legislation? 23 A Well, certainly the International Narcotics 24 Control Board and by consequence the United 25 Nations Office on Drugs and Crime, which are the 242 1 sort of two bodies that sort of oversee the 2 implementation of the conventions, would have 3 cause to comment on inconsistent legislation or, 4 whatever, policy direction, whatever it is, and 5 that is the case with Canada, just even with 6 respect to the institution of the Marihuana 7 Medical Access Regulations. 8 Because the United Nations conventions make 9 it very clear that they see cannabis as an 10 illicit substance with no therapeutic potential, 11 they don't believe that it is appropriate for 12 member states to have -- or signatories to have 13 medical access programs. 14 762 Q Okay. 15 A So that's just an example. 16 763 Q All right. 17 A There was that -- 18 764 Q You have answered my question. 19 A Okay. 20 765 Q The third item I wanted to ask you about relates 21 to questions that Mr. Tousaw put to you with 22 respect to Exhibit 14. I'm asking this question 23 and -- 24 MR. TOUSAW: Exhibit? 25 MS. SOKHANSANJ: Exhibit 4. Sorry, Exhibit 4. 14. 243 1 I'm tired. 2 MR. TOUSAW: Unless I missed a lot. 3 MS. SOKHANSANJ: Well, so let me just turn to it. 4 MR. TOUSAW: While you're flipping through it, I will 5 just interpose an objection that I think it's 6 improper for you to engage in redirect on an 7 exhibit that you essentially would not allow me 8 to question your witness on and directed her not 9 to answer on, and I would object on that basis. 10 MS. SOKHANSANJ: Yeah, I thought you might, and I 11 thought I would explain that I'm asking her 12 specifically about page 362, which was the area 13 of questioning to which I didn't object. 14 THE WITNESS: So, sorry, what is the page reference? 15 MS. SOKHANSANJ: 362. 16 THE WITNESS: Sorry. Right. 17 MS. SOKHANSANJ: 18 766 Q All right. So, Ms. Kula, is Erin Kingdom your 19 superior or inferior in the hierarchy of your 20 office? 21 MR. TOUSAW: I'm going to specifically object to that 22 question because when I asked the witness who 23 Erin Kingdom was you objected and did not allow 24 her to answer. 25 MS. SOKHANSANJ: Fair enough. I'm a little tired 244 1 this afternoon. I apologize. Let me take a 2 step back. 3 767 Q Ms. Kula, earlier today you've testified that 4 it's your understanding that no policy document 5 has ever been used to provide guidance for the 6 consideration of section 56 -- sorry, requests 7 under section 56 for exemption in the public 8 interest; is that right? 9 A That is correct. 10 768 Q The questions that Mr. Tousaw asked you about 11 the e-mail at page 362 related to an attachment 12 to that e-mail titled "Guidance-S56 Exemption in 13 Public Interest September 2006.wpd." Do you 14 recall those questions? 15 A Yes, I do. 16 769 Q All right. What is your understanding as to 17 whether that document, that attachment, has been 18 used in the process of assessing any requests 19 under section 56 for an exemption in public 20 interest? Is it your understanding that it has 21 been used or has not been used? 22 MR. TOUSAW: And I will interpose an objection that 23 that question has been asked and she gave an 24 answer. 25 MS. SOKHANSANJ: Well, she said it hasn't. 245 1 MR. TOUSAW: That's right. 2 MS. SOKHANSANJ: All right. 3 770 Q Have you ever given any indication to anyone to 4 the effect that the document should be used in 5 the assessment of section 56 requests? 6 A No. 7 771 Q Have you ever given indications otherwise, in 8 other words, explained the nature of the 9 document to anyone in your office? 10 A Have I ever given an explanation? In my broader 11 office, probably. 12 772 Q All right. And what did you explain about the 13 status of the document? 14 A That it had been developed at a point in time by 15 an individual who was working on a particular 16 file and that I had seen a draft of the 17 document, had expressed some concerns about the 18 content of the document and that ultimately, in 19 light of competing priorities, work on the 20 document had been abandoned. 21 773 Q All right. 22 A "Not progressed," I guess is a better word. I 23 wouldn't say "abandoned." 24 774 Q Just to be precise, when you're explaining the 25 nature of the document, did you also indicate as 246 1 to whether it would be appropriate to use the 2 document in assessing section 56 requests? 3 A Are you -- 4 775 Q Did you explain whether it should or should not 5 be used? 6 A I believe I said that I didn't think it was 7 appropriate given that some of the content -- I 8 had reservations about some of the content. 9 776 Q All right. So to wrap up then, to the best of 10 your recollection today and to the best of your 11 knowledge, has the document ever been used in 12 the assessment of requests under section 56 for 13 exemptions in the public interest? 14 A To my knowledge, no, the document has not been 15 used. 16 777 Q All right. Last area of questioning. This 17 morning Mr. Tousaw asked you some questions 18 about the documents that were attached to your 19 certificate under Rule 318 of the federal 20 court's rules. I think it's Exhibit 2? 21 MR. TOUSAW: I think it's 2. 22 THE WITNESS: It's right there actually. 23 MS. SOKHANSANJ: Okay. 24 778 Q Just to be perfectly clear, the documents that 25 are referred to as items 1 and 2 on Exhibit 2, 247 1 so on the first and second page, were documents 2 that were before Mr. Denault when you met with 3 him to brief him on Mr. Bennett's section 56 4 request and your recommendation; is that right? 5 A Correct. 6 779 Q In addition to those documents, just to be 7 clear, the other documents that were before 8 Mr. Denault comprised Mr. Bennett's counsel, 9 Mr. Tousaw's letter -- 10 A That's -- 11 780 Q -- and accompanying statutory declaration; is 12 that correct? 13 A That's correct. 14 781 Q All right. A draft version of the response that 15 is at Exhibit D to your affidavit? 16 A Yes, that's correct. 17 782 Q All right. With the same text as Exhibit D but 18 unsigned and not on letterhead; is that correct? 19 A Correct. 20 783 Q All right. And documents that are the subject 21 matter of legal advice or that contained legal 22 advice? 23 A Correct. 24 784 Q And were any other documents before Mr. Denault 25 when you and he met for your briefing session? 248 1 A No. 2 785 Q All right. 3 MS. SOKHANSANJ: Those are my questions. 4 MR. TOUSAW: Just one item arises. 5 CROSS-EXAMINATION BY MR. TOUSAW (continuing): 6 786 Q You were just asked about the status of the 7 interim guidance document for section 56 8 exemptions for religious purposes, and you 9 indicated that you had seen a draft of it and 10 that you had expressed concerns with the 11 content. Do I have that right so far? 12 MS. SOKHANSANJ: Okay. Before you go on, I'm just 13 going to confess to my ignorance. What is the 14 rule that permits you to re-re-exam? I mean, if 15 there is one there, I'm open to hearing about 16 it. 17 MR. TOUSAW: I'm as ignorant as you are. So we'll 18 share ignorance. 19 MS. SOKHANSANJ: All right. In that case I'm going 20 to object or perhaps take it under advisement. 21 MR. TOUSAW: Fair enough. Let me ask the question. 22 MS. SOKHANSANJ: If you want to just put the 23 questions on the record. 24 MR. TOUSAW: I have one question. 25 MS. SOKHANSANJ: And so, Ms. Kula, I'm going to 249 1 advise you not -- well, why don't you ask it -- 2 MR. TOUSAW: Yeah. 3 MS. SOKHANSANJ: -- before I give any advice. I'm 4 not necessarily objecting on this basis. I'm 5 just not sure. 6 MR. TOUSAW: 7 787 Q My question to you is, what were the concerns 8 that you expressed with the content of that 9 document? 10 MS. SOKHANSANJ: All right. So we're going to take 11 that question under advisement. 12 MR. TOUSAW: Okay. 13 MS. SOKHANSANJ: And I think then we're done? 14 MR. TOUSAW: Yes. 15 MS. SOKHANSANJ: All right. 16 MR. TOUSAW: And you will supplement the response if 17 you make a determination that it's appropriate 18 to do so? 19 MS. SOKHANSANJ: Exactly. Thank you very much. 20 MR. TOUSAW: Fair enough. Thank you. 21 REQUEST 3: Provide the concerns that Ms. Kula 22 expressed regarding the content of the interim 23 guidance document for section 56 exemptions for 24 religious purposes 25 ***REQUEST TAKEN UNDER ADVISEMENT*** 250 1 (PROCEEDINGS ADJOURNED AT 4:42 P.M.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 251 1 Reporter's Certification 2 3 I, Marguerite Maseko, RCR, Official 4 Reporter in the Province of British Columbia, 5 Canada, BCSRA No. 488, do hereby certify: 6 That the proceedings were taken down by me 7 in shorthand at the time and place herein set 8 forth and thereafter transcribed, and the same 9 is a true and correct and complete transcript of 10 said proceedings to the best of my skill and 11 ability. 12 IN WITNESS WHEREOF, I have hereunto 13 subscribed my name and seal this 1st day of 14 June, 2010. 15 16 17 18 ______________________ 19 Marguerite Maseko, RCR 20 Official Reporter 21 22 23 24 25