SNUD Committee Report

CHAPTER 7: INTERNATIONAL TREATIES AND LEGISLATIVE REFORM

Any in-depth drug policy debate will inevitably lead to a discussion of the justification (or lack thereof) for using the criminal law as the primary method of repression and social control of the non-medical use of psychotropic substances. Indeed, the Le Dain Commission Report framed the issue very well in 1973:

The law is the chief instrument of social policy. It provides the framework for all the others. Whether we should use the law at all, and if so, to what degree, in attempting to reduce non-medical drug use is first of all a matter of principle, but it is also a pragmatic issue — whether we receive a return or benefit from the use of the law that justifies the cost. This turns on the relative effectiveness of the law in this field — the extent to which it is an effective deterrent of the behaviour involved in non-medical drug use — and also on the price which must be paid for the use of it in terms of various adverse effects on individuals and the society as a whole.²⁵³

The Committee heard widely disparate answers to these questions, along with a host of recommendations, ranging from calls to legalize the possession and use of virtually all substances, to demands for additional resources and renewed dedication to the task of enforcing existing prohibitions. This Chapter will examine Canada’s international treaty obligations, within the context of these recommendations.

Virtually all participants in the hearing process agreed that Canada’s policy response to the problems posed by substance use is, at present, inadequate and in need of reform. Some felt that amendments to the present legal framework should be part of the response. Many who insisted that prohibition and/or criminalization causes more harm than the substances themselves favoured the removal of criminal sanctions, at least for possession and use.²⁵⁴ On the other hand, some of those in favour of relaxing the present laws would distinguish between certain substances, arguing, for example, that legalizing heroin use is probably not a good idea.²⁵⁵ In addition to the negative consequences of involvement with the criminal justice system, many argued that prohibition contributes to the marginalization of substance users who may have difficulty obtaining much-needed health care and social services as a result.²⁵⁶

Those at the opposite end of the spectrum are worried that a relaxation of present laws would lead to widespread increases in use. They were generally unwilling to concede failure on the part of the present system, expressing the view that “Canada’s existing laws have been successful in limiting the harm caused by illicit drug use” and, consequently, “[w]e need to reinforce a balanced approach that instills meaningful and proportionate consequences for serious crime, combined with measures to reinforce desired behaviour in our young people.”²⁵⁷ Those in favour of maintaining the legislative status quo generally believe that prohibition operates as a deterrent to many and could be more effective with increased enforcement efforts.

1. INTERNATIONAL TREATIES

Canada is a Party to three international Conventions negotiated under the auspices of the United Nations. These treaties form a framework within which any amendments to existing prohibitions must be considered.

(a) The Single Convention on Narcotic Drugs (1961)

The 1961 Single Convention was so named because it replaced several earlier international conventions.²⁵⁹ It was amended in 1972 by the Protocol Amending the Single Convention on Narcotic Drugs, 1961. The Preamble to the Convention recognizes the medical use of narcotics “to be indispensable for the relief of pain and suffering,” while pointing out that “addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind.” The main purpose of the Convention is to limit the production and trade in these substances to the quantity needed to meet the medical and scientific needs of the State Parties.²⁶⁰

What is the effect of this treaty on Canada’s domestic laws? According to Department of Justice Counsel, “the single convention requires that a series of activities be criminalized, most notably the cultivation, the production, the manufacture, the extraction, the preparation, the possession, the offering for sale and the sale, the purchase, the importation and the exportation of drugs.”²⁶¹ Target substances are listed in Schedules to the Convention and their placement determines the level of control to which they will be subjected. Morphine, cocaine, cannabis, and cannabis resin are among those listed in Schedule I of the Convention. There are also provisions that apply specifically to the cultivation of the plants from which are derived opium, cocaine and cannabis. Parties to the Convention must supply an annual report on its application within their territory and provide “the text of all laws and regulations from time to time promulgated in order to give effect” to it.²⁶² The report must be made to the Secretary General and contain such information as may be requested by the Commission on Narcotic Drugs of the United Nations Economic and Social Council.

(b) The Convention on Psychotropic Substances (1971)

In 1971, the Convention on Psychotropic Substances supplemented the Single Convention by placing similarly stringent controls on a number of substances not covered by the first document. They include primarily synthetic preparations of stimulants (amphetamines), depressants (e.g. benzodiazepines and barbiturates), and hallucinogens (e.g. psilocybin, LSD, etc.). Once again, the Preamble recognizes the “medical and scientific” value of those substances and the need to restrict their use to these legitimate purposes. Once again, parties are required to make an annual report to the Secretary-General on the working of the Convention in their territories and any “[i]mportant changes in their laws and regulations concerning psychotropic substances.”²⁶⁴

(c) The Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)

Adopted in 1988, the Trafficking Convention was directed specifically against illicit traffic in narcotic drugs and psychotropic substances. The Preamble to this Convention cites “the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States.” Article three requires Parties to “adopt such measures as may be necessary to establish as criminal offences under its domestic law,” the production, manufacture, distribution, importation, exportation, sale, etc. of any narcotic drug or psychotropic substance, contrary to the provisions of the 1961 or 1971 Conventions.²⁶⁶ Parties are obliged to do the same for “the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption” contrary to the 1961 or 1971 Conventions, but subject to the individual country’s “constitutional principles and the basic concepts of its legal system.”²⁶⁷

2. CANADIAN DOMESTIC LAW

In light of our obligations under the three treaties discussed above, the question arises as to whether or to what degree Parties can change domestic prohibitions or penalties relating to narcotic or psychotropic substances, while remaining in conformity with these Conventions. Interpretations as to the limitations they may impose are numerous and varied, particularly with respect to cannabis products. For example, it has been argued that the intention of Article 36 of the Single Convention was “for the prohibition on possession to be limited to possession for the purposes of trafficking.”²⁶⁸ Conversely, the Le Dain Commission expressed the view that Article 36 of the Single Convention would oblige Canada to make possession of “cannabis, cannabis resin, and extracts and tincture of cannabis, a punishable offence.”²⁶⁹ Nevertheless, it is apparent that some European Parties to the three Conventions have managed to find ways to attenuate the impact of their drug laws without necessarily removing prohibitions. Examples can be found in a comparative overview of the domestic treatment of cannabis by six European countries, in a study conducted for The Independent Inquiry on the Misuse of Drugs Act, 1971.²⁷⁰

It may be that the legalization (or repeal of prohibitions) of any of the substances covered by the United Nations Conventions would place Parties in a position of non-compliance. That said, the impact of a small or incremental change is much less clear. For example, an official from the Department of Foreign Affairs and International Trade told the Committee “[t]he consensus view in the Department of Foreign Affairs legal community would be that it is not possible to decriminalize cannabis and to be in conformity with the three conventions.” However, the same official also said “Parties do have some latitude with respect to the penalties and sanctions they can implement to be in conformity with the conventions,” and the requirement to make some things criminal offences “does not limit the thresholds at which certain activities need to be criminal offences, so it would be possible to assert certain thresholds.”²⁷¹ The Committee believes those comments mean that Canada does have some leeway, within the limits of the Conventions, to alter the nature of the legal consequences that may flow from offences under domestic laws like the Controlled Drugs and Substances Act, and/or the point at which various penalties will attach. Obviously, any movement toward legalization, decriminalisation, or a change in penalties currently affecting substances now prohibited under the CDSA would have to be considered in the context of Canada’s international treaty obligations.

The Committee recognizes that the enforcement of existing prohibitions against substances of abuse can have a dramatically negative impact on the lives of persons who are dependent upon those substances: in some instances, it may be that those consequences outweigh the harms caused by the substance itself. On the other hand, the Committee believes that the illegal status of some substances probably discourages their use by a substantial segment of the population. Furthermore, so long as the international community, including Canada’s neighbours and trading partners, retains a prohibitionist scheme, one can only guess at the legal, health, and social repercussions that would flow from a dramatic policy shift on the part of any single country. Consequently, at this time, the Committee is not persuaded that any benefit that might be derived from the wholesale legalization of currently illicit substances, or even their possession for personal use, would offset the potentially harmful consequences that could result. In any event, there was certainly no consensus among Committee members to repeal any of the existing prohibitions in the Controlled Drugs and Substances Act.