THE STANDING SENATE COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE
EVIDENCE
OTTAWA, Thursday, April 19, 2018
The Standing Senate Committee on Foreign Affairs and International Trade met this day at 10:30 a.m. to examine the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada’s international obligations.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, the Standing Senate Committee on Foreign Affairs and International Trade is meeting today to continue with respect to the order we received from the Senate, the 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.
I’m pleased that we have before us Mr. John Walsh, Director for drug policy and the Andes, Washington Office on Latin America; and Martin Jelsma, Director, Drugs & Democracy Programme, Transnational Institute in Amsterdam, Netherlands.
Welcome to the committee, to both of our guests. I understand, Mr. Walsh, you will make the first presentation. We’ll turn to Mr. Jelsma next. Then we will go to questions by senators.
Welcome to the committee, and thank you for accepting our invitation and travelling to Canada.
John Walsh, Director for drug policy and the Andes, Washington Office on Latin America, as an individual: Thank you, Madam Chair, and honourable senators. It’s a privilege and an honour to appear before the committee today. I hope my participation is useful as you pull together your report before the end of the month.
I’m going to speak briefly now and hope that my full statement could be entered for your record in evidence.
Just to be clear at the outset about WOLA’s posture with regard to legal regulated cannabis, we consider legal regulation of cannabis to be a sensible and promising alternative to prohibition, and we have engaged extensively in recent years with government, multilateral agencies and civil society partners exploring how to move forward with cannabis regulation in ways that support human rights, public health and social justice.
Just last month, WOLA and our colleagues at the Brookings Institution in Washington published a report entitled Uruguay’s cannabis law: Pioneering a new paradigm, taking stock of the Uruguayan laws, advances and challenges since it was enacted. This is the report. We’d like to make that available as well.
Overall, my message to the committee today is one of reassurance. I believe that, first, Canada has sound reasons for moving forward now with this cannabis law reform for the health, security and well-being of Canadians, even though doing so will inevitably entail non-compliance with certain drug treaty obligations.
The drug treaty non-compliance that Canada’s shift will entail has remedies in international law, and Canada’s international reputation as a good global citizen need not suffer along the way. To the contrary, my colleague Martin will discuss the options available to Canada, in particular the procedure of inter se treaty modification.
Also, Canada can avoid the kinds of banking access problems now facing Uruguay and thereby contribute to the regulatory aims of transparency, accountability and public safety.
Finally, time is on Canada’s side. Canada is at the vanguard of cannabis regulation, but it is not alone. In addition to Uruguay and developments within the United States, other countries are contemplating similar reforms for similar reasons. As Canada moves forward with cannabis regulation, it will find itself increasingly in good company.
To substantiate these main messages of reassurance, I will elaborate here briefly on just three points.
First, Uruguay enjoys continued good standing in the international community. More than four years after having enacted its cannabis regulation law, Uruguay is not an international outcast, has not suffered sanctions or otherwise been punished for moving ahead with its reform.
Uruguay maintains that its policy is fully in line with the original objectives the UN drug control treaties emphasize but have subsequently failed to achieve — protecting the health and welfare of humankind.
Uruguay has sidestepped the non-compliance question, arguing that its new law adheres to the country’s foundational obligations under international law. In the event of a conflict between human rights obligations and drug control requirements, Uruguay argues that it is bound to give priority to its human rights obligations.
Historically, countries such as the United States have used their considerable power to encourage full implementation of the drug treaties and to discourage innovations that break from the orthodoxy of prohibition and criminalization. However, with Uruguay’s cannabis law entering its fifth year, there has not been a concerted U.S. effort to punish Uruguay either bilaterally or in the wider international arena.
In this respect, Uruguay has enjoyed felicitous timing, with its law’s passage having come in the midst of a major shift toward cannabis regulation within the United States itself.
Uruguay’s human rights rationale for adopting a regulatory approach to cannabis provides a powerful case for moving ahead, even though regulation entails breaching certain drug treaty obligations. However, the human rights arguments for regulation do not automatically resolve the legal conflict within the current treaties or somehow erase the issue of non-compliance.
Uruguay was understandably reluctant to take the step of openly acknowledging treaty non-compliance entirely on its own, potentially isolated and without obvious allies. Rather, Uruguay judged that it would be better to reckon with that challenge in the international arena once other countries found themselves confronting the same problem, as Canada is today and as other countries will likely be in the not-too-distant future.
So while human-rights-based arguments and appeals to the fundamental health and welfare goals of the drug treaties do not resolve the issue of non-compliance, such arguments do provide a strong justification for a country to enter into a temporary period of drug-treaty non-compliance with the intention of formally altering its relationship to the international obligations that it has decided it can no longer meet. As Martin will describe, such a period of transitionary, respectful non-compliance could set the stage for two or more countries to avail themselves of the inter se option for treaty modification.
I will speak briefly on my two other points.
Canada can avoid the banking problems that have hampered Uruguay. Where Uruguay was highly vulnerable given its relatively small economy and significant reliance on U.S -based banks, Canada has attributes that should help avoid those obstacles. First, Canada already has experience with the medical cannabis sector, something Uruguay is only now developing. Second, Canada’s overall population and economy in cannabis markets are orders of magnitude larger than Uruguay’s, and the incentives for the country’s banks to participate in the legal cannabis sector are commensurately larger.
To be sure, Canada may also experience bumps along the road in terms of financial services. But there are indications already that at least some of Canada’s large institutions intend to engage, and they are presumably conducting the due diligence necessary to do so, in particular as it relates to their relationships with U.S. banks.
Finally, I will speak about the United States. The U.S. itself is shifting toward regulating cannabis. It may not be obvious, given the hostile views on cannabis held by our current Attorney General Jeff Sessions, but the U.S. is headed in the direction of cannabis legalization — or more specifically federal law allowing for and setting guidelines around state-level legal regulation. For instance, an agreement was reported last week between President Trump and Senator Gardner of Colorado to develop legislation to protect states that legalize medical or non-medical cannabis from federal intervention.
The debate at the federal level still has a far way to go before any law is enacted. Even if President Trump should change his mind and hand the reins of cannabis policy back to Attorney General Sessions, the states that have already legalized should not be expected to reverse course, and more states are likely to join them in the months and years to come. Already, one in five Americans lives in a state that has voted to legalize, more ballot initiatives are on the way and public opinion is increasingly in favour of legalization, which has appeal across the political and ideological spectrum.
To conclude, the Canada-U.S. relationship is enormously important for both countries. On cannabis regulation, the Canadian government is certainly ahead of the U.S. federal government. But, without putting a timeline on it, the United States is heading in a similar direction, and in the future, Canada should anticipate that the United States is more likely to be a partner in addressing shared concerns on cannabis policy rather than an antagonist.
Thank you.
The Chair: Could you clarify two things? Your organization works throughout South America, Central America and North America; is that right?
Mr. Walsh: Yes, we work most especially in Central and South America, but we do work in the Americas, particularly as human rights issues and drug policy are global and multilateral. We engage, for instance, in the OAS and in the UN, where all governments are at the table.
The Chair: I’d like to confirm something: I thought that cannabis is dispensed through pharmacies in Uruguay?
Mr. Walsh: Correct.
The Chair: Are these government pharmacies or privately owned?
Mr. Walsh: They are privately owned pharmacies. Pharmacies do not have to participate. In fact, the vast majority do not. They can opt in.
For now, the pharmacies that are participating are doing so without access to financial services, given that the banks have told them, “You either sell cannabis without an account, or you don’t sell cannabis.” Most have chosen not to continue selling so that they can keep their banking.
The Chair: Thank you for that. Now I’ll turn to Mr. Jelsma.
Martin Jelsma, Director, Drugs & Democracy Programme, Transnational Institute, as an individual: Thank you, Madam Chair and honourable senators. Thanks so much for inviting me to appear before this committee today.
The international dimensions of Bill C-45 are of the utmost importance, not only for Canada itself but for many countries around the world that are moving in the direction of legally regulating the cannabis market. The position Canada will take vis-à-vis the UN drug control conventions could well be a crucial moment in the long and troubled history of international drug control.
Let me also make clear, from the start, that I do support the policy change proposed by Bill C-45, and that the Transnational Institute, or TNI, has been actively involved in similar drug-law reform initiatives around cannabis in other countries, providing expert advice and facilitating meetings to discuss the dilemmas countries are facing.
The UN drug control system was built with the aim to protect the health and welfare of humankind. The current crisis around opioid overdose deaths in Canada and the U.S. is a stark reminder of the importance of safeguarding its key principles and for improving the functioning of that system.
In that sense, I agree with the statements made last month before this committee by Mr. Gwozdecky of Global Affairs that Canada’s approach is compliant with the overarching goals of these conventions but also with his acknowledgment that it will result in Canada being in contravention of certain obligations related to cannabis. There’s simply no way around that. Denying that reality would be dishonest and disrespectful of international law.
For TNI, and unfortunately for many countries including Canada, respect for international law is crucial for a basic degree of global order and governance. And pacta sunt servanda, so Canada runs into a legal problem, just as Uruguay and the U.S. already have — a problem that requires due attention and needs to be resolved at some point in the future.
From that perspective, we explored with a group of international treaty lawyers, UN officials, government representatives and civil society experts the best options for dealing with those treaty tensions. The outcomes are laid down in a recent report entitled Balancing Treaty Stability and Change that we presented in March at the UN Commission on Narcotic Drugs in Vienna.
I would like to request that the entire report also be made available to the committee. I’ve brought some printed copies for those who want it.
I’ve been following your committee’s deliberations this far. I don’t want to repeat things from previous sessions, so allow me to highlight just a few key points from our report that haven’t received much attention thus far in this committee.
First, the inclusion of cannabis but also of coca leaf in the strictest control schedules has been a historical mistake that has weakened and delegitimatized the whole system. The moment is long overdue to repair those mistakes, refocus priorities and to make the system more evidence-based and fit for purpose.
An important step in that direction is the prereview process of cannabis currently undertaken by the World Health Organization. The WHO Expert Committee on Drug Dependence is mandated by the treaties to recommend on the scheduling of substances, but never in its history has it reviewed the current classification of cannabis, which was basically copy-pasted from the pre-war treaties into the Single Convention.
In June, the expert committee will meet to discuss the outcomes of the prereviews, will surely proceed to undertake a critical review and then provide recommendations for rescheduling.
Second, an increasing number of countries are moving toward legal regulation of the cannabis market. The trend is most visible in the Americas, at the state level in the United States, Canada, Uruguay and several Caribbean countries, like Jamaica, and St. Vincent and the Grenadines.
But trends are getting closer to a breakthrough in some European countries, like the Netherlands, Switzerland, Spain, Germany, as well as in New Zealand and Australia. The trends are also followed with interest in a few African and Asian countries, like Morocco, South Africa, Thailand, Myanmar and India. TNI is actively involved in those discussions.
Reaching a new global consensus to revise or amend the UN drug control convention does not appear to be a viable political option in the foreseeable future.
As the 2016 UN Special Session on Drugs, the UNGASS, and the latest CND session in Vienna have clearly shown, the global consensus on drug policy is fractured beyond repair.
Third, the nature of the drug control regime limits the formal avenues for consensus-based treaty evolution and modernization and forces states, like Canada, that want to move forward with reforms to adopt temporarily a stance of respectful non-compliance, or to take extraordinary measures, such as the choice made by Bolivia to withdraw and re-adhere with a new reservation, is also a process where TNI has been intimately involved.
Fourth, the option of inter se modification, based on article 41 of the Vienna Convention on the Law of Treaties, was specifically designed to find a balance between the stability of treaty regimes and the necessity of change in the absence of consensus, and appears to provide a useful safety valve for the state of paralysis of the global drug control regime today.
Fifth, an inter se agreement on cannabis regulation would allow a group of countries to modify certain treaty provisions amongst themselves alone, while maintaining a clear commitment to the original treaty aim to promote the health and welfare of human kind, and to the original treaty obligations vis-à-vis countries that are not party to the inter se agreement.
Sixth, an inter se modification agreement would provide opportunities to experiment and learn from different models of legal regulation, open the possibility of international trade between states with regulated cannabis markets and also enable, for example, small cannabis farmers in traditional southern producing countries to supply the opening regulated licit spaces in the global market.
When the inter se option came up briefly in earlier sessions of this committee, the opinion was expressed that the mechanism was only intended for countries that wanted to agree among themselves on stricter rules than the treaties require, not to reduce treaty obligations.
As we explain in detail in our report, there is no doubt that inter se modification can also be applied by a group of countries to derogate from certain treaty provisions.
The UN International Law Commission discussed the matter in great detail and concluded that, in that case, the same rules apply for an inter se agreement as for a reservation; namely, that it should not affect the rights of other parties and that, and I quote, “It does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.”
I’d be happy to go into more legal details in answer to questions, but to finish, let me mention briefly two important points around the question of whether an inter se agreement to derogate from cannabis-specific treaty provisions would be permissible under those article 41 conditions.
First, it depends on the nature of the treaty. The prohibition of torture under international law, for example, is an absolute principle from which derogation by means of reservation or inter se modification, obviously, would not be permissible.
Similarly, an inter se agreement derogating from provisions of a nuclear disarmament treaty would be unlawful since it necessarily affects the rights of other parties. That’s an example where only stricter rules through inter se modification would be lawful. For example, the establishment of nuclear-free zones among some of the countries.
But there is more flexibility for treaties where the impact of a specific change between two or more parties inter se can be confined to those parties and has no immediate effect on the rights of others, or on the object and purpose of the treaty as a whole.
The morally charged 1961 Single Convention perhaps attempted to elevate the policy of drug prohibition to an absolute principle, but that argument is not sustainable, since there are many psychoactive substances, including alcohol, to which the principle is not applied.
That brings me to my second point about the permissibility of an inter se cannabis agreement. A majority of countries, at least for the short-term foreseeable future, will maintain a strict prohibition regime for cannabis, so to what extent are their rights immediately compromised if a group of countries decides otherwise?
Of course, the regulating countries would promise in their inter se agreement to fully cooperate to prevent leakage to countries where cannabis prohibition remains in place.
In practice, there are quite a few examples that demonstrate the possibility of peaceful co-existence of fundamentally different control regimes for the same substance.
The Bolivian derogation from certain treaty obligations regarding the coca leaf does not appear to have affected the rights of other parties in any serious way.
Other psychoactive plants like khat, kratom and ephedra are not controlled under the UN conventions at all, and are subjected to widely varying degrees of national controls and prohibitions.
Also in the case of cannabis, by now there are many years of experience with the legal medical cannabis market allowed under the treaties but in practice still strictly prohibited in most parts of the world.
The rapid boom of the medical cannabis market has taken place apparently without a major impact on those countries that maintained its prohibition. So why would that be different now with the emergence of a legal, non-medical market in various countries, as long as it is strictly regulated as Bill C-45 plans to do?
Plainly, the international drug control system is currently ineffective in preventing the international illegal traffic of cannabis, in spite of the near universal prohibition. A strictly controlled legal, regulated market is likely to prove more effective in preventing the illicit export of cannabis. Though it may seem counterintuitive to some, a legally regulated market may well benefit other non-parties to the agreement instead of harming them.
Of course, there will be opposition, and the legality of the mechanism will be questioned by some states, as also happened with the Bolivian coca reservation. At the time, 18 countries registered objections, including Canada, something I hope this government will correct by withdrawing Canada’s formal objection against Bolivia. Not only to clear the path for a future similar exemption of cannabis, but also out of respect for Indigenous rights.
In conclusion, from our consultations with international treaty lawyers, inter se modification appears as a legitimate safety valve, and perhaps, under current circumstances, even the most elegant way out for a group of countries to collectively derogate from certain cannabis treaty provisions.
Therefore, I hope your committee carefully considers the legitimacy of this option for Canada to resolve the approaching conflict with its international obligations and that your report recommends to the government to explore this possibility together with the growing number of like-minded countries struggling with the same dilemma.
Thank you for your attention.
Senator Ataullahjan: Thank you for your presentation.
With the enactment of this legislation, even though we will be in violation of the UN Drug Control Conventions, do you think there will be any measures that can be taken against us?
Yesterday, one of witnesses suggested that maybe what we should do is pass the bill but let the law come into effect at a later date while we iron out some of the issues or problems. Do you agree with that statement?
Mr. Jelsma: Thank you for the question.
In regard to the possibility of sanctions, in the UN control system, there is the International Narcotics Control Board that is mandated to monitor compliance with the treaties. That does include sanction mechanisms in extreme cases, but those have never been applied.
That would basically also conflict with the other objectives of the treaty system, namely to provide sufficient availability of the controlled substances for medical purposes, because the sanction mechanism in theory could limit the possibility of export/import licences for controlled substances to a country that is in gross violation.
I can assure you that that is not going to happen. It also did not happen in the case of Uruguay. And also on the basis of various discussions with members of the INCB, the board is also starting to reconsider its own role in this process. They are also aware that this is a trend that is not going to stop and that is going to move forward. And to protect the treaty system, it requires a way to facilitate this trend without the treaty system overall breaking apart over it.
So they are also considering the possibility, instead of what they have done thus far in simply condemning countries that are in breach of certain obligations, of taking up a role to facilitate and discuss how such treaty tensions can be resolved.
It is in that sense, I think, relevant that next month, for the first time in INCB history, they have also convened an open session with representatives of civil society experts, specifically to discuss issues around cannabis regulation.
I think that is a very positive sign.
Mr. Walsh: With respect to the sanction question, I would add that historically the question of pressure and sanction has come from powerful states, such as the United States, that have prevented, through threat or the likelihood of threat, countries from diverging from what the treaties require.
Other countries in the past, for example, the Netherlands, that have tiptoed to the edge of treaty boundaries with respect to cannabis, have pulled back for fear of what the United States in particular would say. I think it’s really crucial in that sense to understand that the United States is no longer in that position of the 800-pound gorilla threatening countries that are moving astray on cannabis on the conventions.
That is precisely because from the perspective of the INCB, the states in the United States have already put the U.S. federal government clearly out of compliance with the drug treaties with respect to allowing regulated cannabis.
The United States is no longer in the position — if it wanted to be — to pressure other countries not to do what the United States is already doing in its own way.
In response to the question of whether Canada might want to enact the law and stage implementation at a later date, from the treaty perspective, I don’t see there would be a need to do that.
Senator Bovey: Thank you both very much. This is very interesting and though I haven’t finished reading the recent policy report, I found some policy recommendations interesting, so I thank you.
Yesterday we heard from Mr. Rolles from the U.K. as he was talking about Canada’s proposed approach resulting in Canada being in contravention of certain obligations related to the UN drug conventions. He said:
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.
The report, Balancing Treaty Stability and Change, of which you are both authors, of you say in the foreword, referring to many countries coming into this, that:
In anticipation of such a scenario, in which a growing number of jurisdictions opt for cannabis regulation despite the obvious breach of the drug treaties that such a reform entails, governments and the UN system should give serious consideration to options for managing these policy shifts in ways that can help to reinforce the UN pillars of peace and security, human rights, development, and the rule of law, and in ways that can help to modernize the drug treaty regime itself.
Putting those together, I wonder if you could elaborate, perhaps. Yesterday we were told Canada should be the principal leader with what we’re doing. What should we be doing in terms of these legal policy shifts?
Mr. Jelsma: Thank you. That is indeed one of the key issues at stake. I definitely agree with what was said yesterday by Steve Rolles that going in the direction of untidy legal reinterpretations of the treaty is definitely not the right way to go and indeed also denies the reality and would, in my view, show disrespect for international law.
There have been some suggestions in that direction, indeed, from the U.S. and a few others basically out of the dilemma that the international community is facing. It is so difficult to amend these treaties that most countries prefer to avoid that discussion altogether. That’s why they try to find some creative reinterpretations to avoid the reality and the necessity of coming up with real solutions for those tensions out of respect for international law.
In terms of Canadian leadership and how to generally move the UN drug control system toward more human rights protection, health and peace, et cetera, there have been very promising developments going on around the Special Session of the UN General Assembly where we also both participated. There have already been marked shifts in the discourse and you can see that in the outcome document of the 2016 UNGASS, which focuses on issues like drug control having to be in full compliance with human rights obligations much more strongly than all the political declarations before it.
It also talks about realigning drug control with sustainable development goals. Of course, that is the broader framework for the whole international community at the moment. Also to look at how the current drug-control system can contribute to the realization of the SDGs but also where there are potential elements of conflict, where current drug control policies could hamper reaching the SDGs by 2030.
Canada could do more, apart, of course, from what it is starting to do already, taking an active role in these international UN discussions. There is a new global review currently being prepared in the UN Commission on Narcotic Drugs because 2019 is the deadline of the previous political declaration, which was agreed to in 2009. There was a 10-year action plan, and there will be an evaluation, a review of the 10-year period, and tensions are already increasing around how to organize that review moment next year.
So taking an active role in those discussions is crucial at the moment because it is a moment where things, also at the UN level, are starting to move already, shift in another direction. Of course, the other significant role that Canada could play is to explore specifically on the cannabis issue with other countries that are struggling with the same question, to start informal consultations about how other countries are looking at that issue and to start working out some possible scenarios together with a group of other like-minded states.
Mr. Walsh: Very briefly, Canada has already, I think, ensured that the idea that this so-called elephant in the room of regulated cannabis cannot be ignored any longer, including in multilateral fora, and I think the role of Canada, as the first G7 country to go this route with a democratic mandate, gives Canada some big advantages in discussing it from a human rights, health, security and democracy point of view that will be very well received and will allow many other countries to want to participate in that conversation.
Senator Massicotte: Thank you, both of you, for being with us.
I would just like to recite a little bit of what I hear from you just to maybe make it very clear for the record. First of all, both of you favour decriminalization of marijuana. Am I correct in saying that? Or legalization. Both of you acknowledge that the proposed legislation would be in contradiction of our existing treaty obligations. Agreed?
Mr. Jelsma: Yes.
Senator Massicotte: But, in spite of that, you say, for all of the good reasons you espouse, that Canada should proceed with the legislation relative to our Canadian stance. Do you agree with that?
Having said that, you also say that there is very low probability of direct sanctions from other countries, if I hear that correctly. You sort of say, though, contrary to a little bit of what we heard from our Canadian officials, which basically says we are going to do nothing, that we should be much more proactive in explaining, if you wish, the moral arguments or the global health arguments of why we are proceeding this way.
Mr. Jelsma, in particular, you put emphasis on the inter se approach. What you’re basically saying is, “Canada, don’t just sit on your hands and do this stuff, at least look good morally, if you wish, to make sure that people understand that you are being responsible, irrespective of contradicting a treaty obligation.” Is that also a good summary of what I heard?
Mr. Walsh: I think it is. I would only, on the last point, suggest that, in our view Canada is already speaking clearly in terms of rationale for its policy change. From the very beginning, at the CND in Vienna and at the UNGASS, the why of the policy change was very clear.
I also think that what I heard the government say is that there are no plans for action now with regard to the treaties. Our view is that there is no rush for Canada. The important thing is to make sure that it is gotten right, and the important thing is to make sure that other countries know that Canada is exploring its options and that it is not enough just to acknowledge non-compliance and consider the issue done.
Canada, I think, in good faith, should send signals that it is exploring what it intends to do, but it has no obligation, I don’t think, to tell countries what that is until they are good and ready.
Senator Massicotte: I like that summary.
Also from the options available to it, you sort of discount four or five options. You discount the in and out or out or in. One country has done that, where you retract and then come back in with a reservation. You don’t recommend that. You also do not recommend, I understand, the other choice, which is basically to negotiate the list of what drugs are included in that. But I think you both acknowledge that’s a good idea, but that’s many years in the works, I suspect, given that the preponderance of countries are much more conservative. Therefore, we’re probably not going to get consensus on that. I gather that’s why you like the inter se approach, which allows a fragmented but morally substantial approach. Is that a good summary also?
Mr. Jelsma: Yes, the inter se approach is not only a moral direction to go in, it is a legal procedure that would, in fact, resolve the legal conflict with the treaty. The advantage is also that it is done in a more coordinated manner, and that’s the advantage over the unilateral withdrawal and re-adherence with a reservation, which is an option that is definitely available to Canada.
Senator Massicotte: In the inter se approach, how many countries do we need to be credible, to get results there? Is it a majority or just a significant number?
Mr. Jelsma: The procedure is that two or more countries can agree among themselves to modify certain treaty provisions. The procedure of objections that other countries may have against it is a bit less clear than in the case of the reservations.
In the case of reservations, it is clear that, at least for the 1961 Single Convention, other countries have a year’s time to object to a reservation, like Canada has done with Bolivia, and if there are more than one third of treaty parties, which, for the Single Convention comes down to 62 or so, who would object, then the reservation is basically declared unlawful.
In the case of Bolivia, it only came to 18, far from that threshold. So, in that sense, it does create a legal precedent, which makes it also a viable option, in principle, for Canada to do in the case of cannabis.
The advantage of inter se is that, on the one side, it is even more difficult for other countries to object or to halt or to declare the inter se agreement unlawful. And the advantage, I think, for the global control system is that it would prevent a more chaotic scenario of all countries trying to solve it unilaterally.
Senator Massicotte: Am I correct, though — and I think we hear you loud and clear, and your position paper also makes it clear — that Canadians should expect that, in spite of our best efforts, that we will probably be in legal contravention of treaties for many years, probably at least a decade. Is that accurate?
Mr. Jelsma: No, at the moment an inter se agreement would be reached with a group of countries and from that moment on, Canada is no longer in breach with the treaties. So it depends.
Senator Massicotte: It’s an easy slam dunk in your mind?
Mr. Jelsma: It has the effect of a collective reservation.
Senator Massicotte: If it’s so easy, why doesn’t the Canadian government say this is our plan?
Mr. Jelsma: The procedure is not used often, so in that sense it is contested, but it is specifically designed for moments of paralysis around international treaties.
We do think it is probably the best option to start working on now. It requires careful consultation with other parties because it is like negotiating a small treaty to specify which provisions are no longer applicable to this group of countries, but also to specify to the other parties and promise that they will maintain their obligations to the other parties that are not party to the inter se agreement.
Senator Massicotte: I think your views are very clear.
Senator Oh: Thank you for your presentations.
Gentlemen, you are experts in international drug policy. The USA Patriot Act does not allow banks to serve accounts linked to substances, including recreational cannabis, including non-American banks that have interbanking accounts in the U.S. That’s why banks in Uruguay closed down accounts of businesses selling cannabis illegally after the legalization of recreational cannabis in Uruguay.
Could Canadian banks do the same, close down accounts of Canadian businesses linked to manufacturing, importation, sales, or distribution of recreational cannabis illegally if Bill C-45 is passed?
Mr. Walsh: In theory, it’s a risk management question and the appetite for risk of different Canadian institutions will probably be different.
The size of the Canadian cannabis sector as compared to the Uruguayan sector and the relative autonomy and independence of Canadian financial services from the power of their U.S.-based banking counterparts are considerable factors. I would imagine, based on what Canadians have seen in Uruguay and how the Canadian financial services industry has been able to work with and adjust to medical cannabis in a way that Uruguay never had a chance to, that Canadian institutions are figuring out the ways, once non-medical cannabis is legal online, they will be able to work with the non-medical sector in ways that don’t run afoul of the Patriot Act or U.S. banking laws in general.
That’s my operating assumption. That’s not to say there won’t be bumps along the road as Canada moves forward with legalization, but I suspect that a number of larger Canadian institutions are going to find their way to service Canada’s legal non-medical cannabis sector.
Senator Oh: Thank you.
Senator Saint-Germain: I will ask my question in French, but in the meantime, I want to thank you for your very interesting presentation.
[Translation]
I would like to get back to the heart of the decision that we need to make as a committee, and what we need to examine. Bill C-45 is mainly about respecting three United Nations conventions on tackling drugs and seeking to ensure the well-being and health of humanity.
Mr. Walsh, you said, and other witnesses have said it before, that including cannabis in the tables of the convention on drugs is a historic mistake. Furthermore, you both proposed two options: firstly, recognizing a period of non-compliance, citing reasons of safety and public health; secondly, the inter se modification option, which is mostly related to a longer term solution.
I look at this in a context where a growing number of countries, including the United States, wish to do things differently when it comes to the fight against illegal trafficking and illegal consumption of substances, including cannabis. My question is related to the international treaty. Do we not have an opportunity here to update international law, under the auspices of the United Nations Organization and with the support of a growing number of countries that want to fight the illicit trafficking of drugs differently, for reasons mainly related to health and public safety? This way, the treaties would allow states to contribute more to the modern issues of health and public safety.
[English]
Mr. Jelsma: That’s an important question. The difficulty is that those types of modernization of the regime itself require more or less unanimous consent.
So while there is a growing number of countries that indeed are changing their perceptions about drug policy in general, not only about cannabis, there is a clear trend on cannabis of a growing group of countries that want to do that. But what also became clear at the UNGASS and at the CND is that on the other side of the spectrum, there is also a well-organized group of countries that is very clear that it does not want to have any changes at all, especially in the treaty structure. And that includes countries like Russia, China, Japan, also some European countries. But the core of the bloc is basically those countries plus a number of Middle Eastern countries, Iran, Egypt that are active in these debates as well. And they are very clear at the moment that they will block any “flexibilization” of the regime itself.
That’s also a question that I didn’t answer previously. There is a possibility to reschedule cannabis in the treaties and that is a procedure already in motion with the review process of the WHO, and it is promising.
The advantage is also that that procedure does not require unanimous consent. The WHO recommends to the Commission on Narcotic Drugs certain rescheduling proposals, and then the CND votes on those issues.
In the case of the 1961 convention, it is a simple majority to approve WHO recommendations. In the case of the 1971 convention, it’s a two-thirds majority.
My expectations about the WHO review are that they will definitely recommend to take cannabis out of Schedule IV, which is the strictest of the 1961 convention. It is very likely they would also recommend to take it out of Schedule I and maybe downgrade it to Schedule II.
It is unlikely that they dare to propose to take it out of the schedules altogether. Even the de-scheduling, take it out of Schedule IV and downgrading it, it is not sure whether it would reach a majority vote in the CND. It would be a very strong signal from the WHO side that the WHO also thinks it is time to take another approach to cannabis, but whether there would be a majority in the CND to approve it is not at all clear.
Senator Cools: I would like to thank the witnesses for appearing before us. I find their testimony insightful.
Chairman, first, I would like to thank you for your perseverance and your stick-to-it-iveness in terms of us studying this bill thoroughly and adequately because I think behind this bill stands a massive and a large moral dilemma that we have not yet addressed as a committee. That question is: Does a government have a responsibility to make available psychoactive narcotics for certain persons or for all persons?
I’ve read a lot on the development of governance and government and the principles thereupon, but I know of no such principle.
Gentlemen, your testimony is stunning, but I remain unconvinced that the decriminalization and the legalization of marijuana is desired or desirable in this country of Canada. So the government has not yet persuaded me. A miracle could happen and perhaps I could be persuaded in the next several days, but I hardly think so.
I just wonder if you could address the moral question that lies at the root of all of this. I’m an older woman now, but I know families who have younger teenaged children, 14 years old, and they tell me that they are being told that these drugs are in the schools everywhere and that they are watching every day for their children, to keep them from accessing these drugs because whoever brings them into the school knows what to do.
This bill is bothering me in a very terrible way. I think we should agonize a lot about it because it deserves to be agonized over. It’s a very serious thing. The Government of Canada is taking a position, and I am not sure it’s a good thing. As a matter of fact, I’m convinced it’s a bad thing.
The Chair: You may wish to answer that question. We’re here really asking for your expertise. If you’re being asked a personal question, that’s up to you whether you wish to answer or not.
Just one small admonition. We’re over time. So whatever the answers will be, can we make them fast? Moral questions are often very difficult to answer quickly.
Mr. Walsh: I do appreciate the question, and I do think the drug policy choices are moral choices. What is clear to me is that psychoactive substances of many stripes are widely available throughout the world, including in Canada, and the choice before government is not whether or not that will be so because it is in most places under situations of illegality that creates all sorts of additional harms in addition to the real risk that drug use can create.
I think the choice for government to regulate legally does not imply a liberalization as long as it goes with strict rules, especially preventing access to those who shouldn’t have access yet because of their development, youth, but also take the view that legal regulation is the government’s responsibility to protect people against things that can be harmful but for many people are used responsibly. It’s always going to be a question with drug policy of striking that balance. I don’t think the conversation is ever over. I think it is a deeply moral question for almost everybody concerned.
In my view, legal regulation is responsible, and in that sense an ethical and moral response to a problem that will never be solved, a dilemma that’s always real, but something that can be managed for better or worse.
I’m persuaded that a regulatory approach is a better approach than simply leaving the market in the hands of criminal enterprise.
The Chair: Thank you. We’ve covered a lot of ground.
Mr. Jelsma, you were an expert adviser to Bolivia. They chose to withdraw from the convention, changed the constitution and they came in with a reservation, if I’m right.
You’ve talked a lot about inter se today. Was that one of the options you considered in Bolivia?
Mr. Jelsma: The difference, in the case of Bolivia, was that there were not, at that point, other countries doing the same. Also the change in the constitution came first. For Bolivia, it was an obligation; it was laid down also in the law approving the new constitution to align their international obligations with the new constitution. The new constitution asks respect for the traditions of the coca leaf.
So we are currently also looking at the possibility of an inter se agreement around coca because the difficulty now is that it is resolved for Bolivia itself, but it does not allow international trade of natural coca leaf products. And an inter se agreement would also resolve that in the case of Bolivia.
The Chair: Thank you. I thank both of you for coming today and giving us your perspectives. That’s precisely what we asked for. We have heard from as many sources as we can on what the possible conclusions can be should Bill C-45 pass and you’ve done exactly that for us.
I thank you for your submissions and answering the questions of our senators.
Honourable senators, we’re continuing our study of the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada’s international obligations.
Today we have before us Ms. Gwendolyn Landolt, National Vice-President, REAL Women of Canada. Ms Landolt is accompanied by Ms. Diane Watts, researcher.
Thank you for appearing before us. As I’ve indicated to our witnesses, we would like a short statement and then we will turn to questions. I will remind senators that we want a short in camera meeting after the testimony.
Gwendolyn Landolt, National Vice-President, REAL Women of Canada: Thank you very much, Madam Chairman. It’s a great privilege to be here to speak to you on a matter of grave concern to everyone in Canada, men, women and children, and the implications not only to Canadians but also internationally.
Canada has ratified three UN treaties on drug control which requires criminalization of the production and distribution of marijuana.
Canada has also ratified the UN Convention on the Rights of the Child, article 33 of which says children must be protected from illicit drugs and prevented from being used in the production and trafficking of drugs.
The Convention of the Rights of the Child was confirmed and approved by the UN Human Rights Council in Geneva in March 2013. At that time, they specifically referred to the importance of article 33 to protect children. The three UN Drug Control Conventions were reviewed in April 2016, at the UN, and this is the first time in 20 years that they were reviewed. Again, the world leaders present at that meeting confirmed and approved it.
In addition to this, the UN International Narcotics Control Board holds meetings in Vienna every year in which they deal with the review of the drugs. So the drug treaties are very up-to-date as far as world leaders. They all agree with them. It seems to be almost unanimous, with one or two exceptions, and one, of course, Uruguay. But it seems that it’s powerfully supported by world leaders.
One of the concerns we have is that under Bill C-45, in sections 8 and 9, what happens is that those who are between 12 and 18 years of age are allowed to possess, distribute or share 5 grams of marijuana or 10 joints. This is completely in contravention of the UN Convention on the Rights of the Child.
Similarly, the UN Narcotics Control Board in 2017 in its annual report stated that Canada’s Bill C-45 was incompatible with the obligation assumed by Canada under the drug control treaties.
Under the terms of the treaties, Canada is supposed to give 12 months' notice of its withdrawal, but this has not been done.
Also, with regard to article 41 in the UN Convention on the Law of Treaties, it says it can only be agreed to if in the agreement and a modification of a treaty the object and the purpose of the treaty is not derogated from by the agreement.
So there is no way out by the fact that Canada is in contravention of the drug treaties, plus the UN Declaration on the Rights of the Child, and that there’s no escape under the UN drug treaties because of the fact that you cannot change the objects and purpose of a treaty. Even if two countries may try to modify it, it simply has to be a very difficult thing to achieve.
In 2013, Uruguay was the first country to regulate marijuana at the national level. Its regulation is considerably more restrictive than that provided in Bill C-45.
In Uruguay, the government is the only supplier of marijuana, putting limits on the way it is sold. Only citizens and permanent residents may participate in the marijuana program in Uruguay, and they must register with the government in order to purchase the marijuana. Individuals in Uruguay are restricted to 480 grams, which may be obtained only from licensed pharmacies.
The unexpected consequence of Uruguay’s marijuana law is that the U.S. government invoked the Patriot Act which prohibits U.S. banks from handling funds for distributors of marijuana. So international banks, both those with U.S. headquarters such as Citibank and the European banks such as Santander, have prohibited Uruguayan branches from providing services to the distributors of marijuana.
There were initially 13 pharmacies that had agreed to distribute it. Because of the Patriot Act, it has being reduced to four pharmacies, and those pharmacies can only deal with marijuana sales by cash; they have no ability to use credit cards. It is limited to distribution in Uruguay, because Uruguay has now been cut off from the entire financial services market, and every business associated with the newly legal marijuana industry risks being in violation of the U.S. drug laws and would lose access to U.S. banks and U.S. dollar transactions.
There is little doubt that Canada will also be facing such problems under the Patriot Act. President Obama overlooked the development of states’ use of marijuana, but under President Trump, the current administration has been very concerned about marijuana use. He invoked the Patriot Act in Uruguay just one month after he assumed the presidency of the U.S.
Canada will be very much in the spotlight.
By ignoring treaty obligations, Canada would be setting a very dangerous precedent for other countries to also violate UN treaties. Bill C-45 puts in jeopardy significant other treaties, such as the non-proliferation nuclear treaties, treaties against war crimes and the seven human rights treaties. This creates problems for the world order and international governance. It is not a trivial matter. Again, there is no way out but to follow the terms of the drug treaties. Giving notice is one choice.
The second choice is trying to use article 41 under the treaty agreement, but that’s extremely problematic, because it does change the objects and purpose of the drug acts.
The third choice is to withdraw from the treaty, as you can, and then come back in with reservations, but that is a long process.
The Vienna Convention on the Law of Treaties, which came into effect in 1980, specifically provides in section 3, article 54, that:
The termination of a treaty or the withdrawal of a party may take place:
(a) In conformity with the provisions of the treaty; or
(b) At any time by consent of all the parties after consultation with the other contracting States.
This has not occurred.
If Canada continues with its intention to pass Bill C-45, despite its many problems both in respect to domestic application and to international law, it must do so in a principled manner, especially as Canada prides itself on being a democratic country that respects and promotes the rule of law.
Canada has so far failed to do anything about the treaties in a principled manner. According to the information provided to this committee in March, Global Affairs says that we’re going to ignore the treaties — end of story. They are not going to do anything; they will ignore it.
This puts in jeopardy the entire international law system. It also puts in jeopardy all sorts of children in Canada. As a pro-family organization, it troubles us enormously that 12- to 18-years-olds under Bill C-45 have access to and may share marijuana. It is a very troubling situation. We would suggest, very emphatically, that Canada sit back and rethink what it is doing with regard to the substance of the bill and also the damage it is creating internationally.
There are very limited choices, but Canada, if it wants to do anything as a matter of principle, must follow the proper way and not arbitrarily say we’re disregarding it. That’s what’s been happening.
Thanks very much.
The Chair: Thank you.
Ms. Watts, are you just going to answer questions or do you have something to present?
Diane Watts, Research, REAL Women of Canada: We just have one more point to make as a women’s organization.
In 1995, at the UN Women’s Conference in Beijing, Canada introduced the concept of gender-based analysis. We’re concerned that there really hasn’t been much of an extent of use of this concept with Bill C-45. There are very great differences between the responses of male and female to various drugs. For example, responses to alcohol are different for women. Women respond more negatively. There are differences in the areas of dementia, depression — more for women — less in autism, schizophrenia, Parkinson’s — longer recovery for concussions among young women.
It has been discovered recently that cannabis reduces the blood circulation to the hippocampus of the brain, which is related to memory, learning and to Alzheimer’s. This study was done at the University of California, with 26,000 people participating, with a new instrument of measurement that was not available previously to envision the circulation of the brain.
It concerns us that this particular study did not have a gender-based analysis component, and we’re wondering to what extent this component will be applied to Bill C-45.
The Chair: Thank you.
We will go to questions now.
Senator Saint-Germain: Thank you to both of you for being here. I know you have travelled a long way.
[Translation]
In your brief, you state that Canada would be violating the United Nations Convention on the Rights of the Child, due to the absence of a criminal offence for those that are under 18 years of age when in possession or when distributing 5 grams or less of cannabis. You do know that once passed, Bill C-45 will be enforced in a complementary manner and in harmony with the provincial and territorial laws. We already know that applicable provincial laws in Canada prohibit the possession and the distribution of cannabis by youth. This is in fact what you want. Given the provincial and the territorial laws, how would Canada be breaking the law in this context where there is no distribution or possession of 5 grams of cannabis or more by youth in Canada?
[English]
Ms. Landolt: Yes, clause 8 of Bill C-45 provides — and it’s defined in clause 2 — that a young person is those between 12 and 18 may possess 5 grams of marijuana or 10 joints. Clause 9 provides that a young person, which is someone between 12 and 18, may distribute or share 5 grams of marijuana.
Clause 12 of Bill C-45 says that every family or every home may have four marijuana plants. As a result, a young person may take the marijuana from their home and take it to distribute or share with friends, to take it to school, to take it anywhere they want, to the local shopping mall, and share with their friends and there is no legal prohibition against that.
We are not dealing with 18 and up, which is something that is permissible. We are doing this which was in the bill, which means that the young person will be able to have marijuana from their home, use it and the police will not be able to do anything about it because it’s not illegal for them to possess and to distribute or share the marijuana.
This is quite different, for example, from alcohol. Alcohol, you’re prohibited entirely, but under this bill, the young child is allowed to do it, carry it, distribute, share and use it, and the police can do absolutely nothing because it’s perfectly legal.
Senator Saint-Germain: Thank you.
Senator Bovey: I want to follow this line a bit. We are aware that several provinces have denied the right for home cultivation, and the provinces are working on that aspect of the bill now.
The provision of the bill was to ensure that young people would not receive criminal penalties if they were caught using cannabis, and the provinces and territories have imposed fines and seizures of cannabis and preventative treatment. This is a balance of provincial and federal law under way now.
Given that criminalization causes significant harms to an individual and their families — and, as a mother, I can tell you those many decades ago, marijuana was brought to my children’s school grounds, and I’m going back to the 1970s with this, and, quite honestly, that was absolutely illegal and lots of education was done around it. My concern is, does it make sense to criminalize people, have a criminal record, for use of cannabis? Or are we better to have the regulations in place to prevent selling it and regulate its use and availability?
Ms. Landolt: No. Prohibition does work. When you say it’s legal, already, as you mentioned, even in the 1970s, even though it was illegal, some will use it, whether alcohol, cigarettes, there will always be those who will use it. But prohibition serves as a guideline to the conscience. For many people, if it’s legal then it’s more acceptable. If you have access to it, then if it’s legally accessible, more and more will use it.
We already have a problem in Canada with our children using marijuana, and this is just going to cause even more difficulties because when you make it legal, it must be all right. It must be healthy; it must be acceptable.
As I say, no law will ever prohibit, there will always be someone doing it, whether it is alcohol, cigarettes, marijuana or cannabis. But a law does serve to prohibit, to teach, to guide. If you remove the law, then it’s legal and more will use it who wouldn’t use it normally. Presumably your children never touched it, but there will be children who will. But more children will use it if it’s accessible and not legally prohibited.
Senator Bovey: I appreciate your viewpoint, but I’m afraid I’m going to have to agree to disagree on this one. If we go back to the history of prohibition in the 1930s with alcohol, we found that having regulation was a safer, healthier way of distributing alcohol. I appreciate your point.
Ms. Landolt: It’s a very important point you have raised. It’s a myth that prohibition in the 1920s failed. It did not fail. You still had the speakeasies. People would have access to it, as they always will. But the number of people who stopped drinking alcohol was phenomenal. There was no cirrhosis of the liver at that time. Please don’t say that prohibition didn’t work. It’s convenient to say, but it did work. And mental illness, all sorts of complications of alcohol simply ceased to exist because the majority of people were not using alcohol during the prohibition, although there were others who did, such as speakeasies.
The Chair: We are almost treading on the subject matter of a different committee. We are here on the international aspects. I’m going to remind senators and witnesses about that.
Senator Cordy: I know we are not supposed to tread on that, but I can’t let it pass either. Maybe it’s because I’m from Nova Scotia, which is by the ocean, but prohibition on alcohol did not work. People from ships were bringing it in. It made many people in the community very wealthy, so it didn’t work.
I would say that the war on drugs is not working. I guess we can pretend that marijuana is not being used by people in the public, particularly young people. I have never had marijuana. I have never had cannabis in my life, but I’m a believer that regulation will ensure that it’s safer.
But my question is related to our international obligations.
We heard from previous witnesses today that Canada is taking an active role in the United Nations drug discussions as they review the 10-year policy, the 10-year review, so I think contrary to what you said, Canada is actually taking a leading role.
We know that they also stated that the global drug policy is quite fractured.
We also heard that Canada is at the forefront of legalizing marijuana and that other countries are moving in the same direction. Some of those other countries were Jamaica, the Netherlands, Australia, Morocco, South Africa and New Zealand, and I’m just naming a few of them. As you stated previously in your testimony, we know that 20 per cent of Americans live in a state where cannabis is legal.
So this is contrary to some of comments that you made in your opening statement, so I wonder if you would comment on what we heard from other witnesses.
Ms. Landolt: The former comment you heard, in effect, was, “Oh, well, everybody will do it anyway, so we may as well be in the front of it,” but that is categorically untrue. When you have the April 2016 review of the drug treaties and it was unanimous, the world leaders spoke out against the drug and they said how in fact it had been.
Mr. Costa, who was the head of the Narcotics Control Board, has said prohibition has worked and is working and it’s a very good reason. Antonio Maria Costa he said it is very powerful, the prohibition against the drugs worldwide.
You’re not just dealing with the developing world. You’ve got problems in the undeveloped world or the Third World countries and if you remove any prohibition against drugs as, say, marijuana, you are going to have enormous troubles there because you don’t have the infrastructure that we have here in the developed world.
I can say categorically, I have been at the UN many, many times. I’ve discussed this and I do know that the world leaders have spoken out against it. In fact, as we said in our brief, anyone who derogated from the drug treaties was very unpopular at any time and if they said Canada was at the forefront they are on the forefront of many things lately, but I can tell you they are being sort of — they are out of touch with the world and certainly countries categorically do not want drugs to be readily available.
Senator Cordy: Thank you.
Senator Massicotte: I want to clarify, if I could, my understanding compared to yours and to see whether you acknowledge this. While the proposed legislation deals with criminality and therefore removes the criminal element for juveniles — you made the comment relative to kids below a certain age, so now you are right in saying the legislation removes that criminal element for these juveniles.
But I’m sure you are aware and you also acknowledge and with that you sort of say we are in contravention of the United Nations obligations and treaty, but you are certainly aware that every province has put or is putting legislation in place which will make it illegal — not criminal, but illegal — for juveniles to possess or partake in marijuana.
Which means yes, you are right in saying it’s removed from the federal legislation, specifically the legislation in Quebec and Ontario, and makes it very clear it will still be illegal for persons below a certain age — 18 years old in Quebec — to possess or to make use of marijuana and so on. Are you aware of that? Doesn’t that resolve some of your concerns re juveniles? I know it doesn’t deal with the issue of adults, but relative to young people?
Ms. Landolt: It doesn’t at all, no. We still have the raw reality that young people in Canada, young people 12 to 18, have access to and may use without any legal restriction. It hasn’t changed. Those over 18 is something else, but those under 18 is a major concern.
Senator Massicotte: If you wish I can send you the legislation in Quebec. That’s not accurate. It is illegal for a person below in Quebec to possess or make use of marijuana. It’s very clear. It makes it very clear. I agree on the federal side, but not the provincial sides.
So the choice legislators have is if you leave it as it is, being a criminal element, that means that 13-year-old who gets caught possessing marijuana, then he has a criminal record. What they would rather chose, as you know, historically, in the provinces for juveniles as opposed to sending them to prison because they smoked a marijuana joint, they are more development oriented, they are little bit like what they are doing in Portugal. They are basically trying to coerce and manage the issues through better habits.
But you don’t seem to acknowledge at all the provincial legislation in each case. Your interpretation is a free for all, but I suggest you read the provincial legislation in that respect which complements the federal legislation.
Ms. Landolt: Well, okay, let me say, first of all, as you know, the drug act, the drug control act, is federal and they have prohibited, up until now, the use of marijuana.
Now, under this legislation, because of the federal-provincial jurisdictions, the provinces will be in charge of distribution. Under the legislation, the provinces will be in charge of distribution and the sale and it will vary across every province that’s different. But if the federal government said, “No, we are going to have, as we’ve always had, a drug control act,” then they wouldn’t be doing that. It’s because the federal government has released the lever and said “Go ahead” that that is what is happening, but the provinces and the territories would not be doing that if it weren’t for the legislation.
Senator Massicotte: I suggest you read the legislation being proposed in the provinces. I think it complements very well the federal legislation. It attacks your concern relative to possession of cannabis by youth.
Ms. Landolt: Maybe I’m missing the point — probably — but I think what you’re saying is that the provinces can restrict it.
Senator Massicotte: They have.
Ms. Landolt: But they cannot restrict it because it says what the federal act governs what the province can do. They only have so much jurisdiction and it’s the federal legislation that says what the provinces may do. If the federal government says no, they wouldn’t. But the federal government has said they can.
Senator Massicotte: You are right re the criminal element of it. That’s why it’s going to remove the criminal element. But it doesn’t prohibit the provinces from putting laws in place, which is the case relative to possession of marijuana by the youth, and I think it satisfies your concern. But I suggest you read it. If not, I can send you a copy of the legislation, at least from Quebec.
[Translation]
Senator Dawson: I do not wish to contradict the witness nor accuse her of spreading fake news, but I have before me a joint statement by the United Nations and the World Health Organization, recognizing that the war on marijuana is a failure.
As a member of the Canadian delegation of the Inter-Parliamentary Union, I have often visited the United Nations. We participated in a UN conference during which we debated this very issue. The conclusion was clear: countries have considerable leeway to act within their jurisdictions.
It is not the case that the United Nations has declared the war a success. Everyone recognized its failure. I would therefore ask you to correct yourself. Unfortunately, I only received the statement in French. I will provide it to the clerk so she can distribute it to the committee, as this issue is quite important. It is a joint statement by the World Health Organization and the United Nations. I would not want committee members to get the wrong impression that you are correct. Alas, I think this was an example of fake news.
[English]
Ms. Watts: Thank you for your interjection. In our brief we quote Antonio Maria Costa, executive director of the UN Office on Drugs and Crime, UNODC. In his analysis of the effect of the drug treaties, he stated:
Legal controls on drug use have been successful. Over the last decade, world output of cocaine and amphetamines has been stabilized, with a reduction in marijuana use and opium production. Without legal prohibitions against these drugs, the results would be markedly different.
This is someone from the UN Office on Drugs and Crime. So there is obviously a difference of opinion.
Senator Dawson: I’m not the giving the opinion of an individual.
The Chair: We have your statement within the record. If you could file the document you are referring to for the purpose of the committee.
Senator Dawson: I will send it to the clerk after the meeting and I will find both versions so we can distribute it quickly. This is not the opinion of an individual, it is the World Health Organization and the UN, it is not somebody at the UN. If I were a drug enforcer I certainly would not like this, but if I were the World Health Organization I would say, if it’s right, let’s do it.
Ms. Landolt: The World Health Organization is not the General Assembly of the United Nations. It’s the bureaucrats who are there but they don’t actually have the right to determine policy. They are to implement the policy at the UN, and you can get all sorts of bureaucrats at the UN opposing, but it’s not the policy of the UN, it’s just a bureaucrat's opinion. I don’t think you could put much stock in what they are saying. I don’t think that the World Health Organization is one to go by, but you should go by one who is a specialist in drugs, which is the UN Committee on Narcotics Control. They are the specialists, not the World Health Organization.
Senator Dawson: I will put on the record that this is a statement by the UN, not by an individual at the UN, it is a joint statement between the World Health Organization, and I think their credibility is established. Not an organization of the UN not a functionary, not a civil servant, not an employee, it is by the UN the institution.
Ms. Landolt: No, it may have been the world health policy, but it was not the policy of the UN. I cannot begin to tell you how different that is, and how incorrect it is to say that this is the UN speaking. It is not the UN. It is in fact, it’s not the general assembly. It’s not the policy. It doesn’t carry much weight worldwide.
Senator Dawson: We obviously have a difference of opinion. I will ask if you can send a copy of the statement to the witness. It might be interesting that she has access to that.
The Chair: I’ll not reply to your last comment. The witnesses are here to testify, and give their opinions. We have had a healthy debate. Difference of opinion. We will have your statement, Senator Dawson, and it will form part of our record so the clerk can provide it to the witnesses should they wish it.
On that note, we’ve had a debate, a difference of opinion, that is what we’re looking for. We’re looking for input from Canadians who wish to express themselves, and on that basis I thank both witnesses for coming forward and putting their opinions on the record. Of course, we as senators of this committee will be weighing all of the submissions made as we look to our report. Thank you for coming.
Senators, we are going to suspend for two minutes to go in camera.
(The committee continued in camera.)