Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue No. 42 - Evidence - Meeting of March 28, 2018
OTTAWA, Wednesday, March 28, 2018
The Standing Senate Committee on Foreign Affairs and International Trade met this day at 4:16 p.m. to give consideration to the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada’s international obligations.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, the Standing Senate Committee on Foreign Affairs and International Trade is meeting today to continue our examination of the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada’s international obligations.
Before I turn to our witnesses, I would ask senators to introduce themselves.
Senator Housakos: Senator Leo Housakos from Quebec.
Senator Ngo: Senator Ngo from Ontario.
[Translation]
Senator Cormier: Senator René Cormier from New Brunswick. I am replacing Senator Bovey from Manitoba.
Senator Massicotte: Senator Paul Massicotte from Quebec.
[English]
Senator Oh: Victor Oh from Ontario.
The Chair: I’m Raynell Andreychuk from Saskatchewan.
Given the very short time span to study international obligations in regard to this legislation, I am pleased that we received some positive responses today from Dr. Line Beauchesne, Full Professor, Department of Criminology, University of Ottawa; and Dr. Armand de Mestral, Professor, Faculty of Law, McGill University. Both are here to make a presentation. Thank you for accepting our invitation. If you have opening remarks, we would be pleased to hear them now and then the senators will have some questions.
To remind senators, the minute we hear the bells, we have to adjourn. Hopefully, we can hear both testimonies and have questions and be within the time frame.
To both of our witnesses, welcome to the committee.
[Translation]
Line Beauchesne, Full Professor, Department of Criminology, University of Ottawa, as an individual: Madam Chair, I will read out my summary to make it easier for the interpreters and to make sure I cover everything in the seven minutes allotted.
In the first part of my brief, I explain the content of the three international drug conventions and their control mechanisms to give you a good understanding of the role of each of these institutions. I conclude this first part with a summary of countries’ obligations and latitudes with respect to the conventions so we are clear from the start about one thing, that legalizing cannabis in not one of those latitudes.
In the second part, I explain the four procedures for derogating from the conventions: declassification, amendment, denunciation, and reservations, with a view to showing why these approaches are non-starters. I also explain why Article 41 of the 1969 Vienna Convention is not an option either.
Having made these clarifications, in the third part of my brief, I show what options Canada has for justifying its position on legalizing cannabis by explaining the various arguments it must use in combination to support its position, arguments that go beyond purely legal strategies, which is the point I want to emphasize.
The legal avenue that must be used, since it is perfectly legitimate under the conventions, is the avenue that Uruguay used, namely, the primacy of the United Nations Charter over all other conventions, as well as the primacy of the various countries’ charters of rights, which gives them the right to restrict the application of international drug conventions. It is clear, however, that using a charter of rights in this way would amount to saying that the conventions, with their prohibitive intent, aggravate public health problems and violate human rights. A country must have sufficient political clout on the international scene to do that, especially, since the global context has changed in favour of changing the conventions.
In terms of the political avenue, there are five main phases in this recent international shift that are working in Canada’s favour politically. That also explains why there were no international or U.S. sanctions when Uruguay legalized cannabis, even from certain U.S. states.
First, the Latin American Commission on Drugs and Democracy works actively in Latin America, and also with UN bodies, on amending the conventions in order shift the focus to public health policy, pointing out that Latin American countries have paid a very high price in the war against drugs in terms of lives lost and costs to public health.
There is also the Vienna Declaration of 2010, drafted by a team of 31 international AIDS experts, led by Canadian Evan Wood. The declaration also calls on countries to amend the conventions and focus on policies that are based on scientific evidence rather than ideology, diverting money from drug prohibition to prevention and treatment. Among the thousands of signatories to this declaration were leading figures in science and medicine, heads of state, Nobel Prize winners, academic institutions, municipal governments, and hundreds of human rights, public health and justice organizations and representatives of religious faiths and civil society.
The Global Commission on Drug Policy, established in 2010, is one of the most powerful economic and political lobby groups calling for the conventions to be amended. It also funds research to gather as much solid evidence as possible on various aspects of the drug problem in order to better identify the aspects to be considered in legalization. Among its 25 commissioners are various former presidents and national ministers, as well as Kofi Annan, George Shultz, Paul Volcker, Justice Louise Arbour, and so on.
Fourth, the International Organization of American States passed a resolution in 2012 that established a working group to assess the various scenarios for a future drug policy, in particular as regards legalization. Even President Obama described this work as legitimate, though he reaffirmed the U.S. position on the issue.
Finally, the United Nations General Assembly Special Session, UNGASS, on HIV/AIDS was held in April 2016. Although the conventions were not changed and the various lobby groups previously mentioned are working to be better prepared for UN summit on drugs in 2019, the session led an important conclusion about the convention management bodies, which are now dominated by China, Russia and Iran, replacing the United States as prohibition watchdogs. The outcome document from this UNGASS did not mention that Uruguay and certain U.S. states had legalized cannabis, and that other U.S. states and Canada are preparing to do so; that more and more countries have decriminalized simple possession of all drugs; that they have heroin prescription programs, and so forth.
On the political level, this means that, unlike the aggressive American narco-diplomacy of the past against countries that were derogating or appeared to be derogating from the conventions, the countries that now dominate the convention management bodies are more concerned with maintaining prohibition in their countries rather than imposing it on the whole world. As the U.S. Assistant Secretary of State for the Bureau for International Narcotics and Law Enforcement Affairs, William R. Brownfield, said:
Things have changed since 1961. We must have enough flexibility to allow us to incorporate those changes into our policies [...] to accept the fact that some countries will have very strict drug approaches; other countries will legalize entire categories of drugs.
For our purposes, we are not saying here that Canada should call for the legalization of all drugs. We are simply saying that Canada will have to use the widespread international support for amending the conventions and take into account that the convention management bodies are no longer the only voice, nor do they speak with the same voice on this topic.
At the same time, we will have to champion the scientific route. In addition to the legal and political routes, one of the federal government’s priority objectives, mentioned specifically in the discussion paper entitled Toward the Legalization, Regulation and Restriction of Access to Marijuana, is to:
conduct ongoing data collection, including gathering baseline data, to monitor the impact of the new framework.
Therefore, Canada can argue that, in keeping with the desire expressed in 2010 by the Commission on Narcotic Drugs to make the collection of data on cannabis use a priority, the regulation of cannabis would also be consistent with that objective, and Canada could submit the data to the INCB in its annual report. In addition, Canada could argue that the World Health Organization is also in the process of revisiting the status of cannabis in the conventions.
In conclusion, it would be a mistake to base Canada’s position at the UN on the legalization of cannabis on purely legal considerations. Yes, invoking the constitutional priority of the Charter based on the right to health and security is an important argument to make in justifying the legalization of cannabis. However, the fact that legalization is consistent with UN bodies’ desire to collect scientific data on cannabis is equally important. Finally, it should be noted that Canada is not a lone wolf in this regard, even though the national legalization of cannabis is quite new, Uruguay having set the precedent. This process is also part of an increasingly well organized and vocal political and scientific lobby to change the conventions.
Regarding the fear of backlash from the UN convention management bodies, as the 2016 UNGASS showed, and the upcoming 2019 summit will bear watching, their actions clearly indicate a more defensive than offensive approach, unlike in the past. This leaves the door open for other options, demonstrated by their willingness to overlook countries that have adopted more liberal positions on illegal drugs. Their concern is clearly to maintain the prohibition in their own countries instead of forcing it on the rest of the world.
Thank you.
Armand de Mestral, Professor, Faculty of Law, McGill University, as an individual: I will make a few remarks in English, but will answer your questions in French.
[English]
I hope I’m not appearing on false terms here, because certainly unlike my colleague, I am not an expert in the international law of the oppression of drugs. I have some modest knowledge of public international law and the law governing treaties, and that is what I will speak to today.
I must say that my knowledge of this field is fairly limited, and my very distant knowledge of marijuana is so far back in time that I cannot even remember it.
I read the three conventions. I looked at the draft legislation. Clearly, there is a problem. One is not compatible with the other. If you look at the basic principle of law of the treaties, pacta sunt servanda, treaties are to be obeyed, to be respected. That’s where you have to start. I assume that there are those elsewhere in the government who have been thinking about this, because it is inevitable that they should.
Changes can be made under a treaty, firstly in accordance with the provisions of the treaty, so one should examine carefully what provisions exist, whatever institutions exist, to raise problems, raise questions posed by the treaty in question in the mind of the state concerned.
If one looks at Article 3 of the 1961 treaty, there is a provision there for discussion of changes in the scope of control. Well, I would think that’s where you would start, if you’re trying to deal with changes.
The basic rule is changes are made by agreement, not unilaterally. Of course, that’s easier if it’s a bilateral treaty than it is if you’re dealing with a multilateral treaty, which we have here. There is a procedure in the convention, the law of treaties, Article 40 dealing with the amendment of multilateral treaties, and it’s complex and it requires a dialogue with all of the other parties.
Treaties can be denounced following the procedures and the time frame set out in each treaty. I am assuming that that is not something that would be desired in this case because you have very complex treaties dealing with a wide range of drugs and psychotropic substances — and cannabis is but one of those substances. Clearly, this is the only one that the Canadian government may wish to be released from its obligations.
States are able to make reservations. There is a principle in international law with respect to multilateral treaties, given the variety of interests of the many states that might come to sign a treaty — 190 states in this case — we have a great many parties to these treaties. There is a principle that a state may indicate that certain parts of the treaty will not be binding upon it. This is permissible provided that it is not prohibited by the treaty itself, or by the nature of the obligations assumed.
Here, obviously, there are some debatable questions. All three treaties make some reference to the right to make reservations, but this right is very limited; fortunately, perhaps for Canada, all three of them do make reference to the fact that the obligation to be ready to submit international disputes over the conventions to the International Court of Justice may be the object of a reservation. I’ll come back to that. So that is a possibility.
The three treaties speak about making a reservation, but more at the time of ratification, the initial moment of joining, but arguably, the principle is there inherent in the treaty, and Canada might wish to consider making a reservation to the jurisdiction of the international court in these matters with respect to the issues covered by the new legislation.
What might happen on the part of other states? First, publicly, the public reaction: Other states can protest. Not the first time Canada has been the object of protests when we are violating either general principles of international law, or particular treaties. This is where it starts. Another state might indicate that they consider Canada is violating one or all of these treaties by adopting this new law.
What sanctions can be taken? This is something we can discuss more. In general terms, provided that Canada does not allow exports and upset the general economy of these three treaties, which deal both with internal repression and international trade and commerce in drugs. So provided Canada avoids any increase in the illegal export of cannabis to other countries, which apparently is already quite considerable, I understand, but provided there is no public sanctioning of this, then one might say it would be difficult for other states to point out what harm we are doing to them by adopting this law ourselves.
I think it must be recognized that other states can, if we adopt this law, treat Canada as being in violation of its obligations. We would then be accused of being in material breach, at which point the immediate sanction would be other states would say, “Well, we do not apply the convention to Canada. Canada is in material breach, and we consider that Canada has denounced the conventions.” Of course this would not be in our interest. It’s probably not in the interests of any other state to, in a sense, release Canada from the full range of its obligations. So it’s unlikely, I think, that that kind of measure would happen, but there clearly can be a response from other governments. We can go back to this.
There can also be private actions. I understand that in Uruguay, any pharmacy that is participating in the now legalized sale of marijuana is unable to deal with the banks, and their business is strictly a cash business. Whether this is the result of public pressure from the American government or simply pressure through the banking system, I’m frankly not aware. But I am aware that the banking system has made it very difficult for pharmacies that participate in this.
This doesn’t seem to have happened with respect to Canadian producers of marijuana. We know there are many of them. It’s very public. But one can imagine various private actions. If you think of law in Canada, Canadian banks or other companies can be ordered not to obey the orders of a foreign government, but it’s rather more difficult to order Canadian companies not to respect the pressures that they are getting on a commercial scale from other companies abroad.
Now just a couple of thoughts before I finish on what Canada might do. I think my colleague has outlined the many arguments that militate in favour of Canada and other like-minded states attempting to go to the international community and say the time has come to make certain changes in respect to cannabis, at least, if not on a broader scale. There are clearly many arguments. In legal terms, we would say there has been a fundamental change in circumstances. Society has changed. We’re moving from a model of repression to a model of either tolerance and, where necessary, medical treatment, and we are not alone.
Portugal has gone much further than any other country in simply legalizing all drugs and saying that the problems posed by drugs are now medical problems. I think it would be interesting for this committee to have some further knowledge of what has actually happened to Portugal, because Portugal has probably gone further legally than any other state that I’m aware. Of course, we have the case of Uruguay and a number of American states. Switzerland has blown hot and cold on the issue.
Clearly, we are dealing with a moment when there is a change of circumstances, and it may be necessary to seek major amendments to these three treaties. I would say it would be unwise for Canada to encourage publicly the export of cannabis that will now be produced legally in Canada. That is something that we should look at very carefully.
Now, finally, there is at least one very major precedent for the Canadian government decided in the face of 20, I think, protests from the United States and other governments that we were, by adopting the Arctic Waters Pollution Prevention Act, we were violating both general principles of international law regarding the Law of the Sea, and also violating the Geneva Conventions on the Law of the Sea.
The Canadian government at that point in 1970, having legislated in a way which clearly was seen as interfering with international shipping but where we deemed it absolutely imperative that we do so to protect the Arctic and the waters and the environment of the Arctic, took a reservation to the jurisdiction of the International Court of Justice on matters pertaining to pollution prevention. And subsequently we did so with respect to fisheries jurisdiction, at a time when this was still highly controversial.
We built a consensus, the third Convention on the Law of the Sea gave us a platform where we were able to make our arguments successfully that change was needed. But clearly in the face of protests, Canada simply said, “We will not go to the international court on this issue. We believe we are right. We believe that change has to be made to international law, and we’re prepared to do it with like-minded states.”
I guess that may be what Canada will have to do.
[Translation]
Senator Massicotte: Thank you for being here today. Ms. Beauchesne, your argument is similar to that of the Canadian government, which is to not do much, accept that there may be conflicts, and use the Charter and other arguments to negotiate its position. In other words, yes, we will be in violation of the treaty the next day, but we will continue to make arguments and put forward our opinions. It is true that the positions of the U.S. and of the rest of the world are changing, but there are still countries like China, Japan and Russia. Russia would like to find a source of conflict with us. It is no big deal for you to say that, yes, we are in violation of the treaty, yes, we are making arguments because we are honest and the Charter has primacy over all these contractual agreements. It does not bother you more than that? We are not experts, but Mr. de Mestral referred to our similar position on the treaty and we are arguing our case even if certain countries can take us to court. That is no big deal. Is that correct?
Ms. Beauchesne: Yes, international law is part of the UN, but at the same time they are in a political situation where certain countries are more equal than others and where the international agreements are part of larger frameworks. In other words, 10 years ago, I would not have said the same thing. I would have said that they are stuck with the Charter route, and that there is no international movement for change. It would have been more difficult politically. A number of countries want change, especially on cannabis, and are watching Canada closely. At the same time, Mr. Obama to a large extent withdrew from the UN management bodies because that was a very effective way of being selective about certain countries to punish them for not doing enough. All those countries want — China, Russia and Pakistan — is to make sure it does not happen in their country. There is no longer a world police philosophy. That is why Mr. Brownfield said that the avenue to pursue would not be to change the conventions across the board internationally. The conventions should be written in a way that allows one country to go in one direction, and another one to go in another direction. I am not saying that derogation from the conventions is not important. What I am saying is that it depends on the conventions. Ten years ago, this could not have been done, but now, with the changes I mentioned, I think it can. We have to pursue the three avenues.
Senator Massicotte: Mr. de Mestral, I sense that this bothers you more than it bothers Ms. Beauchesne. Is that right?
Mr. de Mestral: Yes, I think that passing this act without amending the three conventions would lead to derogation from those conventions. That is quite clear. I do not know if the UN Charter provides justification for violation of the conventions, regardless of the international conventions. Each convention binds the parties and the parties who subscribe to it are bound by it. We will be in violation. The real question is what the immediate consequences will be. It is possible that we will be taken before the International Court of Justice. If we do not want that to happen, we can try to express a reservation. We can be taken to court and make our arguments — all the arguments Ms. Beauchesne made. I wonder, however, what retaliation there might be, what the immediate consequences would be if Canada starts to derogate from part of those conventions, while still complying with the remaining parts and making sure that we do not go against our interests. For instance, if we started exporting marijuana to China, we can well imagine that there would be immediate consequences, but if what we do concerns and affects Canada alone, it is more difficult to see how other countries could retaliate, except on principle. That would not stop Mr. Trump from criticizing us if he saw an electoral advantage in doing so.
Senator Massicotte: If you were the prime minister and you saw a social rationale for it, as Prime Minister Trudeau does, what would you do? I know it is a violation of a treaty, but life is complicated. That is why we hire lawyers. What would you do as prime minister to pursue those objectives? There are a number of choices. Uruguay withdrew and expressed reservations. Is that an option? What would you do?
Mr. de Mestral: A reservation, but a reservation applies only to the International Court of Justice. We could do that, but I do not see why we would withdraw from all the other obligations that I assume we would maintain, unless we made a fundamental change in policy. If I were prime minister, I think I would try to bring together a group of countries that see the problem the same way and try to discuss our issues with the three conventions, and ways of amending those conventions to limit their application to marijuana or certain aspects of marijuana or to let each country involved take measures domestically. If enough countries supported us, I think we would then try to bring together all the members of those three conventions, all the parties, in order to make certain changes to the wording of the conventions.
Senator Massicotte: You are suggesting that this negotiation or communications plan would precede the passing of the legislation in Canada. Is that correct?
Mr. de Mestral: I am doubtful. If we do not have the courage of our convictions, I do not think the rest of the world would be very interested.
Senator Massicotte: Based on your clarification, you would take the same approach as the Prime Minister then. In other words, pass the law and address the problem afterwards. We manage our position as well as possible without losing our sovereignty, since it depends on an outside body; it is less attractive for Canada.
Mr. de Mestral: I think the argument can be made that passing this law would not affect the interests of others. That is one of the basic issues. There is an element of reciprocity. We act in our mutual interest. If we derogate from part of the treaty without any immediate effect on the interests of others, it is more difficult to see how they could retaliate, practically speaking.
Senator Massicotte: Ms. Beauchesne, is it Uruguay that withdrew from the conventions?
Ms. Beauchesne: Uruguay asserted its right to security and the primacy of the UN bill of human rights over other treaties, and the primacy of the member countries’ charter of rights over their domestic laws.
It is Bolivia that withdrew. We cannot use that route because reservations regarding these conventions typically pertain to a violation of traditional practices, which have to be respected, whether religious or of some other kind. For example, Bolivia expressed a reservation by saying that, for certain indigenous communities, such as Bolivians living in remote regions, chewing and bartering with coca leaves is a traditional practice. In this case, Bolivia’s reservation pertained to indigenous rights. It withdrew from the conventions and wanted to join again, but with that reservation, because countries express a reservation when they sign. The G8 countries refused, but the UN allowed Bolivia to join again since it was an indigenous right. It was not a question of legalizing coca leaves for the whole country, but rather just for the specific regions where indigenous persons have the right to chew and barter with coca leaves.
That is why this precedent is not really an option. Looking at draft treaties, the reservations pertain to local customs.
Let me give you an example of a reservation. In some parts of India, cannabis grows in the wild, like dandelions do here. So they cannot arrest people for growing cannabis. So an exception was made for cannabis plants that grow in the wild.
There are various reservations of that nature that prevent a country from acceding to certain local elements. That is not the situation here.
Senator Massicotte: Your approach would be to argue on the basis of elements of the Charter and to amend the regulations—
Ms. Beauchesne: No, be careful! I said “use” because, right now, there are movements that are trying to re-open the conventions and revise them. As I said, they are increasingly powerful, both politically and economically. There are more and more powerful people involved, heads of state and national leaders who are saying the conventions have to be re-opened. What I am saying, as Mr. de Mestral did, is that we have to point out that a good many countries want to re-open the conventions.
I would like to make a final point, aside from the scientific effect: Canada is not the only country derogating from the conventions. Many countries are showing tolerance on the ground. Cannabis social clubs in Spain, Belgium, France and Italy are tolerated by the governments, which take no action. The governments are watching what is happening in Canada because those clubs are growing everywhere, and since they do no harm, no action is taken. There is a lot of tolerance.
At the same time, we should not follow Portugal’s example. I am not saying that Portugal is not a sign of things to come. Portugal, like twenty or so countries, decriminalized simple possession of all drugs, and that is allowed under the conventions. Some countries never made simple possession a crime, possession without the intent to traffic, while others had criminalized it but later decriminalized it, which is allowed under the 1988 convention, which stipulates that mere possession does not necessarily have to be criminalized.
In my opinion, this cannot be compared to the decriminalization of simple possession, which the conventions allow, in contrast to the situation we are discussing, which the conventions do not allow.
Senator Massicotte: Two-thirds of members have to support any change?
Ms. Beauchesne: First, the Commission on Narcotic Drugs has to agree to examine the changes and make sure they do not violate the spirit of the conventions. Despite opposition from certain countries to Bolivia joining again — Bolivia withdrew from the conventions, expressed a reservation, and then asked to join again — the Commission on Narcotic Drugs deemed that this did not violate the spirit of the conventions, so it voted in favour of that request.
Senator Massicotte: How much support is needed to get marijuana on the list of drugs?
Ms. Beauchesne: In my opinion, it would be preferable to wait until a number of countries are ready to do it. The main obstacle is that the member countries of the convention management bodies put up a lot of resistance if it means that all countries have to accept the changes. For instance, if it was stated that cannabis would be universally legalized, that would generate a lot of resistance. On the other hand, if there were a choice between legalizing cannabis or not and if the act were drafted accordingly, I think the convention bodies would be more open to the idea.
[English]
The Chair: I’m going to have to intervene. I have a few other questioners. I’ll put you on a second round.
Senator Ngo: I wanted to continue with this questioning. Last week, Professor Hoffman, before this committee, recommended that Canada should briefly withdraw from the international convention that it is about to violate. Do you think this is the best course for Canada?
[Translation]
Ms. Beauchesne: That might not be a workable strategy, but I am apprehensive because of what it says in the minutes. Bolivia expressed this reservation on the basis of indigenous rights. I am afraid we would be using the reservation in a broader way.
I could be wrong, but from a political point of view, I would be a bit apprehensive. I know Dr. Hoffman, but I am apprehensive about the political aspect of those decisions.
[English]
Mr. de Mestral: The same way, but for strictly legal reasons. We are not, as I understand it, seeking to withdraw from most of the prohibitions. There are those who might wish us to do that, but, as far as I understand it, we’re not seeking to withdraw from the huge range of prohibitions that exist under these three conventions. We are focusing strictly on cannabis. For that reason, I think it would be a very risky thing to do for us, in Canada, to simply say we’re leaving the three conventions because there are so many other things involved apart from cannabis.
I guess we should also be thinking about the fact that there are three conventions but probably, I assume, all kinds of formal and informal lines of communication at the police level around the world, INTERPOL and all the rest of it, to ensure the enforcement of these conventions and the control and limitation of the smuggling of drugs. We surely don’t want it to be known that Canada is opting out of all of these conventions or the other arrangements, so I would not think that would be advisable. I think we have to admit that we have a problem. We want to change one part of the convention. We want at least to be allowed to do what we want to do. We have good arguments in favour of it. We should seek our allies and make those arguments as strongly as we can at the international level.
Senator Ngo: Canada is the member of the United Nations Convention on the Rights of the Child. Under that convention, Canada has an obligation to protect Canadian children from harmful substances, and to provide specific protections and provisions to, for example, Aboriginal and Indigenous children.
What are Canada’s obligations under the UN Convention on the Rights of the Child when Bill C-45 allows children or minors to have in their possession four or five grams, whatever you call it, of marijuana?
Mr. de Mestral: Is that the case? That children — they cannot buy.
Senator Ngo: They have the possession in their hand. They can have possession of four grams under Bill C-45. What is Canada’s obligation under that UN convention?
[Translation]
Ms. Beauchesne: First, there are dozens and dozens of studies that show this. The idea is that young people are already using it. We have to stop saying that the government will let them use it. They are already using it. We will start from there.
Second, the act does not say that young people must possess 5 grams of cannabis. The latest studies show that 22 per cent of minors have tried cannabis before the age of majority. We know minors will be involved in certain situations. The government simply said that possessing 5 grams or less of cannabis is not a crime. We will help them, see what we can do.
I will say something that may not be appropriate here, but I do not know who among you waited until you were 18 or 19 to have your first beer, as required by the law. Many of us drank beer before the legal drinking age. If we had faced criminal charges for that, it would not have helped. What is helpful is talking about it, prevention, action and awareness. Minors are already using it. It is through prevention and awareness that we can help them. Taboos and criminal charges will not prevent them from getting drugs, and will not tell us what they are consuming or prevent them from doing something stupid. First and foremost, we can protect young people by getting away from prohibition. Numerous studies have clearly demonstrated that criminalizing youth does not help them at all; on the contrary, it makes things worse. Further, we must never imagine that there are no drugs in prison or behind the walls.
[English]
Senator Ngo: You didn’t answer my question. My question is that legalized and criminalized are totally different because in here, right now, if the child is under the age of 12 to 17, if they have possession of four grams, they will be criminalized. Now you are legalized. That means they are free to have —
Ms. Beauchesne: No.
Senator Ngo: That’s totally different. They have possession in their hands —
Ms. Beauchesne: No.
Senator Ngo: Whether they smoke or not, I don’t know, but they can have it. But they will not be criminalized on that.
[Translation]
Ms. Beauchesne: No, under this act, minors do not have the right to have this drug, no more than alcohol. With the approach taken, that is, 5 grams, we know that these situations will arise, as they do with alcohol. Sanctions will not prevent that. The product will be seized, if it is 5 grams or less, and we will do other things through prevention, awareness, and so forth. The idea is to avoid “harming” the young people as much as possible and to focus more on prevention and awareness.
[English]
Mr. de Mestral: I agree with that interpretation. I haven’t read the law. Perhaps you’ve been reading it much more carefully. I read it twice in anticipation. I must admit it’s the first time I read it. I didn’t interpret that sentence in the sense that there is some overhanging general obligation to protect every child against every evil that might be out there.
Of course there is tobacco, there are all sorts of other evils out there. It doesn’t seem to me that we are encouraging children by this law. It may be easier to obtain, I’ll surely admit, but I can’t read the law as incitement to pass on marijuana to children. I don’t read it that way, I must say.
[Translation]
Ms. Beauchesne: I would like to clarify something. It will not be easier. Ask any minor at a high school. They will tell you it is easier to buy cannabis than cigarettes because the stores ask for proof of age when you want to buy cigarettes, whereas you can get cannabis anywhere. I think that is an important clarification.
Contrary to popular belief, the legislation will reduce young people’s access to these products because they will be sold in specific places, with controls, in contrast to the current situation where there are sellers everywhere. I do not know if there is any place in Canada where it is hard to buy.
[English]
The Chair: I think we’re straying from the international convention.
Ms. Beauchesne: Sorry.
The Chair: I think it’s a debate that will occur. Children under 12 may have access now, but it is an illegal substance except for medical use, et cetera. Should the government allow it in houses, in apartments, et cetera? The question will be: Will it be more available and therefore more accessible for children or not? Will it be of a higher grade or not? That is the subject of the Social Affairs Committee.
Ms. Beauchesne: Sorry.
The Chair: That’s the whole issue. We have very few minutes left and I want to get Senator Cormier in.
[Translation]
Senator Cormier: Actually, someone already asked the question I had. I am not an expert on international treaties, but I am trying to follow the logic. I will get to my question, but here is my line of thinking. The Government of Canada intends to pass this cannabis act, which will have an impact on its international relationships. This legislation could violate certain international conventions. To maintain its relationships, its membership in the conventions, there are various strategies that the Government of Canada could use. You talked about dialogue, for instance. You said that if you were the prime minister, you would hold consultations with various countries.
You also mentioned certain arguments. You referred to collecting data, so from the time cannabis becomes legal, we could do research and collect data, which might serve as an argument to convince the other countries of the soundness of Canada’s decision. Are there other arguments? What are the main arguments? You mentioned a few, but what are the three main arguments that Canada could use in its international relationships?
Ms. Beauchesne: In terms of combining the strategies, I think we have to take a different approach. Uruguay said yes to the right to security and health, and nothing happened to it. It said that the UN should examine its own contradictions and that it would not manage them in the UN’s place. And that was it.
I would use that strategy, while still showing that we are prepared to collaborate. I would say, here is what we have done, and like you, we are concerned about the health and safety of our citizens. Like you, we will be careful because we do not have sufficient data about cannabis and we will share that data with you because we know it is a priority. We will also work with the groups and countries that are looking for a different approach. So we have to show a spirit of cooperation and say that we are not making this choice to deviate from the conventions, but rather it is based on scientific studies that show that the best way to protect young people and to manage this product is to legalize cannabis through regulations and quality control. That is the best protection, and many studies have shown that. That is why we are making this choice. As Mr. de Mestral said, we will not impose it on other countries, but if we are asked to explain, we will be ready to cooperate.
We are not saying that we have nothing to do with their conventions, but rather that we have reacted to the studies and to the science. We want to protect young people and we are willing to talk about it.
Mr. de Mestral: I think this is a difficult situation for two reasons. It is a multilateral convention with over a hundred other countries. And those countries probably have different views and approaches. Trying to convince them is no small feat.
Second, we do not want to reject all the conventions because they include all kinds of things that we support and want to keep. We were on board initially. We are still fully involved.
So it is twice as tricky and difficult to bring about change in such a case. We can sit on our hands, but that is not really how the government reacts. The bill exists and I assume that it will move forward. We must now manage an international relations problem involving cannabis. It is quite a tricky and complicated problem. I assume the government will have to face up to the challenges. There may not have been much dialogue or discussion, even in Canada.
Senator Cormier: Does Canada have other laws that are problematic internationally? Are there other kinds of laws that require negotiation with agreements?
Mr. de Mestral: The most obvious example is the Arctic Waters Pollution Prevention Act, which specifically provides that Canada will decide what kinds of ships can navigate Arctic waters and will adopt its own rules regarding construction, which is not usually the case.
The initial reaction was extremely negative. Almost immediately, there were twenty or so protests from all our allies, the Europeans, the United States, and so forth. We had to deal with that fallout and develop a strategy to change international law. We succeeded, with some difficulty. It took us years, but one has to have the courage of one’s convictions.
We must not say that there is no problem either, because we want to preserve the rule of law in our international relationships. Managing a multilateral convention is obviously complicated, and above all, it is complicated to change it.
[English]
The Chair: I have one minute before the bells start to ring. I will restrict myself to one question.
The legislation allows, as I understand, export of marijuana for scientific and medical purposes, which Canada will define. Dr. de Mestral, you were saying that if we started exporting or importing, that might vary. Who would define, then, “for medical purposes”? Each country has a slightly different approach to what “medical” means.
Does that change your thinking? You said if there was none, you were okay with the comments you have made.
Mr. de Mestral: I still think we should be very careful. Tell the world what we are doing is our business; we are doing it here for good reason.
The Chair: We have just been cut off.
Mr. de Mestral: To start upsetting the international apple cart unnecessarily would be quite dangerous.
[Translation]
Ms. Beauchesne: I would like to add something. The conventions clearly state that it is up to the countries to define what is “medical” or not. Canada does not intend to export cannabis for any purpose other than medical purposes. So Canada has the right to export it for medical purposes, if the other country has the same definition of “medical.”
[English]
The Chair: I’m sorry, I have to cut you off. Once the bells ring, I will be reprimanded for continuing, and it doesn’t form part of the evidence. I apologize, but the Senate called the vote, and we are obliged to be there.
I do thank you for your different perspectives and some commonality in your points of view, but you have certainly enlarged our thinking and our debate. Thank you for appearing before us today.
(The committee adjourned.)