Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue No. 41 - Evidence - Meeting of March 22, 2018
OTTAWA, Thursday, March 22, 2018
The Standing Senate Committee on Foreign Affairs and International Trade, to which was referred Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, met this day at 10:36 a.m. to give consideration to the bill, insofar as it relates to Canada’s international obligations.
Senator A. Raynell Andreychuk (Chair) in the chair.
The Chair: 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.
We have been given a very tight time frame within our parliamentary calendar; we have to have a report by May 1, so we are very grateful that witnesses have responded rather quickly to our request, understanding our dilemma.
I’m very pleased that today we have Steven Hoffman, Professor, Faculty of Health and Osgoode Hall Law School, York University. And by video conference from New York we have Mark A. R. Kleiman, Professor of Public Policy, Marron Institute of Urban Management, New York University.
Can I test Dr. Kleiman? He is not there. They did flash him, so I was hoping.
Dr. Hoffman, we’ll start with you and your presentation and then go to questions. We hope we will be able to connect with Dr. Kleiman. I understand you are following our hearings, and therefore you know our usual process.
Before I get to it, I will introduce myself. I’m Raynell Andreychuk from Saskatchewan, chair of the committee.
Senator Ngo: Thanh Hai Ngo, Ontario.
Senator Oh: Victor Oh, Ontario.
Senator Lankin: Frances Lankin, Ontario.
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
Senator Housakos: Leo Housakos, Quebec.
Senator Greene: Stephen Greene, Nova Scotia.
Senator Bovey: Patricia Bovey, Manitoba.
The Chair: Welcome to the committee, Dr. Hoffman. The floor is yours. There will be questions, I assure you. Thank you for coming.
Steven Hoffman, Professor, Faculty of Health and Osgoode Hall Law School, York University, as an individual: Thank you very much for having me. It’s an honour to be here as a private individual. As mentioned, I’m a full professor of law and health at York University, and as far as I can tell, I’m the only public international law scholar in Canada who is focused on health issues, so I’m quite pleased to be here as a resource for the committee to try to wade through the international legal dimensions of cannabis legalization.
Now, I’m going to start with the bad news, in a sense, that I understand this committee heard last night, which is that the proposed legislation will clearly violate three UN drug control treaties that were described yesterday.
But the good news is that Canada does have options, and hopefully Canada will be in a position where it could legalize cannabis but in a way that doesn’t make international law collateral damage in the process.
I’m going to briefly sketch out the treaties and talk about some of the options. They’re not great options, but they exist.
For a more detailed legal analysis, I circulated an in-depth paper that I wrote with a colleague, Roojin Habibi. This paper is forthcoming. It’s about to be published in the Ottawa Law Review. Specifically, when talking about the treaties, pages 12 to 19 go quite in-depth to explain exactly which provisions of the treaties will be violated by the proposed legislation.
In summary, which I’ll share now, the treaty obligations are very clear. There’s very little controversy around the fact that we will actually be in violation of them. To point you to just a couple of the key sections in the treaties that are implicated, I’ll point you to Article 4(c) of the 1961 Single Convention on Narcotic Drugs, which limits drug use “exclusively to medical and scientific purposes.”
Article 36(1)(a) of that same treaty requires state punishment for their possession, production, sale and delivery.
Moving to the 1988 trafficking convention, Article 3(2) specifically criminalizes drug possession, even if only for personal consumption, although I will flag that there are some language and loopholes around there such that that article isn’t the one I personally would be worried about. It’s the others I mentioned.
Certainly, when it comes to treaties, there’s always flexibility built into a regime, and that’s a good thing because every country is different. The flexibilities that these three treaties provide are numerous.
One would be, for example, that it specifies there must be state punishment for the possession, use and sale of drugs, but it doesn’t specify exactly what the punishment must be. So a country like Portugal has taken advantage of that flexibility by, instead of having criminal sanctions, having punishments like mandatory education around drugs.
The treaties also require that states have, in law, state punishment, but the treaties do not require countries to enforce those legal provisions. For example, the Netherlands has taken advantage of that flexibility; for example, the possession of cannabis continues to be a criminal activity, but the police, with government support, have mentioned that they won’t actually be enforcing those criminal prohibitions.
A third flexibility is that there’s a constitutional override. By that I mean that the treaties don’t expect countries to violate their own constitutions in order to be in compliance with the treaties. Bolivia took advantage of that flexibility by actually changing its constitution in 2009 in order to allow coca leaf to be possessed by its citizens, and there’s cultural importance to coca leaf in that country.
When thinking about what options Canada has available in terms of legalizing, as opposed to having a different punishment or not enforcing, there are still five options, three of which are not very good. I’ll explain in a second.
One would be that we could change the Constitution. Second, we could renegotiate the treaty. Third, we could try to obtain special exceptions. I think we can quickly rule out those three just by thinking of the fact that convincing the 32 countries in the world that currently have death penalties for drug smuggling to renegotiate the treaties or to give Canada a special exception is likely as politically feasible as adding an additional article to the Charter of Rights and Freedoms giving Canadians the constitutional right to possess cannabis. I don’t think that’s realistic, and I don’t think renegotiating the treaties at this point is realistic.
That leaves two additional options. One is to find a creative workaround, and the second would be to withdraw from the treaties.
In terms of a creative workaround, as I said, I’m an international lawyer. From a public health perspective, legalizing cannabis is a good thing, so I tried to muster as many creative legal arguments as I could to try to think through how this could be done in a way that doesn’t violate these international law treaties. I’m also an international lawyer, and I think we should ideally not be violating these treaties.
In my own professional work, I worked with students and we tried to develop what we have called a scientific purposes exemption. In their text, the treaties clearly allow that countries can make cannabis and other drugs available if it’s for a scientific purpose. So one legal construction is that we can maybe think of this legalization effort as being one big, natural experiment: that is, assessing the intergenerational effects of cannabis legalization on people.
We could make that claim. The challenge is that it would have to be real, and there is International Court of Justice jurisprudence about what constitutes a reasonable scientific purpose. There would need to be major investments in research around this, and the government’s stated objectives have never mentioned learning about the science to advance the scientific purpose when justifying this move, so it would be difficult to make that claim in the International Court of Justice. But that’s the most creative workaround that I could come up with.
The more realistic option would be withdrawing, which, to my mind, seems the most feasible option. I just wanted to emphasize that while withdrawing from a treaty is not something I would usually recommend as an international lawyer, it’s far better than breaking the international law. Withdrawing from treaties is allowed. It’s legal. Most treaties have provisions for withdrawing. In fact, the act of withdrawing is, in some respects, an act of sovereignty, just like the act of signing up to the treaty in the first place. It’s not ideal, but it’s better than violating.
The challenge with withdrawing is that as a country, we’re required to give notice. So if there was the intention or goal to legalize cannabis by July 1, 2018, we would have needed to give notice before July 1, 2017, so several months ago.
If cabinet today signalled its withdrawal, we wouldn’t be able to legally legalize cannabis under these treaties until July 1, 2019.
I always get the question of what the consequences of violating international law are. I can argue that on one hand, yes, it’s our reputation that will suffer. But in my mind, the more important reason why I’m passionate about international law is that it actually is our best mechanism for solving global problems that exist today. It’s not an amazing mechanism. In fact, it’s actually a rather weak mechanism, but it’s the best we have.
When one considers the big global challenges we face today, we are increasingly relying on other countries to follow a rules-based order. As a country, we probably want to be in a position of upholding that rules-based order and promoting it. That has been a long-term Canadian policy, at least. One need only look at the newspaper every day to see why that’s so important.
I understand that, in the context of cannabis, Canadians may not actually care about international law when it comes to cannabis itself, but Canadians probably do care about international law when it comes to chemical weapons, nuclear non-proliferation, nerve agents, human rights abuses and illegal trade barriers.
Unfortunately, as a country we can’t pick and choose which international treaties to follow without encouraging other countries to do the same.
In conclusion, I just wanted to emphasize the important role that you play in all of this. I always tell my students that the practice of international law is not what I do and it’s not what they’re doing in class, learning treaties; the practice of international law is the collection of micro decisions that take place every day in rooms like this, committees like yours and by people like you, who are deciding every day whether international law matters enough for it to be adhered to or whether it doesn’t.
So when reviewing this particular bill, Bill C-45, you’re not just reviewing its particular provisions. In a sense, Parliament is also deciding whether international law matters and to what extent.
So I’m pleased to be here as a resource to you. It’s really a great honour. Thank you very much for the invitation.
The Chair: Thank you, Dr. Hoffman. Now, we can go to questions.
Senator Oh: Welcome, professor. My question relates back to what you said a bit earlier. Assistant Deputy Minister of International Security and Political Affairs for Global Affairs Canada, Mark Gwozdecky, testified in front of this committee. He told us that withdrawing from international treaties on drug control would be “excessive and unnecessary” and a detrimental step. He also added that the federal government planned to violate our obligations under these conventions. I would like to hear your thoughts on this response.
More specifically, I wanted to ask you about the following. You are the editor of a report entitled Reconciling Canada’s Legalization of Non-Medical Cannabis with the UN Drug Control Treaties. The report concluded that Canada’s current international legal obligations are incompatible with the federal government’s plan to legalize the use of recreational marijuana. It furthermore recommended that the federal government use a scientific purpose exemption without having to withdraw from the drug control conventions.
Could you please explain to us how the report arrived at this recommendation and whether you share this view? It is my understanding that you personally believe that obtaining this exemption would prove to be extremely difficult and that withdrawing would be the more successful option available to the federal government.
Mr. Hoffman: Thank you for the question. To answer your first question, I would want to differentiate between withdrawing from the whole drug control regime, which is established by the treaties. I think that’s maybe what the testimony yesterday was about. It would be unnecessary to totally remove ourselves from all international coordination on drug control.
Instead, I’m talking about withdrawing from the treaties, if Canada could withdraw from the treaties but still participate in that system. In terms of actual formal decision making, Canada could remain an observer at the meetings where these treaties are discussed. More important, it could actually still follow basically all of the provisions. It could still be in compliance, even though it’s not a member of the treaties. There are many countries that take that approach. For example, in some countries, it’s difficult to have treaties ratified by their senate, for example, or in different places where that’s required. That’s not the case in Canada. It’s often used when the country’s government says, “We’ll be in compliance with the treaty, even though we’re not legally part of it.” That’s the distinction.
Withdrawing from the treaties would then not be an overreaction. In that respect, it’s simply alleviating us from the international legal obligation, which is Canada’s sovereign right to do, and still participating in the international community. The consequences would not be great, in my opinion.
In terms of the report, thank you for bringing attention to it. That’s the report I worked with my law students on to try to be as creative as we could. We’re trying to be good lawyers, and I was trying to train future lawyers to be creative. The one we worked on was that scientific purposes exemption. That report was published a year ago. At that time, there was still time to withdraw, but also there was still time to fund research and to make statements about how Canada was undertaking a natural experiment in order for the rest of the world to learn the best way of addressing these issues.
It still could be pursued. It’s a less convincing argument now, after an additional year of comments and explanation. For that reason, I think the best option forward is to withdraw from these treaties.
Senator Oh: It takes a year to withdraw. That means we should have withdrawn on July 1, 2017, correct?
Mr. Hoffman: In order for Canada to legally legalize cannabis on July 1, 2018, the cabinet would have needed to signal the withdrawal from the treaties before July 1, 2017.
Senator Oh: So if the government rams this through, our international reputation on application to treaties would be damaged?
Mr. Hoffman: I think the best way forward at this moment would be to withdraw from these treaties, after which the government could decide whether to immediately rejoin with a reservation, because it’s easier to have a reservation to treaties when you’re rejoining. It’s very difficult to get it when you’re already part of the regime. Alternatively, Canada could choose to be a principled, noisy objector on the outside agitating for change to this regime. It’s not a perfect regime. There are lots of problems.
In my mind, those are two options after a withdrawal: rejoin or take a principled stand.
Senator Bovey: Thank you very much for your insights. I want to come back to withdrawing and rejoining. That’s a step we might not be cognizant enough about.
So Canada could withdraw, and it is possible to rejoin with the exception or the proviso. Could you talk about that process for us a little bit, please?
Mr. Hoffman: Yes. Thank you for the question. In international law, when a country signs up to a new legal obligation, they’re always allowed to make certain reservations to those treaties. It was a mechanism intended to allow countries to participate in the international legal system, even if there’s a very small thing in it that doesn’t allow the country to otherwise be part of it.
Usually, reservations aren’t great in a sense that it’s creating different international laws for different countries. In principle, if the reservation to a treaty is too big — for example, if we say we’re going to be members of the drug control treaties, but we reserve all the provisions, and we say those aren’t binding on us, that would be ruled by the International Court of Justice as not allowed.
But if there were a specific thing such as agreeing to all the conditions except as they are applicable to cannabis, that would be allowed under international law. The challenge, though, is that there are two ways of having a reservation. One is when you’re part of the treaty. In this case, the treaties specify that you need to have enough countries positively grant Canada the exception it would be requesting. When Bolivia tried that for coca leaf, there weren’t enough countries that were willing to go out of their way to give Bolivia the exception. I don’t think Canada would get it either.
We could get it where Bolivia got it. After they withdrew from the treaties, they rejoined it as a new member. At that point, they flagged their reservation. Then the rules for reservation are different. Then you need enough countries to positively object to that reservation. Not enough countries positively objected; therefore, in Bolivia they’re within this regime, but their reservation applies to them on coca leaf. We could do the same in Canada.
Senator Bovey: Taking this the next step, what are the time frames? How long does it take to withdraw, and how long does it take before a country can request the opportunity to rejoin with reservation? I’m not a lawyer, so I need help.
Mr. Hoffman: It’s a great question. Ultimately, that depends on the specific provisions of the treaties. For these treaties, they require — it’s not exactly one-year notice; it’s slightly more than a year, rounding to July 1 or January 1. That’s the way it lines up with the different treaties. If cabinet today withdrew from the treaties, that would only legally happen on July 1, 2019. On July 1, 2019, Canada could then rejoin these treaties.
Senator Bovey: They have to rejoin the day the withdrawal from the treaties is effective? So it’s bang, bang. There’s no waiting period?
Mr. Hoffman: Presumably, Canada would rejoin with a reservation, at which point there is then a period of time when member states of those treaties are allowed to object to the reservation.
Senator Bovey: And we’re talking about the three treaties.
Mr. Hoffman: We’re talking about the three treaties, that’s right.
Senator Lankin: Thank you very much. I appreciate you being here.
Senator Bovey pursued the questions I had. I want to take it a step further in applying it directly to the politics, the public policy goal and the legal aspects. I’d like you to sort of parse your thinking that way.
If we were to follow the scenario you just set out and suggested to the government, and it could be something that was brought forward as an observation from committees, or there may be a way of enshrining it somehow, what is the damage to our credibility if the government were we to, today, say we are signalling we want to withdraw?
We know it won’t be effective until July 2019, but our intent is to submit our application with reservation, and here’s a copy of what we are submitting. Basically, we convey that we are aware this should have happened a year ago, but we’re doing it now, and we are aware that we would be technically be in violation from whenever this actually gets going, which might be September or October of this year, for a matter of six months or so.
What would the damage to our credibility be in terms of participation in international treaties?
At first I’ll say I was sort of thinking that we could live with that ambiguity for a period of time. It’s probably not an ambiguity, in particular, when you start to talk about other international treaties and the import of them, and this shouldn’t really be treated any differently. I’d appreciate your thinking on that.
Mr. Hoffman: Thank you very much for the question, senator. As a lawyer, I guess the ideal is that we’re never breaking laws, international laws included. That being said, from a perspective of the rule of international law and supporting the rule of international law, it would be far better to do exactly as you suggested, to withdraw but then signal rejoining. The message it would send is that, yes, Canada is breaking the international law. But we recognize it is international law, and we recognize that international law is important, such that we’re taking action as a country to get on the right side of the law.
Canadians every day accidentally find themselves on the wrong side of the law, and then, generally, if it’s a technical issue, if it’s accidental, they didn’t know about it, the approach is that we allow Canadians to quickly get onto the right side of the law. That’s better, although even better would be if Canada didn’t break the law in the first place.
Senator Lankin: From a legal perspective, I understand the point you’re making. When I asked the question, I also asked you to take a look at the not partisan political but small “p” political reality of what the government has done by moving ahead at this point in time and the expectation of dates for retail outlets and the investments that are being made in the production facilities and all of those sorts of things. Part of me is looking at this from a practical perspective of what can we do now. The option of providing notice on withdrawing and waiting a year for implementation, which is what some people will quickly move to as the ideal response so that we’re on side with international law, seems to have some other real implications in terms of jurisdictions, businesses, all sorts of things here in Canada.
Those are really both important aspects. I’m just looking for you to weigh in in terms of the damage to our credibility to take the option that signals that we know we’re going to be offside for a period of time, but here’s how we’re going to get back on side, versus waiting and being in compliance until the withdrawal takes effect next year.
Mr. Hoffman: From a practical perspective, I think your suggestion is a very good one. I think it would minimize damage because it sends the signal that Canada cares about international law and that we’re taking action to make sure that we’re in compliance with international law.
Senator Lankin: Do you have any indication that the government is considering that? The statements last night wouldn’t suggest it, but the actual proposal wasn’t put, I don’t think. It was specifically on the withdrawal?
The Chair: Planned.
Senator Lankin: Yes. So this proposal on the withdrawal.
The Chair: They were speaking on behalf —
Mr. Hoffman: I have no insider knowledge. I’m here as a private individual. In yesterday’s testimony, it was announced that the government doesn’t plan to take any treaty action, which I guess would include that they’re not planning to do your suggestion.
The Chair: In fact, what we received is that Uruguay isn’t planning to do anything, and the question is whether we should be following. Exactly. That was the issue.
Can I just follow up with a quick question for you, Dr. Hoffman? I think Senator Lankin talked about the practical. I want to talk about the fact that, in Canada, the authority to sign and ratify agreements is in the hands of the executive of the national government. These treaties have been negotiated by some government in the past and signed. There is a very thick report that the Senate did in the Human Rights Committee on international human rights treaties, and this would be in the like type, where steps have to be taken in Canada to make us in compliance. Some of our conventions were simply in conformity. So, when we sit in the Legal and Constitutional Committee and some others, we say, “Is Canada in compliance with its international treaties?”
The government— and this has been a few governments— will say, “We’re in conformity.” That’s one reason they give. The other is, “We have yet to fully finish our negotiations with the provinces,” because some of the implementation is with the provinces.
In this case, if they were to withdraw, would that cause, in these three treaties, an ability or a necessity to have to talk to the provinces, or is it, in your understanding of Canadian law, within the purview of the federal government?
Mr. Hoffman: Certainly, the decision to be part of treaties or to withdraw is within the federal government, the federal executive’s decision. Of course, in Canada we have a strong system of federalism, and that power is usually exercised in consultation with provinces and territories.
As to whether these treaties would require it, I don’t believe so because, if the government did decide to withdraw from the treaties but remain in conformity with the existing regime and signal to the world that they will still be in compliance with the provisions, except for on cannabis, that would mean that the existing systems would still be in place and would still work as normal.
So, in that respect, I don’t believe there would be a need for additional new involvement from the provinces and territories beyond the current involvement.
The Chair: So the evidence you gave before that we would withdraw — we would not be in compliance with the treaty, but we could then attempt to re-enter with a reservation. I’m going to put to you the same question that I did to the department officials. Canada has been a strong leader to put in an international order, and not all countries feel that way. So Canada has very much been an active player to form these treaties. Like our trade agreements and everything else, it’s a compromise. You said they weren’t the best treaties, but it’s a compromise when you want to put so many disparate countries, particularly with drugs because in some, as you say, the death penalty comes in for using marijuana. We are going the other way. So there’s all of that layering.
We’re in a very fragile international order. If you study foreign policy right now, everyone is questioning whether it will hold together because of a lot of the key actors, large actors, are violating a lot of the treaties.
To what extent do you think Canada would lose its high moral ground in negotiations? Because when you go to the UN, people rely on Canada not to put reservations in.
Mr. Hoffman: That’s right. I think we, as a country, have always been advocating for multilateralism, for the rule of law, the rule of international law. I think as a country we’re famous for it. If this legislation proceeds, this wouldn’t, of course, be the first time that Canada is on the wrong side of an international law, but it would be one whereby we’re doing it in a way that would be controversial because these treaties were negotiated. It’s a compromise, and it’s at a time when we probably need international law more now than ever.
As you mentioned, senator, in today’s climate, when we see different actors making different statements, I think the world really needs Canada and other countries to be supporting that rules-based order. Certainly, that is, I think, what we’ve been hearing from the government, which is great. I guess the key will be that, if this does proceed, Canada might find it difficult to be asking other countries about nuclear weapons, asking others about chemical weapons. I guess I know cannabis and chemical weapons are very different, but we might say, “Cannabis, it’s just a drug; it’s just one drug.” Another country would say, “Well, war is war, and all is fair in love and war.” So in that respect, that could be an argument for that. Or, “It’s just a little nuclear weapon; not a big one, just a little one.”
The Chair: And it’s an offensive thing. Similar.
Mr. Hoffman: It’s one of those things where if a country like Canada has a stellar reputation for being in compliance with international law, being a champion of international law, I do worry there might be consequences along the lines that you mentioned.
The Chair: Am I right that this committee might wish to attract the attention of the government to seriously think about this and not just say it’s a little thing? So that it’s not the legalization of marijuana that is exclusively the problem; it’s looking at our international reputation and involvement. So that may be a recommendation that there be more input into the thinking there.
Mr. Hoffman: The most key message I can probably give is that Canada can’t pick and choose which international treaties to follow without encouraging other countries to do the same.
The Chair: Thank you for coming. You got the exclusive hour.
Senator Cools: Could he expand on the position with Uruguay? Because I was under the impression that Uruguay was on its way to following Canada’s example to legalize cannabis. They’ve already done it?
The Chair: They’ve already done it, and they’ve signalled their —
Senator Cools: So we’re following them, then.
The Chair: I guess you can pick that up in another committee.
Senator Cools: Another day, another time.
The Chair: Let’s say, I don’t think they consulted us on their decision, but I could be wrong. But I think they did it unilaterally.
Thank you. This has been very helpful. Good luck to your students in pursuing these matters, which I think are very important to Canada, as we are very much part of a world dynamic and want to be there. Good luck to you and your students.
Mr. Hoffman: Thank you very much.
The Chair: We are continuing our study 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.
We have, by video conference from New York, Professor Mark Kleiman, Professor of Public Policy, Marron Institute of Urban Management, New York University.
Thank you, professor, for coming before us. I’m going to ask the committee to introduce themselves.
Senator Ngo: Thanh Hai Ngo from Ontario.
Senator Lankin: Frances Lankin from Ontario.
Senator Saint-Germain: Senator Saint-Germain from Quebec.
Senator Cools: Anne Cools from Toronto.
Senator Housakos: Leo Housakos from Quebec.
Senator Greene: Stephen Greene from Halifax.
Senator Bovey: Patricia Bovey from Manitoba.
Senator Oh: Victor Oh from Ontario.
The Chair: I’ve already introduced myself as Raynell Andreychuk, from Saskatchewan, the chair of the committee.
I trust, Professor Kleiman, that you heard all of us.
Mark A. R. Kleiman, Professor of Public Policy, Marron Institute of Urban Management, New York University, as an individual: I did. Thank you.
The Chair: I note there will be a bit of a delay, but we’re going to persist and hope that we can hear you and that we can turn to questions thereafter. We are studying the international obligations that may be affected under Bill C-45. I know the clerk has been in touch with you. If you have some opening remarks, we would appreciate hearing from you and then we will turn to questions.
Welcome to the committee.
Mr. Kleiman: Thank you, senator. It’s a great pleasure to be allowed to testify before this committee. I have relatively little to say about the international treaty obligations. That’s a matter for international lawyers, and I’m a mere policy analyst. I’d like to take a minute to focus on the practical consequences of Bill C-45 and related legislation.
It’s my view that whatever the international treaties provide, in Canada, as in the United States, cannabis prohibition is no longer a feasible policy. In the U.S., we have about a $40-billion-a-year illicit cannabis market. In Canada, it’s probably proportionate to the country’s GDP. Unless you’re willing to put quite a lot of people in prison, we do not have the option of actually enforcing the laws currently on the books, and therefore it seems to me to make more sense to adjust the laws than to leave them in place and not be able to enforce them, with the result of having a large criminal market with all of its evil social side effects.
That said, if Canada goes ahead and formally legalizes, as the United States, I believe, is in the process of doing, it should do so with due caution with respect to the possible damage to public health. The likeliest consequence of full legalization is a drastic reduction in price. We’re already seeing that in the United States, in the states that have legalized, even though it remains illegal federally. And the consequence of that drastic price decrease is likely to be an increase in very heavy use.
Over the past quarter century, we have already seen that, both in the U.S. and in Canada. I have data for the U.S. The fraction of those Americans who report using cannabis at all in the last month, who also report using every day or almost every day, has gone from 9 per cent to 40 per cent. That means there are about 8 million people in the U.S. who self-report that they smoke cannabis 25 or more days per month, and most of them smoke multiple times per day. That group accounts for about 85 per cent of the physical cannabis sold, whether legally or illegally.
About half of those people also report having the symptoms of cannabis use disorder. I think we can now say this is not a harmless drug.
The goal, then, I think, is to legalize without greatly increasing consumption. That requires maintaining something like the current price, which can only be done by taxation, and in particular by specific excise taxation based on THC content, not ad valorem taxation based on price. Because, as we’re seeing in Washington and Colorado, as the retail price falls due to market forces, the tax also falls, if you’re collecting a percentage of the price.
We should also have other policies in place designed to support moderation. Of course, all of this is consistent with the goals stated in the Single Convention and in the other international treaties of protecting health.
While protecting public health, I think it is arguable— and Uruguay has made this argument— that the existing prohibition regime no longer serves the purpose of protecting public health and needs to be replaced, but it should not be replaced with mere commercial legalization, as is currently the case with alcohol. I would much prefer policies that look closer to our current policies toward tobacco— policies which I’ve called in other contexts “grudging toleration,” where we say to people, “We’re not going to make this illegal. We don’t see any point in putting people in jail for using it, or even for selling it, but we want to discourage its use.” That’s the posture of most of the governments in the world with respect to tobacco. Contrast that with alcohol, which we treat nearly as an ordinary article of commerce, with catastrophic effects.
Other items I would suggest for the committee’s or the government’s consideration in framing the bill would be minimizing the extent to which commercial interests influence the industry, because any commercial seller of cannabis is entirely dependent on those heavy problem users. They’re most of the market. The responsible cannabis user, which ought to be the goal of policy, is of no commercial interest whatsoever because that person doesn’t consume enough to support an industry.
The retail clerks, who are the final point of contact with the consumer, shouldn’t be mere bartenders. They should be trained in pharmacology and in the prevention of substance use disorder. They should have a fiduciary responsibility to the consumer, and give advice in the consumer’s interest and not the store owner’s interest.
We ought to limit marketing. We ought to require product development and labelling that encourage people to know how much they’re taking. One advantage that alcohol users have is they can simply count their drinks and have a fairly good idea of how intoxicated they are. There’s no cannabis equivalent of a drink; a puff is not a standard unit. We ought to move in that direction.
If we wanted to get radical about it, we could even require every user to set a personal limit: How much THC do you want to be allowed to buy this month? That limit could be changed by the user but only, say, on a week’s notice. That would do something to prevent impulsive purchase from leading people down the spiral to heavy, dependent use.
I’m not sure how much of that would work. I think we’re going to have a substantial cannabis problem whatever policy we have, but we ought to aim at a policy that minimizes that problem. In doing so, I think Canada can reasonably say that it is working toward the purposes of the treaties.
Thanks for your attention. I’m now available for your questions.
The Chair: Thank you, professor. I do have some questioners.
Senator Lankin: Thank you very much. The comments that you made with respect to packaging, information, THC levels, prohibitions on the types of marketing — all those things have recently been announced by the government as a package. I think, from a public health perspective, they’re actually quite strong, but the movement to a commercialized industry will differ from province to province.
In my province of Ontario, there’s been a decision that it will be treated like alcohol, which is actually distributed, marketed and sold through government-owned and -controlled outlets. There will be separate and different ones for cannabis, but that’s the direction. In other cases, in other provinces, it’s not the same approach that’s been taken.
I wonder if you could comment on whether or not you think a government-controlled distribution system is a better approach to avoid the marketing commercial interests of the heavy-user concentration. That’s something that I think we could certainly comment on. It would be advice to provinces. It’s not something that’s contemplated federally to be controlled. I think jurisdictionally that would be a difficult thing. But I’m not positive of that, because I haven’t looked at what the legal framework for this could include.
I wonder if you could comment on that, and then I might have a second question.
Mr. Kleiman: Thank you, senator. That’s a profound question and requires, I’m afraid, a complicated answer. The most frustrating thing an academic can do when asked a question like that is to say, “Well, it depends,” and unfortunately in this case it depends.
There are cases in the U.S. of state-controlled alcohol retailing that have been organized to discourage heavy use. Unfortunately, that’s a decreasing pattern, and, increasingly, those state marketing boards have moved in the direction of simply maximizing revenue for the state.
I’m told the same pattern holds in Ontario, that the Ontario liquor board is, in fact, quite an efficient and somewhat unscrupulous pusher of the drug alcohol, to the great profit of the province’s revenue but to the great detriment of the residents’ health.
So I would say that state-controlled retailing is an excellent idea if it’s put in the health ministry and not such a good idea if it’s put under the revenue department. It’s probably better than straight commercialization. It’s probably not as good as requiring that the vendors be not-for-profit enterprises, possibly organized as consumers’ co-ops.
The goal is to not have anybody wearing a necktie spending all of his life thinking smart thoughts about how to get more people more heavily involved with cannabis. The goal should be to make cannabis available to people who want to use it in moderation, without encouraging excess, and neither a revenue-maximizing minister nor a profit-maximizing CEO is going to pursue that objective.
Senator Lankin: Second, with respect to the comments you made about potentially encouraging a regime where people can set their own limits and they have the ability to control that, to change that, whatever, but it makes people think about that, I was interested because another large area of revenue generation for governments is often gambling.
Again, in Ontario, we have somewhat Victorian views about that, and it’s not good, but there has been a significant body of work done to try to address problem gambling. While some of the revenues that come from gambling go to general government revenues, a lot is earmarked to begin with for intervention programs and all of that.
One of the things that have developed— and it’s been recognized as best in class and is now being adopted in other jurisdictions around the world— is systems built into the operating systems of slot machines, let’s say, which have players, at the beginning, set limits on the amount of time they want to spend and a limit on the number of dollars. Part of the marketing of social responsibility there is around the “know your limit, play within it” kind of messaging, and now controls are being put in place to try to engage that. It’s too early to say whether that will be effective. There’s been a considerable amount of interest in looking at how those controls are working, and longitudinal studies are going on beside the implementation of that.
I’d be interested in whether there are jurisdictions where you have seen such an approach with respect to cannabis and whether you’ve seen any of these measures with respect to interventions in problem gambling. Do you see it as an appropriate parallel that we could look at and perhaps learn from?
Mr. Kleiman: Yes, I think gambling is an important parallel. I’m only vaguely familiar with the studies of problem gambling. I would refer you to my NYU colleague Professor Natasha Dow Schüll, who wrote a book on machine gambling called Addiction by Design: Machine Gambling in Las Vegas, a remarkably profound book about gambling and addiction based on 20 years of participation both with game designers and Gamblers Anonymous. It’s a real masterpiece of ethnography.
The one piece of evidence I have that that sort of personal limit setting is effective is indirect. In Massachusetts, where that rule was put in place, the gambling industry successfully lobbied to change it so that the player could change his limit while sitting at the machine. So apparently the industry found that regulation sufficiently effective to try to work around it, but I leave it to Professor Schüll for insights about gambling.
With respect to cannabis, because of the treaties there has been remarkably little experimentation in creative measures of cannabis control. The only working example I can offer you is the Swedish system. For many years, Sweden had a personal quota for distilled spirits that was not set by the user; it was a fixed quota. It was repealed in the 1950s, and all of the statistics about alcohol-related harm, including violence, went up after its repeal. So that state-imposed quota was apparently effective, but of course it was effective under Swedish conditions, which is to say as applied to a remarkably law-abiding population.
Senator Lankin: Thank you.
The Chair: Just following up on another question, there will be a lot of commercialization in the growing of marijuana, and we see a lot of business coming in, investors from outside of Canada, those in Canada and even a question of whether some of the black market will turn itself into grow ops.
Do your comments about commercialization, which you’ve said about the selling, apply to the growing, too?
Mr. Kleiman: I think they do, in part. Alcohol gives us a good example. In the states in the U.S. where the state liquor boards have a monopoly on retailing and do it in a sales-discouraging way where they don’t have a lot of advertising, the advertising hole is filled by the manufacturers. So you can easily imagine a situation where the retailers are responsible but the producers are aggressively pushing the product. If you wanted to be really drastic about it, simply deny trademark in the cannabis business, and that would disable advertising without running afoul of any free speech concern.
But yes, I’d be very much concerned about whether the producers would step in and fill the marketing hole, and I think their marketing needs to be restricted. It seems to me cannabis marketing ought to be restricted to statements about composition of product, its price and where you can get it. I imagine the equivalent of the sort of announcement securities underwriters are allowed to make in the U.S., which can only announce that this security is available at this price and here are the perspectives. I don’t see any reason to allow people to use persuasive language to encourage other people to use more cannabis.
The Chair: Thank you.
Mr. Kleiman: I am rather puritanical on this point.
Senator Bovey: Thank you, sir. I found this interesting. I want to come back to the international policy side of this, if I may, and the discussion we’ve just had about the treaties and the steps to withdraw and be able to rejoin.
You mentioned the amount of the illicit cannabis market in the United States. You also said that the U.S. will be legalizing marijuana, and I wonder if you’ve got a sense of the timeline. If so, even if there are steps in that direction, what is that going to do with respect to the treaties of which the U.S. are part as well as Canada?
Mr. Kleiman: I should warn you that my powers of political prognostication are somewhat limited. I predicted in the years leading up to the 2016 election that we would legalize cannabis sometime during Hillary Clinton’s second term. But I’m still predicting that. I think the President elected in 2020 is likely to run on a campaign of cannabis legalization and bring in a Congress that will follow along. I think that will require the U.S. to answer the same question you’re answering now, which is what do we do about the treaties?
One option, which we heard about earlier, is withdrawal and re-accession with a reservation. That’s certainly feasible, and it seems to be very implausible that a third of the signatories would reject a re-accession by Canada or by the U.S.
The other approach I’ve seen proposed — and there’s a recent paper out by a couple of researchers at Transcrime looking at the international aspects of this and suggesting what’s called an inter se agreement, where some of the parties to an existing treaty make a side agreement. The article is more about law than I’m able to follow but makes an argument that Canada and Uruguay and perhaps the U.S. and other countries that wanted to experiment with some other form of cannabis policy might within the law be able to make an inter se agreement, but I’ll have to defer to the lawyers on that. My eyes glaze over when people start citing the Vienna Convention on the Law of Treaties.
Senator Bovey: Thank you for that. I think that’s interesting and worth pursuing.
The Chair: Before you continue, Professor Kleiman said he wasn’t a lawyer and would defer. I see Professor Hoffman wanting to make a comment about that. Do you want to add to that? We can get this debate going.
Mr. Hoffman: Thank you very much for the opportunity to comment.
I think just to clarify about inter se agreements, they definitely exist under the Vienna Convention on the Law of Treaties, except it’s a mechanism intended to allow countries to have stricter rules than what their treaties require. What it does is it would allow, for example, Canada and another country to not only have a regime under certain drugs but to add on additional drugs. It’s not designed as a way to allow countries to reduce the obligations. It would work in the opposite case, not this case.
Senator Bovey: Thank you for the clarification.
So let’s come to the present situation, where a number of states in the United States have legalized cannabis. Tell me where that fits within the international treaties, one being 57 years ago, one 46 years ago and one 30 years ago. We all know that society evolves — we have through our lifetime. Society has changed within those 30, 46 and 57 years.
With Canada looking at taking this step, and I think four states in the United States now having legalized cannabis, what does that do to the international agreements?
Mr. Kleiman: We’re actually up to nine now that have legalized.
Senator Bovey: Thank you for correcting me.
Mr. Kleiman: Including California, which is pretty much a country of its own. Note that they’ve legalized only in some sense. When people refer to the cannabis market in Washington, I have to remind them that it’s not a legal cannabis market. Everything that goes on in that market is a crime under federal law.
When my firm advised the Washington State Liquor Board, as it became the Washington State Liquor and Cannabis Board, about setting up its regulated system, I had to keep reminding people that they were issuing state licences to commit federal felonies. So we have a very uncomfortable situation in the U.S. where the states are licensing and taxing things that federal law regards as crimes. I don’t think that’s a stable situation.
I’ll defer to Professor Hoffman on the international law aspects of it. As I understand it, there are two different stories told. The story that the United States is now telling is that the treaties recognize the existence of federal systems and do not insist that the state’s parties exert power they don’t actually have. The U.S. federal government does not have the power under the Constitution to require that any state government prohibit cannabis. The federal government can pass its own law but cannot require the state to have a similar law.
One interpretation is that the United States hasn’t done anything wrong and that the individual states are separate signatories and haven’t violated our Constitution because they don’t have the obligation to match the federal law. My international lawyer friends say no, that doesn’t really pass muster. The U.S., as a state party, has a responsibility to ensure that its law is enforced within its entire territory.
The problem in the U.S. is that the federal government does not have the operational capacity to enforce the cannabis laws unless the states want to help. I don’t have much to offer on that, except that I expect the cascade to continue. I expect more and more states to legalize. Public opinion in the U.S. now is more than 60 per cent for legalization.
Senator Bovey: That’s interesting. I gather the cannabis use among youth in Colorado has decreased from 12 per cent to 9 per cent in a 2017 national survey on drug use.
Mr. Kleiman: You want to be very careful about using state-by-state data from national surveys about drug use and health and also about using year-to-year fluctuations. Nationally, in the U.S., youth cannabis use has not been increasing even as heavy adult cannabis use has been increasing. That’s partly because cannabis use and cigarette use are fairly tightly linked, and youth cigarette use in the United States, fortunately, has been going down very rapidly. I do not think we are now in a position to say what the impact of legalization at the state level is on underage use in the long run, but certainly, so far, the results are relatively encouraging.
Senator Bovey: Thank you very much.
The Chair: I think we’ve exhausted our questions. We regret there were problems to bring you on to the video earlier.
Senator Lankin: I just realized, on the question that I was interested in around the relationship between state legalization and violation of international treaties, I should know, but I don’t, whether the U.S. is a signatory. Perhaps they are. Could Professor Hoffman comment on that question, as well?
Mr. Hoffman: Sure, thank you for the opportunity. It’s definitely the case that it was the latter of what Professor Kleiman’s international legal scholar friends were telling him, which is that, yes, the states are in violation of these treaties. The reason it’s hard to hold the U.S. fully culpable is that the U.S. federal government does not itself have the criminal law power. Unlike in Canada, where it’s the same level of government that’s responsible for foreign relations as well as criminal law, in the U.S. they’re separated.
This is a common feature of federalism, so in Canada, before we are able to fully implement a trade agreement, the federal government is working and negotiating with different provinces to make it work. It is on the U.S. federal government to work with its states to make sure it is in compliance with international treaties, but it’s hard to hold that federal government culpable, given they’ve taken a strong adherence to the treaties as a policy, which is not necessarily a good thing given the public health dimensions. From a legal perspective, it’s hard to blame them.
Senator Lankin: So they are in violation and have been for some time?
Mr. Hoffman: Yes.
Mr. Kleiman: The actual situation in the U.S. is slightly— the U.S. maintains parallel criminal systems: federal, on the one hand, and state, on the other hand. So there is a federal law criminalizing cannabis, but most of our actual law enforcement capacity exists in the states and localities, so when a state legalizes and stops enforcing the federal law, the federal government simply doesn’t have enough agents. There are about 500,000 state and local police in the U.S. and 4,000 DEA agents, so the federal government can’t practically step in to fill in the gap, but it does have criminal law power and has exercised it.
The Chair: So just to follow up to your conclusion, in the United States, they would be technically in compliance because the federal government has not indicated that they are going to legalize it in any way. Is that what I’m hearing?
Mr. Kleiman: That’s an argument that has been made, but Professor Hoffman and my colleagues who know international law say it’s not right.
The Chair: Okay. Is that the federal government’s position? Is that what you’re saying?
Mr. Kleiman: The federal government’s position is that the U.S. is in compliance because we have a federal law and because the treaties allow flexibility. As soon as Colorado and Washington legalized, we flipped over on the question of whether the treaties are flexible or not. Until that point, the U.S. insisted that they were completely rigid and that Bolivia, for example, should not be allowed to re-accede with the reservation for traditional coca use. But as soon as our states had moved in the other direction, there was an enlightenment in the State Department.
The Chair: So we’re talking more international relations in politics, not law.
Mr. Kleiman: Or one might say that we’re back to the Code of Hammurabi; it depends on whose ox is being gored.
The Chair: That wasn’t the note I wanted to end on, but it may have to be.
Professor Hoffman and Professor Kleiman, you have helped us in our study and perhaps given us information on other issues that may help us in our future work. Thank you for coming before us. We again apologize for the difficulties with the video conference and hope that did not interfere with our discussion.
(The committee adjourned.)