First, thank you very much to the committee and the chair for this kind invitation to allow me to present. It's really quite an honour to be here.
I'm here as a private individual with expertise in international law. By way of background, I'm a full professor at York University in the faculty of health at Osgoode Hall Law School. As far as I can tell, I'm the only public international legal scholar in Canada who focuses on health issues. I'm really pleased to be here to convey that aspect, which I understand is an aspect of this issue that hasn't yet come before this committee, so thank you very much.
My testimony here today is informed not only based on my own research, but also based on my previous experience having worked in the international system for the World Health Organization, as well as in the UN Secretary-General's office. I've also published on this issue. In fact, one of my shorter articles was circulated to this committee for translation and for you to read. I'll refer to it later in my testimony.
My interest in being here is that I'm hoping we don't break international law in the process of legalizing cannabis. My hope is that in trying to achieve a particular objective, international law and multilateralism don't become collateral damage in this process.
I'll say right up front that I think it's very clear that the proposed legislation, as it stands, would violate the three UN drug control treaties and Canada's international legal obligations under them. But the good news is that we have options, and I'll sketch those out. Some of them aren't great. A couple are more feasible, but ultimately my hope is that this committee and Parliament insist that the government have a plan to address these international legal obligations before legislation is passed into Canadian law.
Let me walk you through these treaties that I mentioned, the three UN drug control treaties that overall govern the way the world manages narcotic drugs. I'll refer you to the material I circulated. The last sheet is an appendix, which lists some of the key treaty provisions implicated. Overall, there are three treaties. The first is the Single Convention on Narcotic Drugs, 1961. The second is the Convention on Psychotropic Substances, 1971, and the third is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.
Let me emphasize that the treaty obligations in these laws are very clear. Among international lawyers, there's really no controversy around this particular situation we find ourselves in. I am very happy to delve into the legalities during the question and answer period, but for now I just want to highlight a couple of key sections.
The first is in article 4, paragraph (c) of the single convention, which limits the use of drugs “exclusively to medical and scientific purposes”. Later in the appendix, you will see article 36(1)(a), which requires state punishment for their possession, production, sale, and delivery.
You'll see toward the bottom of the appendix circulated that article 3(2) of the trafficking convention specifically criminalizes drug possession, even if just for personal consumption. However, at the beginning of that provision, there's a pretty big loophole in that countries are allowed to not be held to that if it violates their basic law. It's a big loophole that even a country the size of Canada can drive right through.
Overall, looking at the treaties, there's no real controversy that they overall require countries to have state punishments but not necessarily criminalization of a substance like cannabis.
Of course, when looking at treaties, we find there are always flexibilities in how they're implemented. For example, the treaties don't actually specify what kind of state punishment is required. Portugal would be one example of a country that still prohibits drugs, but where people are not sent to jail and do not face criminal penalties but instead might have mandatory treatment, access to education, or a fine.
Another flexibility in the treaties is that they don't specify that the provisions have to be enforced. A country like the Netherlands still has a criminal prohibition against the possession, use, and manufacture of drugs except it's just widely stated that police won't be enforcing those provisions. That's okay under the international law.
A third flexibility is a constitutional override, whereby if a country's constitution specifically allows something that the treaty doesn't allow, the constitutional provision overrides the treaty. For example, Bolivia took advantage of this in 2009 when it added a constitutional right for its citizens to possess and consume coca leaf, which had cultural significance, as a way to, then, take advantage of that flexibility.
However, flexibilities have limitations. If we look at the case of Uruguay, we see that it is a country that is actually breaking international law at the moment. The country is arguing that general human rights norms trump the specific requirements of the UN drug control treaties. That may be a great political statement, but that's just not how international law works.
Similarly, if we look to the U.S. example, the U.S. would also currently be violating international law. However, it's harder to fault the U.S. given that in the U.S. the federal government has the legal ability to sign on to treaties whereas the states have the criminal law power to fully implement them. In that case, in the U.S., yes, they're breaking international law, but there is a federal ban and it's harder to hold them culpable. In Canada, it's the same level of government, the federal government, that has both the power to sign on to treaties as well as the power to implement them through criminal law or other mechanisms.
We have options in Canada. First, we can change our constitution. Second, we can renegotiate the treaties. Third, we can obtain special exceptions. Fourth, we can try to use some creative lawyering to work our way out of this, or fifth, we can withdraw from these treaties.
I think four of those options are not particularly feasible; three in particular are not. The way I'll impart that is that I think convincing the 32 countries that currently have death penalties for drug smuggling to renegotiate the treaties or to grant Canada a special exception seems as politically impossible as adding a constitutional right to our Canadian Charter of Rights and Freedoms for the possession of cannabis. I think everyone here would agree that's probably not politically feasible, although I defer to you on that.
From my perspective, I really tried to be a creative lawyer. If I were hired to try to think through how I would get around this international legal obligation, the best creative workaround I could find was trying to use the treaties' scientific purposes exception. As I mentioned, in the treaties, they generally have a ban and require states to prohibit narcotics, except for medical and scientific purposes. Theoretically, we could imagine that if the government and if Canada signalled that the legalization of cannabis was part of a big scientific experiment around seeing the intergenerational effects of cannabis consumption, or something like that, you could actually make a legal argument. However, for the International Court of Justice to uphold that, it would actually have to be a real thing. There would have to be major research funding to make that happen.
The other potential workaround that some people have argued for is related to something called principled non-compliance. This is where a government or a country would say that, on principle, they are not going to comply, and would then violate the treaties. I think that's a cute political strategy, but as an international lawyer, I can tell you that's just not the way international law works. Basically, that would be the equivalent of civil disobedience, except that when it's an individual doing civil disobedience, they're in a position where they can't actually withdraw from the law, whereas Canada as a country can withdraw from treaties.
That gets me to the fifth option we have, which I think is the most feasible, and that is to actually withdraw from these UN drug control treaties. I don't think that's a problem, necessarily. I think that joining a treaty is an exercise of sovereignty, and removing ourselves from a treaty is also an exercise in sovereignty. Of course it's a bit weird for an international lawyer like me to be recommending withdrawing from treaties. I'll agree that it's not my ideal solution, but it's certainly better than violating treaties, which is something I don't think any of us would want to see.
Additionally, these treaties that we're talking about aren't the best treaties out there. As I mentioned, the first one stems from 1961. They're rather outdated. They're from another era and they're actually kind of mean, in the sense that they treat people with an addiction as being evil in the text of the treaty, instead of as people who deserve dignity in treating any medical problem they might have.
Now the challenge with withdrawing from treaties is that you have to give notice. In this case, if the goal was to have cannabis legal in Canada for non-medical purposes on July 1, 2018, then cabinet would have had to give notice of withdrawal before this past July 1, 2017.
If cabinet withdraws today from the treaty, it means the earliest that we could legally legalize cannabis would be January 1, 2019. If cabinet waits for this upcoming spring, then the earliest that Canada could legally legalize cannabis under international law would be July 1, 2019.
One thing that people often ask me is why this international law stuff actually matters. I have to say, there is actually a pragmatic reason. It's not just that it would affect our reputation. By not following international law, we actually undermine the best mechanism that we have in Canada for solving the big problems facing this world. Canada can't condemn other countries for violating international law if we ourselves are planning for it. Just one read of a newspaper would show that we really need a rules-based order in our world today.
To conclude, I just wanted to emphasize the important role that this committee plays in all of this. A lot of people think of international law as something negotiated in fancy places such as New York and Geneva, but actually, the practice of international law happens in rooms like this, at committees like this, by people like you. It's a collection of micro-decisions that determine whether we're going to allow legislation to go through that's going to break international law, or alternatively, to take the small steps needed to make sure that we legalize cannabis in a way that doesn't break international law.
I'm really pleased to be here to be able to share that international legal expertise. My ultimate recommendation would be for cabinet to immediately give notice of withdrawal from these treaties, before any legislation is approved.
Thank you very much. I'm happy to answer your questions.