ISSUES RELATING TO CANADA’S INTERNATIONAL TREATIES THAT TOUCH ON DRUGS
April 19, 2018
THE STANDING SENATE COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE
The Senate of Canada
Ottawa, Ontario Canada K1A 0A4
REAL Women of Canada Ottawa Office
Box 8813 Station T Ottawa Ontario K1G 3J1 Tel: (613) 236-4001
Fax: (613) 236-7203
ISSUES RELATING TO CANADA’S INTERNATIONAL TREATIES THAT TOUCH ON DRUGS
REAL Women of Canada is a non-partisan non-denominational women’s organization, federally incorporated in 1983. The members of REAL Women of Canada come from all walks of life and from differing economic, social, cultural and religious backgrounds. We are united by our concern for the family, the basic unit of society.
REAL Women of Canada has long had an interest in the drug issue in Canada. Our concern is based on the harms caused to the addicts themselves, their families and to society.
REAL Women of Canada was accredited as an NGO in Special Consultative Status with Economic and Social Council of the United Nations in 1998. In this capacity, we have attended over 30 UN meetings both in New York and around the world.
Because of our work with the UN, we are familiar with the three UN drug treaties as well as all the UN human rights treaties.
REAL Women was closely involved with the UN meeting on drugs called UNGASS 2016, held on April 2016 in New York City. The purpose of this meeting was to review the effect of the progress made in the implementation of the UN strategy on the world drug problem up to the target year of 2019. It included an assessment of the achievements and challenges in countering the world drug problem within the framework of the three international drug control conventions and other relevant United Nations treaties. This was the first time in twenty years that such a review of the drug treaties has taken place. At this meeting, the three international drug control conventions were confirmed by world leaders who stated:
These treaties are the cornerstone principles of the global drug control system, emphasizing the health and welfare of humankind as the founding purpose of these treaties.
During this meeting, Werner Sipp, the President of the UN International Narcotics Control Board, condemned countries which, “defy the international consensus upon which international cooperation depends by legalizing drugs for non-medical uses”.
There is a good reason why the world leaders in attendance at UNGASS in 2016 endorsed the drug treaties. Antonio Mario Costa, Executive Director of the UN Office on Drugs and Crime (UNODC), after his analysis on the effect of the treaties, in an article published in the U.K. newspaper The Observer (September 5, 2010) stated:
Legal controls on drug use have been successful. Over the last decade, world output of cocaine and amphetamines has been stabilized, with a reduction in marijuana use and opium production. Without legal prohibitions against these drugs, the results would be markedly different.
Canada ratified the UN Drug Treaties which include the criminalization of possession and production of marijuana.
The UN Drug Treaties were ratified by Canada as follows:
1. Single Convention on Narcotic Drugs, 1961: ratified by Canada, October, 1961
2. Convention on Psychotropic Substances 1971: ratified by Canada, September, 1988
3. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988: Ratified by Canada, July, 1990
In addition, Canada ratified the UN human rights treaty, the Declaration on the Rights of the Child in 1991. Article 33 of this Declaration provides as follows:
States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.
By ratifying the Declaration on the Rights of the Child, in 1991, Canada has agreed to protect children from illicit drugs and prevent the use of children in the production or trafficking of drugs.
On March 7-9, 2013, the UN Human Rights Council in Geneva reviewed the Declaration on the Rights of the Child. The Council approved and affirmed the provisions of the Declaration and specifically referred to Article 33 as necessary for the protection of children against drug use and abuse.
The following provisions of Bill C-45 indicates that Canada is in non-compliance with Article 33 of the Declaration on the Rights of the Child:
Section 2 of Bill C-45 defines young person as an individual who is “between 12-18 years of age.”
Section 8 (1) (c) of the bill provides: that a young person may possess 5 grams of marijuana (or ten joints).
Section 9 (1) (b) provides: that a young person may distribute up to 5 grams of marijuana (or ten joints).
Section 12 (4) (b) provides: that private homes may grow up to 4 marijuana plants without legal sanction.
Consequently, Bill C-45 provides that individuals between 12 to 18 years of age may freely possess, use, and even share marijuana up to 5 grams at a time (10 joints). There is no recourse if a minor is seen carrying, using, or handing out marijuana. A child can literally take ten joints from his parents’ stash, hand it out to his friends, go back home, take another ten, hand them out and keep doing it as often as he wants. This will deeply affect school environments and our neighbourhoods.
If Bill C-45 is passed, Canada will clearly have failed to be in compliance with the UN Declaration on the Rights of the Child as well as the three drug control treaties.
No Notice of Withdrawal from the Treaties
Under the terms of these drug Treaties, Canada must provide the UN with a notice of withdrawal, twelve (12) months in advance. The government of Canada, however, has failed to provide such a written notice. According to the treaties, therefore, Canada cannot legalize marijuana until 2019, at the earliest, in order to comply with its international obligations.
Mark Gwozdecky, the Assistant Deputy Minister of International Security and Political Affairs at Global Affairs Canada, in his testimony before this Committee in March, 2018, stated that Canada will not be withdrawing from, or seek reservations to, or take “any treaty actions regarding the three drug conventions. In short, Canada will ignore the treaties. Mr. Gwozdecky’s creative circumventions of Canada’s commitment under the treaties – namely, that Canada will remain in compliance with the “overarching goals” of the conventions because it purportedly protects the health and safety of Canada’s citizens, is not accurate.
The UN Narcotics Control Board released its 2017 annual report in which it stated that Canada’s Bill C-45 is incompatible with the obligations assumed by Canada under the Drug Control Treaties, regardless of Canada’s assertions to the contrary.
Further, if the health and safety of the public are protected by the decriminalization of marijuana by Bill C-45, why then has Health Canada listed in its website the extensive harm that arises with the use of marijuana?
Urugua y’ s Experience with the Legalization of Marijuana
In 2013, Uruguay was the first country to regulate recreational marijuana at the national level. The regulation of marijuana in that country, however, differs significantly from that which is provided in Canada’s Bill C-45.
Under the Uruguay legislation, the government is the only supplier, putting limits on what is sold and the way it is sold. No commercialization or advertising of marijuana is permitted. Other restrictions under the Uruguay regulations include: marijuana being prohibited while driving, no consumption in enclosed public spaces, no advertising, only citizens and permanent residents may participate in the marijuana program, and they must register with The Institute for the Regulation and Control of Cannabis in order to purchase marijuana. In addition, individuals are restricted to 480 grams per year (10 grams per week) which can be obtained only in licensed pharmacies.
In contrast, Bill C-45 provides for a wide distribution and availability of marijuana depending on the regulations determined by the provincial and territorial governments who have the responsibility in respect to the distribution and sale of marijuana. Obviously, as a result, the method of sale and point of sale restrictions will differ in the many jurisdictions across Canada. Further, marijuana is to be produced in Canada as a commercial for-profit substance, unlike the situation in Uruguay.
Unexpected Consequence of Uruguay’ s Regulation of Marijuana
An unexpected consequence of Uruguay’s marijuana law is that the U.S. government invoked the Patriot Act which prohibits U.S. banks from handling funds for distributors of marijuana. In Uruguay, this is by way of the pharmacies only. International banks – both those with U.S. headquarters such as Citibank and European banks such as Santander have advised their Uruguayan branches that they are prohibited from providing services to the distributors of marijuana.
As a result, pharmacies tasked with the sale and distribution of marijuana have been cut off from the entire financial services market because the banks in Uruguay announced that every business associated with the newly legal marijuana industry risked being in violation of the U.S. drug laws and would lose their access to U.S. banks and dollar transactions.
This business isolation in Uruguay will undoubtedly also occur in Canada. This will prove to be a very difficult challenge if Bill C-45 is passed into law.
The Importance of International Treaties
By its intention to fail to comply with the international legal obligations that Canada acquired when it ratified the drug control treaties, Canada will be setting a dangerous precedent for other countries to similarly violate UN treaties. This puts in jeopardy significant treaties as the non- proliferation nuclear treaties, treaties against war crimes, and the seven human rights treaties. This creates major problems for world order and international governance. In short, since Canada is picking and choosing which treaties to follow, it will have set a dangerous precedent for the respect and the upholding of international law and this will result in the encouragement of other countries to selectively implement international conventions it has ratified. This is not a trivial matter. Canada’s violation of the drug treaties and also the Declaration on the Rights of the Child, will have long range ramifications not only for this country, but also for the world at large.
That is, the rejection by Canada of international treaties it has ratified is clearly not appropriate, and is very harmful.
The United Nations Convention on the Law of Treaties, which came into effect in January, 1980 specifically provides in Section 3 Article 54 that the termination of a treaty or the withdrawal of a party may take place with the consent of all the parties after consultation with the other contracting States. This has not occurred.
If Canada continues with its intention to pass Bill C-45, despite its many problems both in respect to its domestic applications and to international law, it must do so in a principled manner, especially as Canada prides itself in being a democratic country that respects and promotes the rule of law.