A Senate committee has asked the Trudeau government to come up with a plan to deal with the political and legal fallout when Canada legalizes recreational cannabis later this year, and thereby flouts its treaty obligations and international law.

Canada normally considers itself — and is widely seen as — a nation that respects treaties and lives up to its international obligations, just as it expects other countries to do.

But that international reputation for reliably upholding its legal commitments is expected to take a big hit when non-medicinal cannabis is legalized, according to evidence recently presented to the Senate’s Committee on Foreign Affairs and International Trade.

In testifying on the proposed Cannabis Act (Bill C-45), assorted legal scholars, government officials and representatives of international and domestic non-governmental organizations (NGOs), all agreed that legalizing the production, sale, distribution and use of recreational cannabis (via Bill C-45) will put Canada in breach of the UN’s three drug conventions — a move arguably inconsistent with Canada’s expressed commitment to a rules-based international order.

At the same time, witnesses disagreed before the committee over what Canada can — and should — do with respect to its state of impending illegality.

Conservative Senator Raynell Andreychuk

“Your committee notes that of the various remedial options available to the Government of Canada that were identified by witnesses and documented in this report, no single unambiguous recourse [sic] to Canada’s violation of the three international drug control treaties emerged,” said the May 8 report of the Foreign Affairs Committee, chaired by Conservative Senator and ex-judge Raynell Andreychuk.

The committee went on to recommend that Ottawa “take such action that mitigates Canada’s violation,” and that the government communicate that action “in a clear and transparent manner to Canadians, the Parliament of Canada and the international community.”

University of Ottawa law student Roojin Habibi, who is the lead author of a study of the international legal dimensions of cannabis legalization and their implications for Canada to be published soon in the Ottawa Law Review, said lawyers and judges should care about Canada’s problematic legal situation because “the contravention of international legal commitments affects us all, and it should matter to everyone.

“We have a vast compendium of international treaties and agreements in place today [and] in order for those to work properly, or to work at all, all countries that sign on to the treaty must interpret and implement its provisions in good faith,” she explained. “The rules of international treaties exist, and they have weight, because countries have agreed that they do.”

Habibi told The Lawyer’s Daily the issue matters because international law represents the best chance for the world to solve its complex global problems.

“We might not care very much about what the international law says about cannabis, but we do when it comes to denouncing violations of human rights treaties, or the rules governing nuclear weapons,” she remarked. “How can Canada promote a rules-based order in the world if it silently flouts rules that, while inconvenient, are still there? Lawyers and judges have a crucial role to play in translating this reasoning for the Canadian public.”

Dwight Newman, University of Saskatchewan College of Law

University of Saskatchewan College of Law professor Dwight Newman, whose evidence was referred to by the Senate committee, told The Lawyer’s Daily “there is no easy answer at this point to what we should do about the treaty violations.”

He suggested Canada’s impending multiple violations of the three drug control treaties “should have been avoided through appropriate action a year ago, such as through trying to pursue a classification change [of cannabis as a prohibited drug] or withdrawing [from the treaties] and re-acceding with reservations.”

In Newman’s opinion, the main practical effect if Canada does not seek to modify its relationship to the conventions “is to put Canada and Canadians in a somewhat tougher position when expecting other states to comply with their international law obligations to Canada and Canadians.”

The Senate Foreign Affairs Committee said it concurred with all the witnesses it heard, including Foreign Affairs Minister Chrystia Freeland, that Bill C-45 contravenes the 1961 Single Convention, the 1971 Convention on Psychotropic Substances and the 1988 Anti-Trafficking Convention.

“The Government of Canada needs to address Canada’s contravention of these three international drug control treaties,” its report asserts. (The conventions require signatories such as Canada to prohibit the production, sale, distribution and possession of psychotropic and narcotic drugs, including cannabis, as well as substances used in their manufacture. As a signatory, Canada is also required to make it a crime to possess, purchase or cultivate such drugs, and to punish offences with imprisonment, and by monetary penalties and confiscation.)

Some government officials testifying at the committee played down Canada’s impending violations of the conventions as only “technical” — as, in their view, cannabis legalization is consistent with the three conventions’ overarching aim to protect the health and welfare of society. But the Foreign Affairs Committee noted that the Foreign Affairs Minister herself acknowledged to senators that “the issue of the conventions is an important one, and [the government] need[s] to be clear about it.”

Freeland told the committee her government is “open to working with treaty partners to identify solutions that accommodate different approaches to cannabis within the international framework.” She said Canada has to be open to being in contravention of the conventions now in order to preserve the health and safety of Canadians. She also stressed that there was no indication that cannabis legalization will cause the U.S. to change its approach to Canadians at the Canada-U.S. border.

Government officials told the committee that Canada does not intend to take any treaty actions at this time. Rather the government intends to monitor and observe the legal and political reactions of the international community to Canada’s new approach to regulating cannabis.

Legal experts told the committee Canada can take a range of unilateral actions in order to mitigate the political and legal consequences of contravening the drug control treaties. This includes Canada denouncing, or withdrawing from, the conventions or even re-adhering under a reservation with respect to cannabis (although reservations are supposed to have specific application within the parameters of the treaty, rather than serving as a method for derogating from a party’s obligations).

Other witnesses spoke of invoking the “non-compliance principle” whereby a state admits to being in violation but still remains active on the world stage. Steve Rolles, a senior policy analyst with Transform UK,  a British think tank on drug policy and regulation, pointed out that temporary non-compliance as a prelude to, or catalyst for, a process of treaty reform “is a common pattern within the evolution of the international treaty system.”

Roojin Habibi, University of Ottawa law student

Several witnesses also suggested Canada could pursue a multilateral approach, working with like-minded countries to seek amendments to the drug conventions, or seeking to have the relevant international bodies declassify cannabis as a prohibited drug.

Habibi said there is also the option of an inter se modification, whereby Canada would seek to negotiate a side agreement that would change the effect of certain provisions as they relate to cannabis among the like-minded countries that are parties to the three drug control conventions. However, to do so in this context would be uncharted territory, one witness said.

Habibi noted that the treaties are old and the parties should eventually convene to discuss how to update them. While it would have been preferable for Canada to act earlier, options remain. “There are drawbacks with each of these approaches,” she noted. “There is no perfect solution. But some action is better than silent contravention of international law.”

It was also noted that the flexibility of drug conventions is limited if their core objectives are to be met. Newman told the committee it’s “not up to individual states to choose to follow some provisions of a treaty and not others. Canada would certainly object if its treaty partners did that in the context of their trade commitments to Canada, their open human rights commitments, or anything else,” the committee’s report states.

Newman also spoke to the committee of the possibility of delaying passage of Bill C-45 until the issue of Canada’s legal status vis-a-vis the conventions is clarified and so that Canada doesn’t “become an international treaty violator more than necessary.”

In terms of potential moves against Canada for violating the drug conventions, Habibi noted that the international drug control regime also governs the legal trade of narcotic drugs and psychotropic substances.

“As a last resort, the International Narcotics Control Board, a quasi-judicial body responsible for monitoring compliance with the international drug control treaties, has the ability to impose sanctions on parties that are out of compliance with the treaties — though — they have never taken this action before,” she noted.