Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue No. 43 - Evidence - Meeting of April 18, 2018
OTTAWA, Wednesday, April 18, 2018
The Standing Senate Committee on Foreign Affairs and International Trade met this day at 5:14 p.m. 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.
The Chair: Good afternoon, everyone. We’re here to continue 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.
There is a request to have an in camera meeting, by two of our members, which will mean we would have to be very expeditious, finishing with the witnesses, so that we could have a few moments at the end. I trust there will be a quorum to continue at that time. If it’s all right with the rest of the senators, we can meet in camera after the public portion of the meeting.
To start the proceedings, I will ask senators introduce themselves.
Senator MacDonald: Michael MacDonald from Nova Scotia.
Senator Dawson: Dennis Dawson from Quebec.
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
Senator Cordy: Jane Cordy from Nova Scotia.
Senator Bovey: Pat Bovey from Manitoba.
Senator Massicotte: Paul Massicotte from Quebec.
Senator Ngo: Thanh Hai Ngo from Ontario.
Senator Oh: Victor Oh from Ontario.
Senator Greene: Stephen Greene from Nova Scotia.
Senator Ataullahjan: Salma Ataullahjan from Ontario.
The Chair: I am Raynell Andreychuk, the chair, from Saskatchewan.
I welcome to the committee, for our examination of Bill C-45 and related acts, Grant Wilson, President, Canadian Children’s Rights Council. And as individuals: Paul J. Larkin, Jr., Senior Legal Research Fellow, Meese Center for Legal and Judicial Studies, Institute for Constitutional Government; and Steve Rolles, Senior Policy Analyst, Transform UK.
Mr. Larkin, you’re first on the agenda. We would ask for your opening statement and then senators will no doubt have questions after all three witnesses make their presentations. Welcome to the committee.
Paul J. Larkin, Jr., Senior Legal Research Fellow, Meese Center for Legal and Judicial Studies, Institute for Constitutional Government, as an individual: Thank you very much. I want to thank you for the invitation. I’m honoured to have been invited. At the outset, I also want to thank the staff of the committee. They have been very professional and very friendly in helping me do this, not simply to testify, but to do so by video conference. I want to give them the credit they deserve.
Let me say I have submitted a statement that is about 10 pages in length that has some attachments that are basically exhibits in the form of pictures. I have also submitted some articles that I have written on these subjects. They will address in detail all of the points that I will only summarize for you here.
Let me say I’m going to make at most three or four points. The first one is that there is a risk that the passage of Bill C-45 could adversely affect the judgment of the world community regarding the reliability of Canada as a partner to international conventions. I say that because I fear that the same result may already have happened due to the changes in marijuana legislation that various states have adopted in the United States over the last 20 years.
Basically, the problem is that, by and large, the United States uses the Food and Drug Administration to decide what different types of drugs can be distributed throughout the United States. We don’t decide by vote or plebiscite what antibiotics, antivirals and antifungals should be distributed.
Congress has prohibited the interstate distribution of cannabis, and maybe Congress should revisit that decision. I think it should in light of the 20 years of debate that we have had. But it does raise the risk that if you treat cannabis differently from the way every other type of drug is being treated in a particular country, you are going to wind up leaving the international community with the impression that you are more interested in politics than in public health.
The passage of the law could create the risk of an increase of smuggling across our common border. Why? Because marijuana is often used in the United States in its edible format. Marijuana edibles are made into various different products that resemble and, in fact, are often indistinguishable from entirely lawful products. Some of these are items that children could very easily mistake for being normal candies.
It’s perhaps something that one of the other panellists, Mr. Wilson, will address. In any event, it creates this problem because the product, being indistinguishable from normal food stuffs, would make it very difficult for Canadian and American border officials to know whether or not what is being transported from Canada to the U.S. is lawful.
The third point I would like to make is one I am particularly interested in and care about and that is the risk of people driving under the influence in the United States, having consumed marijuana first in Canada. It is a serious problem in the United States, and any time one of our neighbouring nations authorizes recreational use of marijuana, it increases that risk in the United States, and could, as you can imagine, create a variety of different ugly stories particularly in border cities.
Finally, I was advised by your staff that one of the issues that you are interested in is the problem of legalizing marijuana in light of the various laws in the United States dealing with banking. I think one option you should consider, if you are going to go that route, is rather than having private ownership of marijuana distribution, you should have government ownership of marijuana distribution. The result is all receipts would be deposited not in a bank that has offices in the United States but in the Canadian Treasury. That might greatly resolve some of your problems. If not, as a fallback, perhaps, the use of a non-profit organization as the party that owns the various distribution centres.
There are a variety of different benefits from either of those options, one of which is you avoid the pursuit of an increase in demand without regard to the effect it has on public health if the government or a non-profit is perhaps running the organization. There are some other benefits as well. I’ll mention them in response to questions.
Those are the main points I would like to make, and, as I said at the outset, I’m honoured that you asked me to testify, and I’m glad to answer any questions you have.
The Chair: I should say to the members of the committee that we did receive the brief, but it has to be translated. It’s in process and you should receive it shortly.
I thank you, Mr. Larkin, for giving us your three key points so we can have some discussion today.
Steve Rolles, Senior Policy Analyst, Transform UK, as an individual: Thank you very much. I would like to thank the committee for this opportunity to address you on this important issue. I am coming to you from London, and I’m representing the Transform Drug Policy Foundation, which is a U.K.-based charity, an advocacy policy group working in the area of drug policy reform.
A growing number of countries and jurisdictions are exploring cannabis regulation. As well as Canada, Uruguay and multiple U.S. states, many countries in Latin America, the Caribbean, Europe and beyond are also exploring or developing cannabis regulation policies. This is important to emphasize: Canada is not alone in this endeavour or the challenges it raises on the international stage.
These developments in Canada and across the world take place within the international legal context of the three UN drug treaties of 1961, 1971 and 1988, all ratified by Canada and indeed by the vast majority of UN member states. The three treaties have multiple functions, crucially including the strict legal regulation of drugs, including cannabis, for scientific and medical uses. They also, however, explicitly do not permit the legal regulation of cannabis markets for non-medical uses.
It is, however, important context to note that the 1961 single convention on drugs, the treaty that established the international drug control framework and prohibitionist paradigm still in place today, was being drafted in the 1940s and 1950s, in fact, consolidating the structures and philosophy of a series of multilateral drug control treaties dating back to 1912.
This treaty, therefore, comes from an era in which the cultural, political and economic landscape was very different to the one we live in today. Our understanding of the impacts of the different drug policies on public health and community safety have evolved considerably over the last century.
The object and purpose of the treaties, as spelled out in the preamble of the 1961 single convention, is the health and welfare of humankind.
Whilst this goal naturally still commands universal support, there is no longer any such consensus behind the punitive enforcement response to non-medical cannabis enshrined in the treaties. Even if the intention of the treaties was a noble one, history demonstrates punitive prohibition has been the wrong tool, serving to undermine our health and welfare rather than to protect and promote it. Many countries, including Canada, have evidently looked at the historic failings and rightly concluded that a different approach is needed.
But as the Government of Canada clarifies its answers to the question of how to regulate, the question of how to square these developments with Canada’s international obligations under the drug treaties comes into sharper focus. Specifically, how can Canada — and other like-minded states on the same trajectory — move from a temporary period of technical non-compliance with the treaties towards a long-term arrangement that brings full compliance with the country’s international obligations yet permits sufficient policy space for national level innovation and change?
As with all treaties, the drug treaties include mechanisms for their amendment and reform. The 1961 treaty itself was notably amended in the 1971 protocol.
In theory, the drug treaties could be similarly amended, for example, to introduce sufficient flexibility for member states to explore the regulation of cannabis and other drugs. Such amendments, however, require consensus amongst state parties, and given the polarized nature of views on this subject at the UN that includes a significant and coordinated bloc of member states who are avowedly prohibitionist, achieving such a consensus seems impossible for the foreseeable future.
Even achieving the voting majority needed for modification of the legal states of cannabis that could, in theory at least, remove it from the treaty framework altogether looks impossible for the time being, notwithstanding the ongoing WHO expert committee deliberations on cannabis’ legal status.
The question is how to proceed. First, we were pleased to hear the Assistant Deputy Minister for International Security recently make clear that “Canada’s proposed approach to cannabis will result in Canada being in contravention of certain obligations related to cannabis under the UN drug conventions.”
This honest and legally accurate statement is far preferable to denying the reality of partial non-compliance or somehow attempting to hide behind dubious legal arguments to accommodate legally regulated cannabis markets such as a suggestion made by some U.S. officials that the treaties do, in fact, offer sufficient flexibility to accommodate legalization. They do not.
Such argumentation does little for the integrity of the UN-based treaty system and, we would argue, is unsustainable, serving instead to undermine respect to international law more broadly.
Some commentators have concluded that Canada must, therefore, in order to retain due respect for international law, withdraw from the conventions before it can legalize cannabis. We would suggest that this is somewhat alarmist and neither necessary nor a useful course to follow.
To quote the 2014 report of the Global Commission On Drug Policy:
Unilateral defections from the drug treaties are undesirable from the perspective of international relations and a system built on consensus. Yet the integrity of that very system is not served in the long run by dogmatic adherence to an outdated and dysfunctional normative framework.
The evolution of legal systems to account for changing circumstances is fundamental to their survival and utility, and the regulatory experiments being pursued by various states are acting as a catalyst for this process. Indeed, respect for the rule of law requires challenging those laws that are generating harm or that are ineffective.
If the treaty system is unable to accommodate the growing calls to evolve or modernize from the very member states it serves, it faces a slow drift into irrelevance as more and more countries defect from its failed prohibitionist tenets.
In this context, moving to a temporary period of technical non-compliance with certain articles of the treaties, whilst, in parallel, proactively seeking to reform and modernize the outdated and malfunctioning drug control framework, would seem to be far more respectful of the treaty system than abandoning the system altogether, propping up a failing system with compromise reforms, or hiding behind dubious legal arguments.
Temporary non-compliance as a prelude to or catalyst for a process of treaty reform is a common pattern within the evolution of the international treaty system. Time is on Canada’s side. It is better to resolve these issues patiently and properly than be rushed into an inadequate compromise.
Canada’s reforms are being implemented in the interests of the health and well-being of Canadian citizens. This was the job given to the federal task force and then to the Health Canada team, and they have both discharged their duties in a manner entirely in line with the core values of the UN Charter and its commitment to health, human rights, development, peace and security.
In this context, rather than being a moment for Canada to cower in shame, it is a moment for Canada to continue its history of principled leadership on the international stage in the furtherment and defence of the core values of the UN. While it may be a bumpy road, in the medium to long term, Canada’s international reputation will be enhanced, not jeopardized, if it proceeds on these terms.
Certainly the precise contours of how these questions will play out is unclear. It is true that we are in uncharted territory as far as the drug treaties are concerned, but again, it is important to stress that Canada is far from alone in this enterprise. In the spirit of the United Nations, a coordinated, collective response between like-minded reform states has clear benefits compared to a chaotic scenario characterized by a growing number of different unilateral defections, reservations and questionable reinterpretations.
The concept of an inter se modification of the treaties amongst a group of like-minded states is one that we particularly encourage Canada to explore. I believe one of the speakers in tomorrow’s panels will be addressing this specifically.
The best outcome in terms of protecting the health and welfare of Canadians, and indeed of all human kind, are likely to come from such collective action, underpinned by honesty, proactive pursuit of open dialogue and an unwavering commitment to the values enshrined in the UN Charter. Thank you very much.
Grant Wilson, President, Canadian Children’s Rights Council: Good afternoon. Thank you for inviting me to attend here today. The Canadian Children’s Rights Council began in the early 1990s as a non-profit advocacy group advocating for the rights of Canadian children. Our website, CanadianCRC.com, is the most visited website in Canada pertaining to the rights of Canadian children and one of the most visited child rights web sites in the world. We have had over 50 million visitors since its inception. Every month, we get visitors from over 160 countries. The most Internet visitors in a single day was in May 2016, with over 397,000 visitors that day maxing out our capacity to serve up web wages.
Our website includes laws impacting Canadian children, information on making these laws, news and scholarly papers written about issues of child rights and sometimes to compare our Canadian laws to those we view as superior or of interest from other countries.
We have extensive information on the UN Convention on the Rights of the Child, child identity rights, paternity fraud, criminal laws of Canada pertaining to children, Canada’s Child Day Act, Canadian family law, family violence, corporal punishment of children and the related Supreme Court of Canada case, genital mutilation of both male and female children and child abandonment laws, to mention a few of the topics on our website of over 1,000 pages. We have captured many documents to build a history of children’s rights in Canada. We have over 2,000 additional web pages captured, but not yet on our website. I’m sure this will add a substantial number of pages.
As information and news becomes more available on the Internet and traditional media budgets lessened, it becomes even more important to consolidate content and child rights in Canada to assist those reporting the news. The Canadian Children’s Rights Council has been quoted in all the major media in Canada, in newspapers across Canada over the last 20 years, and has appeared on numerous TV shows and all the major TV networks.
About 20 years ago last month, I appeared before the Special Joint Committee on Child Custody and Access, a special committee of MPs and senators about family law issues. It toured this country, heard from over 500 witnesses of all stakeholders and produced its report, For the Sake of the Children. Our ideas were accepted by that committee and were recommended by them in our report. Most of the reforms were never implemented by the Liberal government in power. The judicial arm of the government has implemented some of those recommendations over the years.
For the purpose of making laws, we classify children as those less than the age of adulthood in Canada. We use such a distinction ourselves because the term “youth” is used at times for adults up to 25, or even 30 years of age, by some government programs. So when I refer to “children,” I’m talking about those below the age of adulthood.
Canada owes our children the nationwide opportunity and right to participate in the process of making a law turning illegal cannabis into a legal recreational drug.
Cross-Canada hearings in communities educate the public while getting much-needed community buy-in and understanding. All Canadians, especially Grade 6 and up children, need to know why our rates of cannabis use are what they are today. Medical stakeholders will have their say at such public meetings about these and other drugs, addictions to alcohol, gambling and tobacco.
The government needs to survey all Grade 6 and above students on drug, alcohol and cigarette use and usage of those around them, using third party surveys. National surveys do not help those taking action locally. All of this information, from police to overdoses at hospitals, should be nationally available and paid for by the revenues from the sale of cannabis.
We find it hypocritical for governments not to stop the sale of billions of dollars of illegal cigarettes, for example in Ontario, which comprises about 30 per cent of the market, and then take the position that legalizing the sale of cannabis will result in it being controlled by governments.
Our position on the medical use of cannabis is that it should be sold in medical-looking packaging, the same as any other pharmacy drug, and sold through all pharmacies which are already trained and comply with the law on controlled drugs. Provincial pharmacare and medicare systems will track the use and provide valuable medical use feedback to compare the benefits, if any, in comparison with new and other pharmaceutical drugs. Canadian doctors prescribing cannabis are already informed and follow strict procedures when prescribing medical use cannabis.
We object to the use of advertising, shirts, paraphernalia, et cetera, which promote brand awareness of cannabis. All retail packaging needs to contain health warnings and not be attractive. Packaging should show in large print on the front the measured amount of THC and CBD per dose.
Cannabis delivery systems such as sprays, pills, food additives such as oils and puffers, are more desirable than stinking, burning joints, which infringe on the rights of others and often at a great distance from a cannabis smoker and are a bad example for children.
Internationally, Canada should follow its agreements. If an international agreement is planned to be changed by Canada, appropriate notices should be given, changes explained and reasons given. In this case, it should be backed up by a very thorough cross-country analysis, as I was suggesting, and future plans with goals for law enforcement and funding.
The Government of Canada must use cannabis tax revenue to enforce legal sales and to fund new impairment testing methods and ongoing research into health effects and THC delivery systems for those wishing to use such products that don’t have the negative effects of burning and inhaling smoke.
The Canadian Children’s Rights Council has seen increased use by “youths” after legislation of cannabis in certain U.S. states. We need to measure what is going on across Canada, community by community. These same self-reporting studies by children and young adults may also be helpful in determining the effect of separating the channels of distribution for all such drugs.
Some believe that the current channels of distribution of cannabis give drug dealers increased opportunity to sell to customers such other drugs as ecstasy, crack, opioids or deliberately addict their customers to more harmful drugs.
We haven’t seen any specific plan of action concerning the analysis of the legislation on cannabis or the effect it will have now on the future with children.
The United Nations Convention on the Rights of the Child as well as sense dictates that because the Government of Canada is ultimately the guardian of all Canadian children, they should analyze, explain and monitor specific goals regarding laws which impact children. They often don’t and when they do, like with the Special Joint Committee on Child Custody and Access about family law and primarily about children, they don’t act on it.
The Chair: Thank you.
Senator Bovey: I would like to thank all of you for your presentations. I have a question for Mr. Larkin and one for Mr. Rolles.
Mr. Larkin, I understand that, as of today, 29 states have some form of legalized cannabis use, including nine states in Washington, D.C., which have legalized recreational use of cannabis. By our calculations, that’s roughly 190 million people with access to some form of cannabis. I understand there are more states contemplating legalization and that there are currently 15 bills in Congress dealing with access or respecting a State’s right to legalize cannabis or allowing for taxation of cannabis.
Indeed, the President of the United States recently stated that he would respect states’ rights when it comes to cannabis.
Does this indicate that the writing might be on the wall for the United States, our neighbour, and that these international treaties will affect the United States as well as Canada? By consequence, doesn’t this lead one to believe that there will have to be some restructuring of these treaties at some point?
Mr. Larkin: You’re absolutely right. The United States has moved down this path further and faster than Canada has. That doesn’t mean it’s the correct decision to make. Oftentimes, what you have in some of these circumstances is passage of legislation where people know it won’t have any particular effect. In this case it has had an effect, but not necessarily a good one.
Some of the laws allow cannabis to be smoked or used in edible format, some just allow cannabis products to be used. But the question is not whether the United States has made the right or wrong decision; it is, to some extent, whether it has made a wise decision. There may not be any particular right or wrong answer with respect to all the different cannabinoid uses that can be made of this plant. In fact, there’s legislation pending in Congress right now to do greater research on the question of whether cannabinoids found in the plant can be used.
I agree with you that the United States has already done a great deal. Whether the United States has passed the point of no return, however, is something I would not agree with. After all, as I said, by and large the United States has made clear that it’s the Commissioner of Food and Drugs and his staff that will make the decision as to what drugs should and should not be distributed in interstate commerce.
To my knowledge, none of the bills would take away from the Commissioner of Food and Drugs the responsibility to continue to make that use. The commissioner has not been involved because the product is entirely contraband. Once Congress then allows the states to do some of this, it may be that the commissioner at that point gets involved, and it may be the commissioner will have a very different decision than what the state legislatures have had.
Senator Bovey: Mr. Rolles, our key point of discussion really is Canada’s contravention or issues relating to the three international treaties. You made it very clear that you felt those treaties should be reformed simultaneously to Canada bringing in the legislation, and you talked about Canada’s principal leadership.
With that in mind, can I presume that you would agree that with the arguments that have been made that the problem is not Canada opting for a different policy approach, but rather it’s the outdated legal treaty framework that gives rise for this temporary and transitional period of principled non-compliance?
I wonder if you could talk about the simultaneous reform. Of course, we’re concerned. We don’t want to be in contravention of international treaties. On the other hand, how do we work these in parallel? Perhaps you can talk a little bit about the simultaneous reform.
Mr. Rolles: Canada having undertaken the analysis and made the decision that this reform would be in the interest of its citizens, it then does face this obstacle of the UN treaties which specifically don’t allow it. Now, treaty change, particularly with a difficult issue such as drug policy reform, can move at a glacial pace. This could take years; it could take decades. This treaty framework has been in place for 60 years. It may take some years to unpick some of the problems and modernize it to meet the needs of member states in the modern world.
It doesn’t seem to me to be realistic or reasonable to expect Canada, having made the decision that this reform is the right thing to do, to then not proceed with it until the treaties are reformed. I think it is perfectly reasonable to make a case that Canada can proceed with the reforms as long as they do so in ways that do not impact on other member states, and that’s obviously a serious issue, particularly around border issues and import and export issues, but particularly border issues.
If they can preserve the border issues predominantly with the U.S., which is becoming less of an issue as more states in the U.S. legalize themselves, I think it’s quite right and proper that they proceed with this in a reasonable manner at the same time as making a serious commitment to engage in the appropriate multilateral forums to try and resolve the tensions that the domestic reforms create.
It will be a tricky process. I don’t think anyone is under any illusions about that. It’s a highly polarized issue. Many people are vehemently opposed. I think a tipping point is coming where the number of member states who want to see this reform is reaching a threshold at which even the prohibitionist countries realize that a modernization process has to happen to avoid the international drug-control system either imploding or fading into irrelevance.
It’s a difficult situation, but from a pragmatic point of view, proceeding with the reforms at the same time as proceeding in open, honest dialogue in the multilateral forums is a reasonable position to take.
Senator Oh: My question is for Mr. Grant Wilson. I have asked a similar question about children’s group rights, but I’m looking for more of an evidence-based answer from you.
Canada is a signatory of the UN Convention on the Rights of the Child. Will Canada’s obligation to protect children from harmful substances under this convention be impacted by Bill C-45? For example, should cultivation, smoking and the use of cannabis or cannabis-related products be prohibited in places, including residences where children may reside or be around?
Mr. Wilson: It’s a matter of putting in place reasonable measures to protect children. It depends on the community; it depends on many factors. I would highly recommend that you actually talk to children about this in high schools, in Grade 6, and get their feedback, from a practical standpoint, on how to prevent that from happening.
Some adults have said to me, “Well, there’s only a certain period of time for harvesting of this product,” et cetera, and come up with all sorts of ideas on that. It depends on where you live, if you’re on a farm versus in the suburbs. There are all sorts of issues there. The best solution to that is to talk to children who might be the ones involved with that.
Again, we need to encourage children to be involved with this, ask them questions about this, and take a serious look at it. But you don’t want easy access, that’s for sure. You want to protect it and protect them from a culture of growing this.
Senator Ataullahjan: I did have a conversation with young children in Edmonton, ranging from the ages of 12 to 16. Somehow they were given the notion that there was no harm. I asked where they were learning that, and they said they were told that in school, that there are no side effects. When we had that discussion, they were quite surprised to hear that there could be potential harmful effects.
Have you heard of any other instances where in schools they’ve been told there are no harmful effects? Is that conversation taking place?
Mr. Wilson: Generally speaking, drug programs have gotten much better at explaining the difficulties and problems with these drugs, but you really need to have community conversations on this at the local level. We’d like to see centralized information from the government on all these drug programs for all the teaching that’s going on about this, the exchange of ideas. We want it right out in the open where everybody can see this and judge for themselves, where good ideas can be passed between communities.
We feel that having any kind of community meetings is going to promote a better understanding of what this is about, what the law is, any misconceptions about this, and practically solve some of the issues here about any kind of local bylaws regarding growing or anything else that can crop up in that community.
I would say it’s a very bad school system that’s not following a program that does explain some of the difficulties.
Senator Oh: The answer you gave me doesn’t answer what I’m asking. I asked about children’s safety, 5- or 6-year-old children, boys or girls. If you give them cannabis, they can’t tell whether it’s cannabis until they consume it. There’s no way they would know the chocolate contains cannabis.
Mr. Wilson: I thought you were referring to growing it in your backyard or whatever. If we’re talking about food products, we’re totally against food products being sold which could be easily eaten by a child by mistake or be in a residence where there are children. If somebody is going to create a food product, then perhaps they want to do it themselves and they want to do it under certain circumstances relating to medical reasons or whatever it may be, which is one of the reasons for putting it into a food product. But that’s a very difficult area, and I’m shocked that they have some products out there that are candy, basically, loaded up with drugs.
Senator Oh: How do we prevent this candy getting into the hands of young children? That’s something we have to do.
Mr. Wilson: I think through education, to a great degree, and I think that the community ownership is where it’s at. By the time you have some of this money being aimed at local ownership of the issues, including with the schools, parents, local police, local hospitals, and everybody involved with that, I think you can fight quite a number of drugs that are being used, including opioids and all sorts of things, and, on top of that, give the best medical information that we have, the medical opinions about the use of marijuana, and smoking in particular.
Senator Massicotte: Thank you to all three of you for being with us today. Our focus at this committee, for this research, is to talk about international treaties, whether the proposed legislation offends the international treaties, and how serious is that offence.
The first question I asked myself, just to play devil’s advocate, is that if you make the presumption that the government wants to legalize cannabis, and there’s presumably public support for it, we all acknowledge it’s a contravention of international treaties. But is the contravention so important, so serious, that Canada should simply back off from proceeding any further with legalization of cannabis until it gets its house in order regarding international treaties? That’s the first question I asked myself. Is it so serious — I’m not the expert — that one should say, “Let’s go backwards,” in spite of the fact I suspect that’s very serious?
Mr. Rolles and Mr. Larkin, could I get your comments on that?
Mr. Rolles: I hope I made clear in my opening statement that, no, I don’t think the contravention is so serious that Canada should not proceed. I think that Canada’s commitments to the object and purpose of the treaties, the health and welfare of humankind, the health and welfare of Canadian citizens, should be the priority, and that should take priority over technical adherence to particular articles within the treaties.
Just to say that the treaties do not serve only to prohibit cannabis and other drugs. They have a whole raft of other functions that Canada has no issue with at all. So this is a partial compliance issue with one element of the treaties. And it’s not just the health and welfare of mankind. It is the higher commitment to human rights, to public health, to child safety and to peace, security and development — to those UN charter commitments. Those are the priorities, not dogmatic adherence to one article of the treaties, which are clearly malfunctioning, outdated and in need of modernization.
My answer to that is no, the non-compliance is not so serious that we should not proceed, absolutely not. We should seek to demonstrate the efficacy of the policy at the same time as seeking to engage in multilateral discussions to resolve the tensions, and hopefully modernize the dated and malfunctioning treaty system.
Senator Massicotte: Mr. Larkin?
Mr. Larkin: Thank you. Temporary non-compliance is another way of saying wilful disobedience. Canada signed on to this treaty. Canada can always withdraw from the treaty. And there’s even some suggestion that Canada could withdraw and then re-enter with a reservation for recreational marijuana. But it is, in fact, going to be wilful disobedience.
In the United States we have collective bargaining agreements, and not everybody may like every provision in the collective bargaining agreement between a labour union and management. But neither the labour union nor management can thereafter decide which provisions it wants to accept and which it doesn’t. You are required to comply with the entire agreement; otherwise, you’re in violation of law.
Finally, if you really wanted to try to challenge this — and it is not an agreement that goes back a hundred-plus years — the last convention was 1988 — pass this law and then delay the effective date, whether it’s 10 years or whatever, or five years, and that will give Canada and other nations an opportunity to get together and present a united front to the UN that they should allow reservations from an agreement after the fact or that they should modify this agreement to allow for different types of cannabis to be used.
Note, though, that if you just go ahead and refuse to comply, it is not, I agree, as important as many other treaties perhaps Canada could enter into, but to some extent that’s in the eye of the beholder. I don’t know how the other nations who are parties to this agreement will look at it. And if they look at it as Canada has essentially decided to favour local politics over its word to foreign nations, then you will lose your standing in the international community.
Senator Massicotte: Mr. Wilson?
Mr. Wilson: I think I would prefer to see a national consensus among youth and an effort on doing that, and perhaps during that period of time we can consider our international position.
Senator Massicotte: At this point, I know we all would prefer that the government did it differently. Where we’re sitting today, they have proceeded. They’ve proposed legislation. So we’re stuck; either we approve or we don’t approve. Is the offence to the international treaties so important that we should just back off and let this legislation die?
Mr. Wilson: From a practical standpoint, it will happen anyway, and we’re going to be breaking that, from my interpretation of it. Because the numbers are that two thirds of Canadians, and roughly the same number of Americans, want to legalize cannabis use. So it seems like it’s going to happen. I don’t think these other countries are unaware of that. It’s more a matter of sort of who goes first perhaps.
Senator Massicotte: We’re looking for examples where other countries have had difficulties with this issue, maybe for religious or cultural reasons. As you know, some years ago, Canada imposed its will against its treaty obligations relative to people using the North for navigation in the upper Arctic. Many countries were offended by our doing so because we basically imposed our will there.
Is there any comparison to that? The good news or bad news is that most Canadians were not even aware we offended those international treaties. It did get some countries offended, but it seems to have gone over quite well and now it’s acceptable.
Is it comparable to that experience, what we may experience with the offence on a drug policy for international treaties in this case?
Mr. Rolles: I’m not familiar with that particular example, but from how you describe it, it does actually sound like that is quite instructive. I think we need to make a distinction between treaty violations that are argued on the basis of a particular treaty being dysfunctional and in need of modernization, and treaty violations — for example, human rights abuses committed by certain countries, extrajudicial killings or use of the death penalty for drug offences — things that are clear violations that violate all standard international norms.
So I think there is a very clear distinction there, and I think it is important that Canada makes the case for why it will be moving in temporary non-compliance on the basis of its commitment to health and human rights and community safety and, you know, the UN Charter values that Canada holds very dear, as indeed does the whole world community.
I think there is a difference there so if it is part of a wider call for modernization and reform in the interests of UN values, that’s different from what you might see as more criminal breaches of international law. They are very different and distinct and Canada has very clearly made the case that it is about modernization, maintenance and preservation of UN values.
Mr. Larkin: It seems to me you have to look at this issue at the margin. You can’t just say, “Well, we did it before and everyone has come to accept it, so we can do it again.” What you have to do is take into account the fact that other nations may now say, “Well, there they go again.” Each time they have a justification for doing it and each time they say it’s just one this time. Yet over time, you now have a trajectory that has developed and Canada has yet again decided to snub its nose at its international obligations.
As to the assumption that other nations are not upset about this, let me say you also have a phenomenon to consider that a former American professor and U.S. Senator, Daniel Patrick Moynihan, once described as defining deviancy down. In a particular neighbourhood or area, after a while, you come to accept the fact that there may be more crime and that the neighbourhood may be more slovenly.
It doesn’t mean you like it and it doesn’t mean you wish it had not happened but you come to accept it simply because you can’t do anything about it. That doesn’t mean you think it’s good. That doesn’t mean you want to see it further deteriorate. What it does mean is that after a while, it has now become the standard. So if you continue to move the standard downward, people come to expect that. But they also come to have a greater and greater view that what you have done is wrong.
Senator Massicotte: Thank you. I’m sure you can read the same thing. We have three minutes left. Somebody should press some button here.
Senator Andreychuk: Thank you.
Senator Massicotte: I’m getting all upset with it. I didn’t hear the answer but I’m worried about the signal.
Mr. Wilson, any comments on that same question?
Mr. Wilson: Well, I would like to see a productive exercise in the introduction of this done in a proper way and leading if we’re going to do this. That really needs to be what Canada is about, doing this properly, getting the job done, getting the feedback from the children who are going to have this in their lives for the rest of their lives and having to deal with this as well as all the other drug problems that exist in our country.
We don’t want to rush into it too quickly, and perhaps get a consensus from other countries as well on what their thinking is along these lines and see who else might want to exchange ideas at the same time that they are doing it and we’re doing it.
Senator Massicotte: Thank you.
The Chair: If we’re to have our in camera meeting, we have run out of time now.
Just one comment to all of you is that there may be a difference of opinion as to how we proceed to either enforce the treaties that we have signed or move from them. But what we need to know from the government is how they are going to handle it.
Am I correct, Mr. Rolles? I think yours was the most supportive, if I can say that, of the fact that it might be a technical breach.
Would it be helpful for other countries and for Canada to know how Canada will approach its obligations here? In other words, what is their plan? Should they be discussing with like-minded countries or should they be going to all countries at the treaty table because they do meet regularly?
Is there a quick answer you can give me that a plan would be helpful for Canadians and for the international community to have the government state how and when they will approach this issue?
Mr. Rolles: Yes, I think they do need to clarify that. I think it’s fair to say that they have made statements at the UN, at the Commission on Narcotic Drugs and at the UN General Assembly Special Session. I have been there for a number of these Canadian statements where they have announced what they are doing. They have told the international community that this is what is going to happen, they have put a date on it and they have said that they are making efforts to resolve the issues and tensions in terms of the treaty issues that are created.
What they haven’t done yet is to say how that will be resolved. I think probably that’s because they don’t know yet. I think they are still exploring the options and I think that’s a perfectly reasonable position to be in, as long as they make it clear. I think they can say, “We are moving into non-compliance.” I think the deputy minister made that clear in his statement. I don’t know whether it was to this committee or one of the other congressional or Senate committees. They said they are going to move into non-compliance and they will be making efforts to resolve that.
In some ways that may just be a holding pattern whilst they come up with a longer-term plan. But in itself, that doesn’t strike me as being entirely inadequate. If they are still exploring the options and if they are still in dialogue with other member states to try and look at collective action that they might take, then it seems like a reasonable position to say, “We are going into non-compliance. Here are the reasons why we are doing that from a domestic point of view. We are going to make every effort we can in the appropriate forums to resolve these issues.”
That seems to be where they are up to, but we await developments with bated breath.
The Chair: Thank you, Mr. Rolles, Mr. Larkin and Mr. Wilson. You have given us three very different perspectives. That is what the committee needs. We need to hear from varying points of view so we can have all sides of the issues presented to this committee. You have certainly done that this evening, so, I thank you for coming before the committee.
I am very pleased. I’m not sure what you did, Mr. Larkin and Mr. Rolles, but we had no problem with our video conference today. It has been perfect. I’ll forewarn you that you might be invited to come back because it has been a pleasure to work with you in a manner that has not led to any interruptions. Someone has commended our clerk and officials for having done a good job, and I want to echo that.
Mr. Wilson, thank you for coming and reminding us of our very important duty towards children in Canada.
(The committee continued in camera.)