THE STANDING SENATE COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE
OTTAWA, Thursday, March 29, 2018
The Standing Senate Committee on Foreign Affairs and International Trade met this day at 10:30 a.m. to give consideration to the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada's international obligations.
Senator A. Raynell Andreychuk (Chair) in the chair.
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.
Before I turn to our witnesses, I would ask the senators to introduce themselves.
Senator Bovey: Patricia Bovey from Manitoba.
Senator Massicotte: Paul J. Massicotte from Quebec.
Senator Ngo: Senator Ngo from Ontario.
Senator Oh: Senator Oh from Ontario.
Senator Greene: Stephen Greene from Nova Scotia.
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
Senator Housakos: Leo Housakos from Quebec.
The Chair: And I’m Raynell Andreychuk from Saskatchewan, chair of the committee.
I’m pleased today to welcome to the committee Dr. Dwight Newman, Professor and Canada Research Chair, College of Law, University of Saskatchewan; Mr. Bruno Gélinas-Faucher, PhD Candidate in International Law, Faculty of Law, University of Cambridge; and Ms. Kathy Vandergrift, Chair, Canadian Coalition for the Rights of Children.
We’re very pleased that you were able to accept our invitation. We have a very short time frame within which to study this bill, so your quick response is very much appreciated so that we can complete our task before the time limits run out on us.
We always ask for opening statements and then senators like to ask questions. Mr. Gélinas-Faucher will go first. Welcome to the committee.
Bruno Gélinas-Faucher, PhD Candidate in International Law, Faculty of Law, University of Cambridge, As an individual: Thank you, Madam Chair.
Honourable senators, it is an honour to be here today. You have already heard a lot of testimony about the three international drug control conventions. I will try not to repeat the information that has already been communicated. What I will do, however, is to highlight some of the things that I think have eluded the debate so far. From that perspective, I will begin by briefly responding to the arguments raised last week before your committee by Global Affairs Canada representatives.
When the government and the Global Affairs Canada representatives appeared before you, they first admitted that these conventions would be violated. Then, they tried to minimize this violation by raising three arguments.
Their first argument is that Canada still respects the overall objective of the physical and moral health of humanity. The second argument is to qualify the violation. We were told it was a technical violation. Reading between the lines, it is clear that they consider it a minor violation. The third argument is that there is flexibility in the international regime, and that the governments can choose how to achieve the general goal of the physical and moral health of humanity.
I want to emphasize today that there is no mention in the legal analysis presented by Global Affairs Canada and the government of the opinions expressed by the International Narcotics Control Board, or INCB. The INCB was created by the conventions. It is an independent board that is described as quasi-judicial, but its role is, above all, to ensure respect for the conventions and their implementation. As part of that role, the INCB has been able to comment on the government’s current approach and Bill C-45. There are several opinions, but I have identified one that reflects the committee’s opinion and is in direct contradiction to the arguments presented to the committee by Global Affairs Canada. I chose the INCB’s 2016 annual report as an example. I find it particularly important because it was published by the INCB after its visit to Canada since the INCB was concerned about the plan for legalization. They stated in the report, and I quote:
The Board notes that the legalization of the use of cannabis for non-medical purposes is inconsistent with the provisions of the 1961 and 1988 Conventions because the Conventions oblige States parties to limit the use of narcotic drugs exclusively to medical and scientific purposes.… The limitation of the use of drugs to medical and scientific purposes is a fundamental principle that lies at the heart of the international drug control framework, to which no exception is possible and which gives no room for flexibility. The Board urges the Government to pursue its stated objectives — namely the promotion of health, the protection of young people and the decriminalization of minor, non-violent offences — within the existing drug control system of the Conventions.
I highlighted this excerpt because I want to contrast what the Global Affairs Canada people said in their testimony, which is that it is a minor technical violation. With what the INCB — which is responsible for enforcing these conventions — has told us, beware; this is not minor at all. Legalizing cannabis will lead to the violation of a fundamental principle that is at the very heart of the conventions.
The other interesting aspect of this opinion is that the government’s argument that it has just respected the general principle of the health of humanity is being demonstrated once again. In fact, the INCB tells us that this goal can be achieved within the framework of the current conventions. We have seen a very important development in which we have moved from a prohibitionist regime to criminal offences. The INCB recognizes today that there is some flexibility, that we can pursue policies based on health and respect for human rights. This is a very important development on the committee’s part. This flexibility is the same as that raised by Global Affairs representatives last week.
However, the INCB made it clear to a special session of the UN General Assembly in 2016 that flexibility had its limits and that legalizing cannabis really contradicts fundamental principles, and that it could not be justified by relying on flexibility. Clearly, on three occasions, the INCB — which is responsible for monitoring the conventions — contradicted the speech and the arguments raised. It is not just the INCB that said it is a pretty significant violation; there are also internal Global Affairs documents that also support those arguments. These documents were obtained through a request under the Access to Information Act. In a note to the Minister of Foreign Affairs at the time, the minister was told, and I quote:
Legalization would have a significant impact on Canada’s binding obligation under the International Drug Control Convention.
There is a contradiction between what was said in the internal notes, namely “a significant impact”, and what you were told last week, namely “a technical violation”. I do not think this is an appropriate term in the circumstances.
On another note, I am taking advantage of access to the internal documents to address another topic related to a question from one of the committee members, Senator Ngo, to members of Global Affairs Canada regarding the violations that could have an impact on Canada’s campaign for a seat on the United Nations Security Council. The people from Global Affairs Canada said that the response was very ambiguous, that it was one of several considerations. Again, the internal documents and the note sent to the deputy minister in April 2016 clearly indicate that it was much redacted. So, many things have been said, but one of the sentences we can keep in mind is, and I quote:
Canada’s policy choices related to marijuana legalization may also be of interest in the context of Canada’s bid for the UN Security Council seat for the 2021-2022 term.
So, clearly, we can see that it is a concern that is not being neglected. There could be political consequences for Canada with respect to treaty violations.
I would like to close with two remarks. Professor Hoffman and Professor Beauchesne shared solutions that would allow Canada to reconcile the conventions with Bill C-45. I will make two comments on two of the possible remedies. One of the remedies is to withdraw from the conventions and to join them again with a reservation. I know this has raised some questions from committee members. What I want to bring to your attention is that there is indeed a precedent in this area, the 2013 case of Bolivia, which withdrew and then came back with a reservation, and 15 states formally opposed this approach, including Canada. It is important to note that Canada opposed this approach because it went against the spirit of the conventions and would compromise the legitimacy of the conventions. On paper, while it may be a legal option that may seem politically viable, it is difficult to do because Canada criticized this same approach four years ago.
I would like to raise one last point, and it is perhaps a more positive note. In the options that have been presented to you, declassification was briefly mentioned. This is not an amendment to the treaty. A committee of experts from the World Health Organization has been asked to remove cannabis and its derivatives from the list of products that are controlled in the treaties. I think this is the best option because the Senate Special Committee on illegal Drugs in 2002 published a huge report. Senator Nolin chaired the committee, and maybe some of you will remember it. Chapter 19 of the report deals with the same issue you are discussing today about Canada’s international obligations. What the Senate committee recommended at the time was that the classification of cannabis was entirely arbitrary in the treaties, and that it should be reclassified or declassified. If the committee in 2002 stated that this was a good way forward for Canada, I think it is also a good approach that the government could take today.
On that note, I would like to thank you very much.
Dwight Newman, Professor and Canada Research Chair, College of Law, University of Saskatchewan, as an individual: I am pleased to be here to assist the committee in whatever ways I can.
My name is Dwight Newman, and I’m a Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan. I’m not an expert on the international drug control conventions, but I think there’s a lot that’s possible to be said with some careful legal analysis.
I appreciate the close attention that this committee is paying to the important international law issues associated with Bill C-45. I actually find it surprising that a country like Canada, committed to respecting international law and itself deriving significant benefits from the multilateral system, would contemplate willfully breaching international law treaties in a manner larger than necessary or, indeed, at all. So I very much appreciate the attention that this committee is paying. It’s a very important instance of the Senate exercising its functions of sober second thought on this legislation.
I will be speaking about Canada’s international treaty commitments somewhat in general in terms of the violations there and some of the other options, and possibly some amendments to the legislation that might help to reduce some of the violation.
Before that I do that, though, I also want to reference the possibility of violations of Canada’s policy commitments on the United Nations Declaration of the Rights of Indigenous Peoples. I want to do that briefly; I have a little more in my written submission on it.
This is contingent on a lot of different things. It would be inaccurate to say that UNDRIP in general has the status of customary international law. It’s not a treaty. Parts of it may be customary international law and parts of it surely are, but Canada has made policy commitments with respect to UNDRIP, in the past year or two in particular, that have been put in very strong terms with respect to those commitments, and they may become statutory if Bill C-262 moves forward.
In the immediate term, even in terms of these policy commitments in relation to this document, Article 19 of the United Nations Declaration of the Rights of Indigenous Peoples says that there needs to be consultation and cooperation with Indigenous peoples in order to obtain their free, prior and informed consent with respect to legislative and administrative decisions that affect Indigenous peoples.
In terms of interpreting that article, any sensible interpretation would have to focus on legislative amendments that specially affect Indigenous peoples, because almost every legislative amendment would affect Indigenous peoples.The question here is, does this legislation especially affect Indigenous peoples?
I know the Aboriginal Peoples Committee is also looking at the legislation so they may have some comment on that. But from an international law perspective where, for example, there are dry communities, one could ask whether adopting this legislation has an effect upon them, or where there are Indigenous communities that wish to take up a business role in light of the legislation has there been consultation and cooperation to the necessary degree in respect of that. I would suggest that there hasn’t been that type of consultation if Article 19 is triggered, given the government’s decision on that.
I’ll leave it at that because there is a lot of hard law to talk about in terms of not soft law but hard international law. The adoption of Bill C-45, as has been noted repeatedly now, will lead to Canada being in breach of three international treaties on international drug control issues.
It’s important to say more than that and note that Canada will be in breach of dozens of specific treaty commitments involved in these treaties. It’s not just that it’s breaching the treaties in general, but there are a variety of similar commitments. I attempted to detail some of these included in my submission at appendix 2 of the submission.
It’s important to think about the specific commitments because it’s important to think about compliance with the treaties in general. That is, is it possible to comply better with the treaties even while breaching them as this legislation does? Specific amendments to the legislation could actually lessen the violations.
I have not enumerated all of these, but I’ll give one brief example. The combinations of proposed sections 87 and 171 of Bill C-45 arguably could be amended to achieve better conformity to the treaty in respect of mutual legal assistance with other states when there might be instances where they continue to comply with the treaties that Canada is choosing to violate.
When they continue to comply, these provisions significantly reduce the mutual legal assistance simply to fit with Canada’s statute. They could be amended in order to consider the statutory position of other states that are treaty compliant and thereby avoid some of the treaty violations that Canada will engage in.
I’ll speak briefly now just to the other options in respect of the treaty violations generally. The evidence that we’ve just heard is fascinating in terms of the explanation that was received in terms of the so-called technical breach and the so-called balanced approach to treaty interpretation, which I never thought had a particularly strong basis. To hear that the internal memos within the government consideration of this say something contradictory to the public position that’s been put forth is, quite frankly, shocking.
However, in general terms, it’s not up to individual states to choose to follow some provisions of a treaty and not others. Canada would certainly object if its treaty partners did that in the context of their trade commitments to Canada, their own human rights commitments or anything else.
I’ll briefly turn to these other issues. Canada has been warned on this treaty violation for a significant period of time. Published work by Dr. Steven Hoffman gave us warning in advance of the period that would apply to the timeline for a treaty withdrawal. So this isn’t a new issue. Canada is in this awkward position today because there wasn’t seriously enough contemplated by the government before.
I want to mention five options. I think they range between terrible and bad, but I’m going to say something on them briefly. Willfully violating the treaty without doing anything else would tend to undermine Canada’s reputation for compliance with its international treaty commitments and would tend to weaken the multilateral system. It’s important not to overstate the damage from one particular action, but if each treaty departure is trivialized, then we’re down a dangerous path and Canada could well reap what it sows in other contexts.
Second, large-scale renegotiation would be a long-term project and in many ways not feasible.
Three, thinking of simply Canadian interests, I see outright treaty withdrawal as undesirable in light of the fact that it would remove Canada from the group of states entitled to cooperation and mutual legal assistance under these treaties not just in respect of cannabis but in respect of all the drugs they cover. In the absence of clear indications from law enforcement officials of being able to operate well on other drugs issues without the treaties, giving up the benefit of the treaties would be undesirable.
Fourth, the fact the treaties have components on mutual legal assistance complicates the purported solution that some have put forth of an inter se renegotiation between just some countries on some parts of the treaties. An example of that idea came in a communiqué from a Dutch think tank that some of us got overnight. That idea of inter se modification is recognized under Article 41 of the Vienna Convention on the Law of Treaties, but it is not permitted where the modification would run counter to the object and purpose of the treaty or would undermine other parties under the treaty. In this case there would be problems on both issues. Because of the mutual legal assistance provisions, an inter se modification on a particular drug would undermine rights of other parties. I’ll come to the object and purpose as I conclude.
Withdrawal along with rejoining subject to a reservation, which was mooted in some submissions where a reservation that would exclude commitments only on cannabis would keep Canada part of the system. I want to raise the risk that that would be invalid and face objections by other states. I think this relates to some of the testimony we just heard as well.
While Canada and the United States do have reservations to the 1971 psychotropic substances convention — and they have that in respect of peyote use by certain Indigenous communities — that’s a minor reservation that pertains to certain smaller communities. A broad-based legalization of a widely used drug when the treaties seek uniform measures against that drug would arguably be inconsistent with the object and purpose of the treaties. We just heard other evidence that bears on that.
That said, although it would have no guaranteed success, attempting it might be more honourable and better in Canada’s interests than simply violating the treaties, but it arguably would require a delay in Bill C-45’s implementation. I think that might well be justifiable if Canada isn’t going to become an international treaty violator more than necessary.
I think a combination of amendments and the choice of a bad rather than a terrible path might become a set of options to consider.
I will stop there. I’m happy to discuss matters further in questions.
The Chair: Thank you, professor. Now we’ll turn to Kathy Vandergrift.
Kathy Vandergrift, Chair, Canadian Coalition for the Rights of Children: Honourable senators, the Canadian Coalition for the Rights of Children is a national umbrella group of organizations and individuals that work on children’s rights in Canada and globally.
The Convention on the Rights of the Child could be a useful tool to achieve the goal of reducing the harms associated with marijuana use by young people. The convention treats young people as persons with rights rather than objects of care. That makes a big difference in how we approach public policy that affects them.
The convention provides a comprehensive and an integrated framework for public policy. It looks at all aspects of child development, not just cognitive brain development.
The convention is valuable, particularly for the transition from childhood to adulthood, which is the stage of life that this legislation addresses. It has a strong focus on social support for that transition, more than other human rights agreements. That seems to be a missing piece in some of the current debate in Canada. Regulations and education are not adequate without it.
So what’s the problem in Canada? Canada ratified the convention more than 25 years ago, but it remains an aspiration. It’s a nice dream for children of the world. Implementation in Canada is very weak. We don’t implement the convention broadly.
Let’s look at some provisions of the convention.
More than 12 articles in the convention relate to Bill C-45. Time only allows me to speak to a few. I’ve listed all of them in the document I’m leaving with you.
First, Article 3: best interests of the child and children should be the primary consideration. The convention and superior courts in Canada recognize the best interest principle as a matter of fundamental law. It requires considering impacts for children separately from adults and giving them a high priority, which Bill C-45 says in the preamble. The question is how to determine the best interest of children.
Five years ago, the Committee on the Rights of the Child recommended that Canada incorporate the principle into Canadian law and provide guidelines on how it will be determined. That has not happened. The coalition recommends the use of child rights impact assessments as a tool because it carefully examines all rights, all impacts of proposed legislation. Early in the process of this legislation, we called for such an assessment. It has not been done.
At this point, we suggest to you that, whatever law is passed, there is a need for a youth implementation strategy and that strategy should be based on a full assessment, using the convention as a framework. The rest of my presentation will show why.
Second, respect for the evolving capacities of the child: that’s in several articles. The convention moves from protection for the very young to self-determination. It’s not the case that all children under 18 are childish and all persons over 18 are automatically adult in their behaviours. Development is a gradual process. The convention focuses on equipping and supporting young people in their decision-making capacities. That’s an important element for an effective strategy on marijuana use. It raises questions about arbitrary ages.
Third, Article 24: right to a healthy context. Every child has a right to “the highest obtainable standard of health.” The convention has a strong focus on the determinants of health, on health information to equip young people, and on preventive health care and guidance for parents. So the broad view of health in the convention is relevant for an effective youth strategy. A variety of tools can be used to realize the right to health.
Fourth, Articles 6 and 27: adequate support for maximum development of full potential. The convention is not about minimum standards for children, and development includes culture, identity, social and emotional development, spiritual development, play — a full range, well beyond just cognitive brain development. Parents have primary responsibility, but states have a duty to support parents.
I’ll highlight two aspects of particular relevance. First, shorter-term restrictions are legitimate to protect full development, but they need to be justified. Second, when we look at the evidence about young people at risk of addictions or convicted on drug charges, a high percentage did not have their Article 27 rights realized. So, if we are serious about preventing addictive use of marijuana, we need to do more about Article 27 rights.
Fifth, Article 2: freedom from discrimination. Non-discrimination is a strong link to the Charter of Rights. Discriminatory practices must be justified on the same basis as Charter rights, including age discrimination. This raises questions about some of the enforcement provisions in Bill C-45.
A 17-year-old, for example, with over 5 grams of marijuana is subject to criminal sanctions. A 19-year-old may have 30 grams before being criminalized. Young persons face greater criminal sanctions. This is discriminatory on its face. It would require careful justification.
Now moving to the practical side, when I project application of the proposed rules to a party where there are 17-year-olds and 19-year-olds sharing marijuana and the police walk in, I predict a high probability of legal challenges on the grounds of age discrimination.
Sixth, Article 33: protection from illicit drugs. This convention makes specific reference to drug use in Article 33:
States . . . shall take all appropriate measures . . . to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.
I would like to draw your attention to two points. First, states can use all appropriate measures. That allows a range of approaches. Second, the focus is on keeping young people out of illegal drug circles and trafficking. Statistics in Canada show that prohibition has not been effective in doing that. Globally, there is substantive research to show that children are more victims of the so-called war on drugs than beneficiaries. I don’t have time to go into that research today.
In that context, we look to the general comments for guidance. In the General Comment on the Rights of Adolescents, the Committee on the Rights of the Child provided additional guidance for states. It calls for three elements.
First, states should “put in place prevention, harm reduction and dependence treatment services, without discrimination, and with sufficient budgetary allocation . . .” Second, alternatives to punitive or repressive drug-control policies for adolescents are welcome. Third, adolescents should be provided with accurate and objective information based on scientific evidence aimed at preventing and minimizing harm from substance use.
The seventh point: A youth strategy based on this advice would be more comprehensive than current plans. Experience shows that access to support services is critical for young people at risk of harmful use, in addition to education. That needs more attention to achieve the stated goals of Bill C-45.
Youth in the criminal justice system, Articles 37, 39 and 40. Detention should be the last resort, and for the shortest time possible. The focus is on the three R’s: rehabilitation, recovery, reintegration. This is one place where the convention recommends that states use a minimum age, preferably age 18. However, in Canada, provinces have a variety of ages, some as low as 14.
Drug use is one of the major factors for involvement of youth in our criminal justice system. International research shows that criminalization or legalization is not the most critical factor when it comes to use by young people. However, involvement in the criminal justice system definitely has negative impacts for the health and development of young people, and a disproportionate negative impact for youth who are overrepresented, such as Indigenous and racialized young people.
Bill C-45 does not end the criminalization of young people, depending on what some provinces do. In that regard, it seems less than consistent with the convention. A rights-based strategy would pay more attention to the harm done to young people from involvement in the criminal justice system and put more resources into alternative public health strategies for young people at risk or involved in harmful drug use.
Finally, a comment on rights-based tools. A strategy that would be based on the convention would use some other tools to measure progress, such as targets for measurable outcomes, monitoring progress, reporting and engagement of young people, and including their perspectives. It would be a mix of law, education and support services for young people and support for other actors such as parents.
A convention-based youth strategy could make federalism work better for young people.
I’m happy to go into more details on these. I’m happy to also speak to other provisions of the convention that I could not describe, for time reasons.
The Chair: Thank you to all three of you. You have given us quite a bit of information and I have a long list of questioners. I will start with Senator Massicotte.
Senator Massicotte: Thank you to all three of you for being with this morning. Obviously this is an important subject, not only for us but for all Canadians. Let me start by making a comment to Mr. Gélinas-Faucher.
In your presentation, you made it clear that it is not a formality that is being proposed. I accept that, and I fully agree. It is a serious argument, and it is something we have to do consciously, because it affects our international relations. Suppose you were in the shoes of the Prime Minister of Canada and had the mandate to legislate on this aspect, as proposed. There is a social issue of great importance, according to many people, and we must reach the desired point. But we are going against international treaties. What would you propose? Should the bill be dropped because it contravenes the treaties? At that point, we lose some of our sovereignty. Or would you agree to move forward, while managing it as best as possible? Mr. Newman made it clear that there was no easy or nice solution. Perhaps it is necessary to choose the lesser evil. What would you do in that situation? The mandate is to get there. What is the best solution?
Mr. Gélinas-Faucher: I will answer two ways. The first way allows me to make a comment that may seem obvious. I was talking to you about the memos I received. There is one thing that needs to be mentioned, and it was in the Throne Speech and in the election campaign. As soon as the government came to power, a memo was sent to the Department of Foreign Affairs to warn it that there would be a violation of our international obligations, by proposing options. That is when provisions should have been made, not now, while the bill before the Senate.
Senator Massicotte: You are saying that we should back off and drop it. Perfection does not exist.
Mr. Gélinas-Faucher: I agree with you. I think the best solution would be for the government to move forward with the bill, since that is its mandate. At the same time, I think the best option is to make a request to the United Nations Secretary General who, in turn, will send it to the World Health Organization, to study the status of cannabis in the conventions in order to potentially declassify it, or even reclassify it. I think the least bad option would be to go ahead, even if the treaties are contravened, but at least have an approach in parallel that aims to ensure that this convention lasts the shortest time possible. In my opinion, the best option is to request declassification. It was the option favoured by the Senate committee.
Senator Massicotte: Does it require two-thirds of the votes for approval?
Mr. Gélinas-Faucher: No, and it is important to mention it. Declassification is different from negotiating a treaty. A committee of experts at the World Health Organization can classify new substances. It can also remove drugs from the table. The committee will do a study and base its decision on scientific evidence and on the potential dangerousness of the products. It then makes a recommendation to the Commission on Narcotic Drugs, which must approve by a simple majority whether or not the recommendation is accepted.
Senator Massicotte: You also referred to the example of Bolivia. It withdrew from the treaties and returned right away with a reservation, but it was based on a religious customs argument. Experts tell us that this option to withdraw and rejoin the treaty immediately, but with a reservation, applies only in similar cases. It would not apply in our case, where it is more of a social choice. What is your opinion about that?
Mr. Gélinas-Faucher: My colleague was talking about it when he said that it could be against the object and purpose of the treaty. I think it is debatable. I would not be willing to say that it would be totally illegal under the conventions. I think it was Professor Beauchesne who pointed out that Bolivia was advancing the religious argument. I think that the conventions provided that the states, when they joined a convention, could make a reservation to exclude cannabis for a period of 25 years. If a reservation is issued, even if that period has passed, does that go against the object and purpose of the treaty, insofar as the treaty itself provides that there may be exemptions for cannabis? Again, maybe it was for social or religious reasons, and so on. But, I think it would be open to debate.
Senator Massicotte: Mr. Newman, if I can ask you a question: Yesterday, we had witnesses. I don’t know if you saw the testimony. Everybody seems to agree that, if the cause is so significant — and obviously this government believes it is — we have to pursue the legislation. Yes, it’s unfortunate that we didn’t plan it ahead. Yes, we don’t have the agreement of other countries, but we have to do the best we can with the arguments.
But one argument they suggested yesterday that we should use is our Charter. In other words, using the Charter to say, “We have an obligation to satisfy the Charter obligations, and part of this obligation is pursuing this legislation we’re doing.”
Do you buy that? It’s certainly a good PR exercise to say we’re certainly offending the treaty, which is an important issue. Let’s not minimize it, but the best solution is maybe to use the Charter or other arguments to at least put us, image-wise, in the right, that the cause is socially responsible and respectful of our international obligations. What are your thoughts on that?
Mr. Newman: I’m not sure I'm well placed to comment on the best public relations strategy, but, in terms of the legal aspect of that, I would simply say that, first of all, I’m not sure that the Charter obligates us to legalize cannabis generally. If it did, there could be a case to that effect. In fact, there has been a case on the issue and it didn’t go that way. But, apart from that, invoking the Charter as a reason for violating international law doesn’t have any international law relevance.
There are certain specific parts of the convention that are subject to the constitutional commitments within states. So certain of the rules around evidence and criminal proceedings under the 1988 convention can be modified, subject to the constitutional rules within particular states, for example, but constitutional provisions don’t provide a general defence against treaty violations.
Senator Massicotte: Mr. Gélinas-Faucher, a few years ago, we had a similar problem with the northern Arctic passage, from the perspective of our treaties. Still, we were able to make the international community aware of our position regarding the passage of boats in the Arctic. Ultimately, many of our international colleagues raised objections. They were against Canada’s position. Finally, we reached a consensus that it was acceptable. Why not take the same approach with marijuana?
Mr. Gélinas-Faucher: The consensus was formed following the adoption of the United Nations Convention on the Law of the Sea. I think there may be a difference. For the INCB, this is the very heart of the conventions. It is not like an ancillary provision that could be changed, it is the heart itself. According to section 15, control is restricted except for medical and scientific purposes. It is the cornerstone. If we say that this can change, it means that treaties can be renegotiated. It is possible, but it is more difficult to see in the context of drugs than in the context of the sea. Several states still apply the death penalty, which is not necessarily positive, but it shows that they are not necessarily ready to move forward. So, I think the contexts are different from this perspective.
Senator Oh: Thank you, witnesses. 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 use of cannabis or cannabis-related products be prohibited in places, including residences where children may reside or be around?
Ms. Vandergrift: Thank you for that question. Yes. That question is one of the reasons why we wanted to see a child-rights impact assessment to look at all aspects. Certainly, Article 24 speaks to the right to a healthy environment. That includes freedom from smoke. We addressed that in terms of the anti-smoking legislation. So I think we do need to look carefully at children’s right to grow up in healthy spaces, and what the implications are when it comes to the use of cannabis.That is one area that needs further attention in the implementation of any strategy.
But I layer over that the following: We know, in reality — and that’s the importance of listening to young people — that the current legislation has not necessarily kept children away from drug use either. When you talk with young people, some of them will talk about their parents’ drug use affecting them. We need to deal with those realities, whether under the current law or under a new law. That’s why we would like to see a clearer youth implementation strategy.
In relation to the previous interventions as well, it depends on which international law you give priority to.
Senator Oh: Will more young people move from being occasional users to more frequent users under Bill C-45, if it kicks in?
Ms. Vandergrift: As I stated, the legalization or criminalization is not directly correlated with frequency of use — not in Canada and not internationally. It’s not the primary factor that determines whether young people use marijuana.
Currently, it’s prohibited, but we have one of the highest rates of use in the world among young people at 22 per cent in the last year. There’s not a direct correlation. Young people are not necessarily making decisions based on whether it’s criminal, as a first step. Other factors play in. That’s why it’s important to do a holistic look at the question, rather than just assume that changing the law will change young people’s reality.
Senator Oh: But to open the door for them, to encourage them, are we going in the right direction?
Ms. Vandergrift: When you talk to young people today, they say already they get a lot of mixed messages on this issue. That’s why, when the Canadian Centre on Substance Abuse and Addictions looked into this, they put emphasis on giving young people good information.
We had a forum at the University of Ottawa on Tuesday and we talked about some of the less-than-good information young people get. It’s very important they get accurate and good information to help them make decisions. That’s extremely important.
They are getting mixed messages. That’s what they say.
Senator Oh: Is there any comment from the other witnesses?
Mr. Gélinas-Faucher: I would defer. It’s not my area of expertise.
Mr. Newman: It’s the same for me.
Senator Bovey: Thank you. I found these presentations very interesting, and I appreciate the comments about the holistic view of this and the importance of education and messaging. That goes for many things in contemporary society.
On December 11 last year, four international authors wrote an article entitled “Yes, legalizing marijuana breaks treaties. We can deal with that.” I want to quote a couple of lines from it, if I may, and I’d like your reaction:
Canada is not alone in reforming its cannabis policy, nor is it the first. In addition to Uruguay and the eight U.S. states, many local authorities in other countries, notably in Europe, are pushing national governments to follow suit. In the Netherlands this has resulted in the October 2017 decision of the new coalition government to allow for experiments with regulated supply of cannabis to coffee shops. . . .
Meanwhile, the World Health Organization has initiated a review of the classification of cannabis under the drug conventions. Canada’s cannabis regulation is part of a bigger trend and there is no reason to rush to unilaterally withdraw from the drug conventions. Acting unilaterally may not even be in Canada’s best interests; it could be wiser to act in concert with like-minded states.
The conclusion states:
The bottom line is that Canada ultimately will need to choose a path forward with regard to cannabis regulation and the drug treaties. But there is no need for hasty decisions and plenty of time for Canada to evaluate its options — and act when the time is ripe.
I wonder if you could give us your thoughts on that perspective. As I said, it’s an article written by four international writers dealing with this issue.
The Chair: Just for our record, perhaps you could file that article and we’ll disseminate it for the committee.
Senator Bovey: Absolutely.
Mr. Gélinas-Faucher: I will say, first, that I agree with the premise. I disagree with Professor Hoffman, who came and suggested that we withdraw.
As I mentioned earlier, I think we should stay in the convention, but my suggestion was that, as soon as possible, we should make a request to have descheduling. They mentioned the review, but I would add a technical — the committee has announced they would do a pre-review, so the pre-review is ongoing. It’s due in June 2018. That initiative has been taken by the committee following a request by various groups. States have the power to make an official request under the convention. That’s what I was referring to. It would add weight to this review mechanism.
I would say I agree with the premise that we shouldn’t be withdrawing and leaving it at that. For me, we should stay. There are important elements within these regimes, but at the same time, to be in compliance, we should move for that descheduling mechanism.
With regard to other countries that are also in similar situations, I will refer back to my comment about flexibility. There’s been an important recognition by the International Narcotics Control Board that flexibility is allowed. There’s been a very important shift in attitude by the board accepting alternative health-based measures. I mentioned Portugal, for example.
Also, it’s important to recognize that the Netherlands has an official legal justification. They say it’s still legal, and they can rely on one of the fundamental principles of their legal system, because they say there’s still a law prohibiting cannabis possession, but they chose not to exercise and prosecute; it wouldn’t be worth it. That proportionality in prosecution is one of our fundamental principles of justice. They technically have legal reasoning under the convention.
I would say there are other examples, too, like the States. We could go on. The sub-national entity, under international law, is not a valid argument, but let’s say at the policy level, it does grant the U.S. a more legitimate position.
So I would say that, no, Canada is not the only one. But if we combine flexibility with other legal alternatives, then many states are in a better position than Canada, except Uruguay. That’s the other outlier, I would say.
Senator Bovey: Before the other panellists respond, I also want to remind us all that, last week, we heard that the United States is moving toward legalizing cannabis as well. We talk about other nations and we need to factor that in as well. I wonder if there are other views from the panellists.
Mr. Newman: The basic sentiment that Canada shouldn’t act unilaterally in violation of international law but should operate in a multilateral manner is an appropriate one in regard to Canada’s international law commitments. If the international consensus shifts over time, that opens options for Canada.
My colleague’s idea around this being considered within the different schedules of the different conventions is a very appropriate one that would follow the conventions rather than set out to violate them.
But these things take time. So the question is: Is Canada in such a rush that it will go and violate its international commitments and act unilaterally, or will it take the time that would be involved in a more multilateral path forward? From an international law perspective, the second is clearly to be preferred.
Ms. Vandergrift: I would argue you’re in the position of balancing which international law you’re going to give priority to. This is a harder law maybe, but if you give the human rights treaties priority, the human rights bodies have looked at the impacts of what has happened and are recommending alternative approaches.
I’m not the expert in all areas of human rights, but the UN Committee on the Rights of the Child looked at the issue very seriously when they wrote their General Comment on the Rights of Adolescents and found that the current regime is not working in the best interests of children.
So what are you going to put first? Are you going to give your obligations to pursue the best interests of young people under the Convention on the Rights of the Child priority?
So there is an international dialogue about the most effective way to deal with drug use. I’m here to argue that your human rights obligations are high and you need to take those equally seriously. Sometimes, hard law gets priority, but human rights are important and so our human rights commitments would perhaps point you to look at some alternatives and engage in that.
Mr. Gélinas-Faucher: I want to briefly point out the annual report of the international board which just came out this March for the year 2017. I want to point out this report to address this issue of the dichotomy between drug control and human rights. In reality, with the shift of attitude I’ve been alluding to at the international board, their latest reports say there is a way of reconciling human rights protection with international drug control. The treaties do not impose strict prohibition and criminal sanctions on everybody who has possession. There are ways of reconciling and the latest report addresses this synergy between human rights and drug control.
I don’t think we have necessarily put them in the right position. The board recognizes that there are now approaches that are human rights compliant that also fit within the drugs conventions.
Senator Saint-Germain: Thank you to the three of you for sharing with us your expertise and bringing added value to our work.
My question is for Ms. Vandergrift. The bill provides that adults in possession of more than 30 grams of cannabis will be subject to a criminal offence, but for those under the age of 18, the criminal offence will apply to as little as 5 grams of cannabis.
If I understand correctly, you are of the opinion that this distinction could contravene the principles of the Convention on the Rights of the Child. What do you think of the administrative monetary penalty system, the tickets put in place by the provinces? Is it a better policy than criminalizing youth for possession of more than 5 grams of cannabis?
Ms. Vandergrift: As I mentioned, discrimination based seemingly on age alone -- and a close age, like 17 or 19 -- on its face is age discrimination, and that would be both inconsistent with the convention and inconsistent with the Charter as it has been interpreted with the convention.
Using a regime that has fines or, we would argue, public health measures and even greater diversion of young people from the criminal justice system to deal with their drug use is consistent with the convention in that it has a more graduated approach. It takes into account the evolving capacities of young people and it takes into account the very negative impact of criminalization.
When I look at some of the regulations of the provinces, I think they’re trying to fine-tune, if you will, what is coming in the bill, but the criminal law is a superior piece of legislation. While that’s before you, they’re trying to fine-tune it.
We still do have young people in prison for drug violations, and as I said, ages vary by province. There is a concern that the new law would not increase that for certain. We would argue for decreasing it, because we know about the negative impacts and we know about the effectiveness of other approaches that don’t put young people in jail for drug use.
If you look at the best interests, we know what is in the best interests of young people who are at risk or are slipping into harmful use.
Senator Saint-Germain: Having reviewed the bill, do you have any recommendations or proposals for amendments that would both ensure better protection of the rights of children or youth and an implementation that is effective and that meets the responsibilities of the provinces? In short, have you thought of any issues or areas for amendment?
Ms. Vandergrift: One amendment would be to end that age discrimination. There are a number of ways of doing that and I suspect that might be in front of your judicial committee, so I spoke to the international piece.
We’re saying at this point that a youth implementation strategy should be based in the convention. Whatever law is passed, this committee, I think, could recommend that there needs to be an implementation strategy that does look at all aspects and is based in the convention.
It’s in line with what we know from the research. What the law says isn’t the only thing that impacts young people, and education alone is not enough; appropriate services are also needed. It has to be a well thought-out youth implementation strategy. That could be a recommendation from this committee to go forward. Then you could also build in monitoring and fine-tune the provisions as it goes forward, because we are in an emerging area here.
Senator Saint-Germain: This question is for Bruno Gélinas-Faucher. It is related to the impact of Canada’s compliance with its international obligations in general.
You have responded well to the claims made by the Global Affairs Canada officials, and it is clear that your arguments are legal in nature. However, the evidence heard, particularly that of Professor Beauchesne, shows that the political context is less unfavourable today than it was 10 years ago. In particular, we know that the United States is preparing for the possible legalization of cannabis across the country. In your opinion, what would be the consequences for Canada if the Narcotics Control Board filed a report?
Mr. Gélinas-Faucher: Thank you very much for that question, which will allow me to address a key aspect that has not yet been raised in the presentations.
The International Narcotics Control Board is mandated to oversee the enforcement and implementation. I would add that there are sanctions in the conventions that the board can impose on states that do not meet their obligations. Article 14 of the 1961 Convention provides a list of means of increasing severity that the board may impose on states that fail to fulfil their obligations.
The first thing the board can do is start a dialogue with a state in violation of its obligations. A second practice that has developed and that the board can use if it identifies a violation is requesting to visit the country. That is exactly what happened with Canada when the bill was announced; the board came for a visit in the summer of 2016. After the visit, the board made confidential recommendations and I was somewhat disappointed because I would have liked to know what those recommendations were.
Madam Chair asked the Global Affairs Canada officials what their commitments were. They answered that they were at the stage of engaging in dialogue, and a list of recommendations was provided following their visit.
The convention also provides that, if no action is taken, the board may then bring the matter to the attention of the UN Economic and Social Council or the Commission on Narcotic Drugs. Without any decision-making power or power to impose sanctions as such, it is simply brought to the attention of those two entities that a state is in violation and has not addressed the violation after engaging in dialogue.
The third level in legal terms is that, if nothing happens, the board can recommend an embargo to all the other member states of the conventions, so that, if one state violates the obligations, the other states are required to no longer export drugs to or import drugs from that state. That country is embargoed. It’s a legal fact. These measures have not been taken in the case of Uruguay, which is in violation. That’s what’s on paper. It is important to find out whether those official mechanisms exist. It is not a matter of recommending an embargo to the states. The Security Council cannot impose one; it just has the power to make recommendations.
Senator Saint-Germain: If I understand correctly, it is a power, not a duty. It’s at everyone’s discretion.
Mr. Gélinas-Faucher: That’s right.
The Chair: Before I go to second round, we’ve centred on the three conventions, the Convention on the Rights of the Child, and the Aboriginal issue. Are there any other conventions you looked at that would be implicated or have some effect in their functioning by virtue of Bill C-45? We know the Convention on the Rights of the Child and Bill C-45 will have an impact on children.
We know about the Aboriginal -- I think Professor Newman pointed out two parts -- in that they weren’t consulted and that they may wish to be part of the business venture on the one side, but on the other side is their specific needs, et cetera.
Are there any other international conventions or have you just zeroed in on the two conventions? That is to the two professors.
Ms. Vandergrift: I would have to do a bit more homework to point you in a more specific direction, but committees under the economic and social rights covenant and the civil and political rights covenant have looked at the impacts and studied the issue. The Committee on the Rights of the Child, before they wrote the general comment, took a good look at what we know is happening and what is in the best interests of children. Other committees have also done that. I don’t have those documents in front of me.
Mr. Gélinas-Faucher: I can’t think of anything else, unfortunately.
Mr. Newman: There may be others, but I focused on these.
The Chair: You focused on these two.
The board recommendations, you say, are private and privy, but the government would have received them. You’re aware of that?
Mr. Gélinas-Faucher: In the annual report, they outlined their practice, saying that when we visit a country, following what seems like a clear violation, we will meet and engage people there. We know this has happened. We will communicate a set of recommendations, which are confidential, so they’re not published, but the government would certainly have them if the regular practice has been followed. This is certainly the practice outlined by the board in its own annual report.
The Chair: Does it restrict the government from discussing them publicly? With some issues, they say it’s confidential to the board and to the countries, and so they’re internal until both of them decide to make it public. Do you know if that’s the procedure here, or would the government be free to say, “Yes, we’ve received these issues and we’re dealing with them?”
Mr. Gélinas-Faucher: My sense is the second option. From reading the practice of the board, the confidentiality is to the benefit of the country to give them an opportunity to modify their practice that has been outlined by the board. If the country wants to make these recommendations public, I don’t think the board would have an issue with that.
I’m not 100 per cent sure on that, but I would be happy to inquire further for the committee.
The Chair: We heard testimony here about states in the United States moving to legalization or changes in their marijuana laws. I have not heard about the federal system and, of course, this would be the national government in the United States that is responsible for a lot of the border issues. I have not heard of any movement or change in that case. Are you aware of any?
Mr. Newman: I don’t believe there has been a movement as yet. I’m not sure if Senator Bovey was suggesting one was coming in her comments.
My understanding is there is an ongoing conflict between the federal government and those states that have moved towards legalization at the state level, and there are different variations about how that may play out over time. Of course, federal legislation can pre-empt state legislation and there are things the federal government in the U.S. can do, but they may not choose to do them at any given time.
The Chair: Ms. Vendergrift, you have been concentrating on the Convention of the Rights of the Child, but of the three of you, have any of you looked at, as another impact or possible impact or unintended consequences, that there is an export provision, import provision in Bill C-45?
Does that impact the drug conventions in any way if Canada moved to export? Are the definitions of medicinal and scientific delineated within the conventions in Canada and therefore Bill C-45 would be restricted to those definitions in the movement of marijuana outside of Canada or bringing marijuana inside? Supply and demand is what I’m talking about.
Mr. Gélinas-Faucher: I know that was a question that was asked previously. Personally, I haven’t looked at this enough to formulate an opinion on that.
Mr. Newman: I wouldn’t have a detailed opinion, but Article 3 of the 1988 convention in subparagraph 1.a)i) certainly does bear on export issues and would say that countries in any exports must be restricted to what is permitted under the conventions. There would need to be a very careful analysis of whether Canada’s definitions in respect of the medical and scientific context are in full compliance with the conventions.
I won’t purport to have done that, but I hope that there would be evidence put forth on that or otherwise there’s another possible treaty breach.
The Chair: I’ll leave it with the two of you. If you are going to look at the convention again, then you may wish to give us some comments, if you wish.
Senator Massicotte: Mr. Newman, from your presentation, it’s very clear your strong wish would have been that the government tries to avoid contravening the treaties place. Obviously, I would agree with that; it would have been nice to avoid. But I would say personally I’m not surprised with the way democracy works in Canada, with elections every four years, that sometimes you can’t plan years ahead for this type of offence, if you wish, against the international treaties.
In other words, I would make the argument that it looks like there’s a significant mandate for this government to proceed with that, and there’s a strong argument, including the youth, to proceed in this manner. Many blue ribbon committees in many countries have said you have to decriminalize possession because it’s not in the interest of your society.
Let’s say you’re proceeding with that and you say, “It looks like I got the mandate, and it looks like it is a good decision.” Yes, I’m offending some international treaty rights, but would you accept that, in that scenario, I guess there’s a negative and that the Canadian population should be aware of that negative? We are contravening our international obligations.
Would you agree that with that context, the government has the responsibility to proceed with the decriminalizing marijuana bill? Do you buy that argument?
Mr. Newman: Certainly there are challenges in the interface between a government policy and international law in this instance. Government policies that have a democratic mandate gain authority because of that.
At the same time, it certainly would have been open, even within this mandate, within this government’s term, to take some steps a year ago when there were warnings issued about the issue of the treaty violations and publicly issued warnings by Dr. Hoffman and others. I know Mr. Gélinas-Faucher also wrote an op-ed on this issue a while ago.
I would say governments should take those steps to avoid a treaty violation if they can. Then it might be possible, even now in this awkward position that we’re in, to minimize the treaty violation through appropriate, careful amendments to the statute. I don’t think it’s unreasonable to comply with international law to the greatest extent possible rather than to a lesser extent.
Senator Massicotte: I think we agree with that. But you also agree that, in light of that mandate and momentum, you’re not saying these contraventions of international treaties are so significant that the government should back off and not proceed with the proposed legislation. Am I correct in saying that?
Mr. Newman: There would be different views on that. I wouldn’t take a position either way on that, quite frankly. People can have different views on that.
It would be possible to choose a course of action to proceed in some way that seeks to comply with international law as best as possible through the various types of options that have been set out, while respecting the government’s decision to proceed with the policy.
Senator Massicotte: Help me out a little bit; I’m having difficulty. Let’s say the Prime Minister says, “This is where I want to go” — and that’s what he did in the election campaign — to go and seek the approval of the international community out without telling the Canadian public, “Here is the bill I’m proposing.”
In other words, I’m having difficulty. Where does he get this authority and credibility to go to see his international friends to try to make progress on this issue while not depositing a bill in front of the Canadian public and saying, “This is where we need to go”? To me, that shows seriousness, and I don’t see the alternative there.
Mr. Newman: There would be a seriousness from that issue having been discussed prior to the election. The Canadian public was aware that the government would take steps on this issue. I don’t think it would be a surprise to the Canadian public if the government had started with steps going to the international bodies prior to depositing the bill in Parliament. That might have been a possible option.
It’s impossible to reverse time at this point, so the second option becomes to lessen the violations of international treaties.
The Chair: I will say we are calling the minister. That’s a political question of how they proceeded and not a legal question.
Senator Massicotte: Mr. Gélinas-Faucher, despite the mandate given to the government by the electorate, do you think the international convention is so important that the government should not go ahead with its bill before obtaining a more favorable position on those conventions?
Mr. Gélinas-Faucher: In my opinion, if the mandate were so strong, my suggestion would be to go ahead and minimize the consequences as much as possible. One concept that you might find interesting and that I have not heard in previous evidence is the “non-compliance principle,” when a state admits to being in violation, but still remains active on the world stage trying to reform or bring together a group of people, like the four researchers, who share its opinion. In my opinion, this principle would be the best option. The principle falls under international relations more so than under international law. It is difficult for a lawyer to determine whether it is good, even if it is a violation of the principles. Of course this option is better than doing or saying nothing.
If the government decides to move forward, I would like it to make some proposals. What we heard from the Department of Global Affairs last week is: “we intend to take no action”. I would have liked to hear that it admits to being in violation and that it will try to propose amendments in the near future. It has to downgrade cannabis instead of conducting those actions to show that it is acting in good faith because of the political mandate it has received, for example. That’s what I would do.
Ms. Vandergrift: I would like to add to that. I would like to add a little history here.
In the 1990s, there was some dialogue in terms of Canada doing harm reduction approaches for young people. There was some engagement and Canada backed off. You might be able to find that.
The Chair: Just following up on that, if I’m understanding your answer, Mr. Gélinas-Faucher, Canada should be upfront to determine that if it’s going to violate a treaty, why it’s doing it and what the consequences are, so the public is aware of it, if you’re transparent and accountable, rather than having a violation and not addressing it.
This principled process, I’m well aware of. If you do it, you understand that you’re going to change your position on how you approach treaty-making internationally, where we’ve been part of a consensus to build international norms. If you’re now selectively saying it’s my principle that withdraws it, you do it cautiously, but you should give the reasons why you’re doing it, should you choose to do it.
Mr. Gélinas-Faucher: I think you said being upfront and saying why you’re doing it, yes, but it’s also proposing concrete actions, such as concrete amendments. People and many scholars say that it’s impossible to have an amendment. Canada could still try to propose an amendment, the actions for a request for rescheduling and so on. It’s not just about being upfront about the goals but also proactively taking measures to seek to amend the regime, I would say.
The Chair: So it’s minimizing the effect, is what you’re saying.
Mr. Gélinas-Faucher: Right.
The Chair: Thank you very much. You’ve covered a lot of ground. This committee is tasked to look at the international obligations and you’ve certainly gone a long way in assisting us in looking at it. Particularly since so much of the focus needs to be about young people, we thank the witnesses’ comments made with respect to the Convention on the Rights of the Child. You’ve furthered our understanding, and hopefully we’ll have a meaningful report that will feed into the main committee, Social Affairs, which will have to put together the full report.
Thank you for being here with us on such short notice. It has been very helpful for the committee.
(The committee adjourned.)