CANADA’S INTERNATIONAL OBLIGATIONS UNDER THE LEADING INTERNATIONAL CONVENTIONS ON THE CONTROL OF NARCOTIC DRUGS
Daniel Dupras
Law and Government Division
20 October 1998
LIBRARY OF PARLIAMENT
TABLE
OF CONTENTS
IMPLEMENTATION
OF TREATIES IN CANADA
THE
CONVENTIONS ON DRUGS AND PSYCHOTROPIC SUBSTANCES
A.
Single Convention on Narcotic Drugs, 1961
1. Establishment
of an International Institutional Structure
2.
Prohibition
and Control of Prohibited Substances
B.
Convention on Psychotropic
Substances
C.
Convention against Illicit
Traffic in Narcotic Drugs and
BRIEF
DESCRIPTION OF THE CONTROLLED DRUGS AND
SUBSTANCES ACT
PARTICULAR
ASPECTS OF THE INTERNATIONAL CONVENTIONS ON
DRUGS
A.
Particular Features of National Legal and Judicial Systems
B.
Possession of Cannabis and Rehabilitation Programs
1. Extracts
from the Conventions
a. Single
Convention, 1961
b. Convention
on Psychotropic Substances, 1971
c. Convention
against Illicit Traffic, 1988
2. Possession
of Cannabis
3.
Rehabilitation Programs
C.
Legal Weight of the Resolutions and Declarations of International
Organizations
APPENDIX:
The Procedure for Concluding, Implementing, Ratifying and Coming Into
Force of an International Treaty in Canada
Over
the years, the traffic in illicit drugs has grown to alarming proportions.
Greater cooperation among countries seems to be the only hope if this
scourge is to be eradicated one day. Such
cooperation takes various forms, and is set out in more concrete form in three
international Conventions: the Single
Convention on Narcotic Drugs, 1961 (Single Convention, 1961),([1])
the Convention on Psychotropic
Substances of 1971([2])
and the Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances of
1988
(Convention against Illicit Traffic).([3])
As their titles suggest, these conventions deal with matters that are
specific to the problems of narcotic drugs and psychotropic substances, and
the traffic in these, which are discussed in greater detail below.
Canada
is a Party to each of these Conventions, and takes an active part in the
international battle against the illicit trade in drugs.
These Conventions require that member states adopt specific legislative
measures against the trade in illicit drugs.
In 1996, the Canadian legislation on this subject was revised to, among
other things, ensure that it complied with Canada’s international
obligations.([4])
The
following pages give a brief description of:
the most important of the undertakings made by the parties to these
three Conventions; key comments on the scope of those undertakings; and the
procedures that the parties are to follow in complying with them.
Before proceeding with the description and comments, however, the
relationship between international law and Canadian domestic law is discussed.
In addition, the appendix describes the procedure for concluding,
implementing, ratifying and coming into force of an international treaty in
Canada.
IMPLEMENTATION
OF TREATIES IN CANADA
In
Canada, the legislative branch (i.e., Parliament and the provincial
legislative assemblies) have sole jurisdiction to make rules,([5])
which they do by enacting legislation.([6])
They may also enact provisions delegating the rule-making power to a
regulatory authority. The only
limits on this power are those imposed on the legislative branch by the
Constitution. Examples of
limitations on the power of the legislative branch are the requirement that
the division of legislative powers between the federal and provincial
governments not be violated, and the Canadian
Charter of Rights and Freedoms.([7])
However,
other considerations apart from the Constitution may influence the exercise of
legislative power. Implementation
of an international treaty is one example.
By becoming a party to the three treaties on illicit drugs and traffic
in illicit drugs, the Government of Canada has undertaken to adapt its own
legislation on drugs to ensure that it complies with the provisions of the
treaties. All the measures that a state must take domestically to comply with
the provisions of an international treaty constitute the “implementation”
of the treaty. The most obvious
step in implementing a treaty is the adoption or amendment of legislative
provisions.
Not
all treaties entered into by Canada require legislative action.
If domestic legislation already complies with the undertakings made, as
is often the case, there is no need for legislative action.
If the treaty has no effect in domestic law, again, there is no need
for legislative action.
However,
before ratifying an international treaty, the Governor in Council should
ensure that the Government of Canada complies with the obligations imposed on
the States that are party to the treaty.
Otherwise, the Government of Canada could be in default of a treaty as
soon as it was ratified. One
aspect of this verification process is to ensure that Canadian legislation,
both federal and provincial, complies with the obligations in the treaty.
It
can be assumed that, at the time the Government of Canada ratified the three
drug Conventions, it had ensured that its legislation complied with the
obligations undertaken. The
relevant legislative provisions at that time were to be found in the Criminal
Code, the Food and Drug Act and
the Narcotic Control Act,
provisions of which were later, in 1996, grouped into a single statute, the Controlled
Drugs and Substances Act.([8])
Today, this legislation, which has been in force since 14 May 1997,
implements the essential aspects of Canada’s obligations under the three
drug Conventions.([9])
A
detailed study of the implementation of all the undertakings made by the
Government of Canada in the three drug Conventions cannot be made in the
context of this paper. Some
examples, however, are given in the following sections, which describe the
content of each of the Conventions.
THE
CONVENTIONS ON DRUGS AND PSYCHOTROPIC SUBSTANCES
The three Conventions referred to above require that the signatory states enact minimum measures relating to the prohibition of narcotic drugs, psychotropic substances and their precursors, and to the traffic in those substances, and that they cooperate in the international battle against these substances. After the content of each of these Conventions is examined in more detail below, specific aspects of them are discussed.
A.
Single Convention on Narcotic
Drugs, 1961
The
Single Convention on Narcotic Drugs,
1961 owes its name to the fact that it came into force to replace several
international conventions that had been adopted earlier.([10])
In addition to provisions regarding the control of prohibited
substances, the Act provides for the establishment of an international
institutional structure with responsibility for monitoring the application of
the Convention.
The
Single Convention, 1961 was amended, in 1972, by the
Protocol amending the Single Convention on Narcotic Drugs, 1961.([11])
Canada has ratified the Single Convention, 1961 and the Protocol; thus,
references in this paper to the text of the Single Convention, 1961 are to the
amended version of that document.([12])
1.
Establishment of an International Institutional Structure
The
adoption of the Single Convention, 1961 took place under the aegis of the
United Nations (UN), and its institutional structure is closely associated
with the UN.([13])
Responsibility for applying the Single Convention, 1961 and for
controlling narcotics is divided among the United Nations Economic and Social
Council (the Council), the Council’s Commission on Narcotic Drugs (the
Commission), and the International Narcotics Control Board (the INCB).
The
Council is a permanent organ of the General Assembly of the United Nations;
the Commission and the Board are under the Council.
Under the Single Convention, 1961, the Board is the international
institution responsible for monitoring the application of the Convention by
states, while the Commission is the forum in which the Parties discuss and
decide issues, just like the Council at another level.
The
INCB’s supervisory role takes a variety of forms and imposes a variety of
obligations on the Parties. The
Parties must send to the INCB all information and estimates required under the
Single Convention, 1961.([14])
The INCB fixes the dates and prescribes the form for supplying
information.([15])
If a state fails to provide the information, the INCB may establish its
own estimates and request the cooperation of the states concerned, to the
extent practicable.([16])
The
INCB may request explanations from states that do not seem to be carrying out
the provisions of the Single Convention, 1961 and may call upon a state to
adopt remedial measures. The INCB
may call the attention of the Parties, the Council and the Commission to any
matter relating to the foregoing.([17])
It may also publish a report on the matter and communicate it to the
Council, which shall forward it to all Parties.([18])
The INCB
shall
prepare an annual report on its work and such additional reports as it
considers necessary containing also an analysis of the estimates and
statistical information at its disposal, and, in appropriate cases, an account
of the explanations, if any, given by or required of Governments, together
with any observations and recommendations which the Board desires to make.
These reports shall be submitted to the Council through the Commission,
which may make such comments as it sees fit.([19])
2.
Prohibition and Control of Prohibited Substances
The
central aspect of the Convention is limiting the production and trade in
prohibited substances to the quantity needed to meet the medical and
scientific needs of the state Parties. The
Convention requires that states adopt the necessary legislative and regulatory
measures for establishing the prohibitions and controls required, within their
own territories. It would be too
time-consuming to list all the measures that states are required to adopt, and
so these comments will be limited to certain measures.([20])
To summarize: anything relating to the trade in, and production and use
of, the substances should be governed by legislative or regulatory measures.
In
addition, the measures prescribed by the Single Convention, 1961 are the
minimum measures that the states must adopt; there is nothing to prevent them
from adopting more strict or severe measures of control.([21])
The
substances to be controlled are determined according to Schedules appended to
the Convention. There are four
Schedules, each with its own specific features.([22])
The substances in Schedule I are subject to all prohibitive measures
set out in the Convention.([23])
The substances in Schedule II are exempt from the application of two
particular provisions of the Convention.([24])
The substances in Schedule III are exempt from the application of a
larger number of provisions of the Convention.([25])
On the other hand, the substances in Schedule IV – in addition to
being subject to all provisions of the Convention – are identified as
narcotics and are subject to all the special measures of control that states
are bound to adopt.([26])
In addition, opium, the opium poppy, the coca bush, the cannabis plant,
poppy straw and cannabis leaves are subject to special provisions.([27])
These
Schedules may be amended, at the request of a Party or of the World Health
Organization, to add or remove a substance, provided that all information in
support of such an amendment is supplied.
States receive and examine such requests and the Commission decides
whether to amend the lists. The
Secretary-General of the United Nations communicates that decision to the
states.([28])
The decision takes effect on the date of its receipt, and states must
then take such action as may be required to implement it.([29])
At the national level, each state should maintain a special administration for the purpose of applying the provisions of the Single Convention, 1961. Under the Convention, states are required to supply an annual report to the Commission on the implementation of the Convention within their territory, and the text of all laws and regulations promulgated in order to give effect to the Convention.([30])
Also under the Convention, states must estimate their needs for narcotics and inform the INCB of these.([31]) They must also supply the INCB with statistics on the production, use in the manufacture of other drugs, of preparations in Schedule III or of substances not covered by the Convention, as well as consumption, imports, exports, seizures and stocks of drugs.([32]) The total of the quantities of drugs should not exceed the quantity needed to satisfy consumption requirements, for use in the manufacture of other drugs and of preparations in Schedule III, or of substances not covered by the Convention, and also for needs in exportation, stocks and special projects.([33])
States
that permit the cultivation of opium or cannabis must maintain national
agencies to supervise their cultivation.([34])
In addition, a state shall not permit the export of a drug unless it
has ascertained that the transaction complies with the laws and regulations of
the country receiving the goods.([35])
Provisions
regarding the criminal nature of any form of transaction with respect to
prohibited substances form much of the Single Convention, 1961.
To summarize: in addition
to measures for supervising and controlling lawful transactions with respect
to drugs, any activity that is not directly medical or scientific in nature
should be made an offence. The
Convention deals with controlling the manufacture of drugs,([36])
trade and distribution,([37])
international trade,([38])
possession,([39])
measures of supervision and inspection,([40])
action against illicit traffic,([41])
the enactment of penal provisions,([42])
seizure and confiscation([43])
and the treatment of addicts.([44])
B.
Convention on Psychotropic
Substances
The
Convention on Psychotropic Substances
supplements the Single Convention, 1961 in that it deals with substances that
were not covered by the earlier Convention. Like the Single Convention, 1961,
whose objective is to put controls on the manufacture and use of, and trade
in, drugs, the objective of the Convention
on Psychotropic Substances is to place equally stiff controls on these
substances. In addition, it
recognizes the roles of the existing institutions (the Council, the Commission
and the INCB) as forums for discussion and decision-making or as supervisory
bodies. The following is a
summary of the main provisions of the Convention on Psychotropic Substances:
·
Psychotropic
substances are identified in four Schedules appended to the Convention.
·
These
Schedules may be amended by the Commission following a consultation process
involving the World Health Organization; the Parties to the Convention must
implement any such amendments.([45])
·
A
preparation (i.e., a mixture containing a psychotropic substance) is subject
to the same measures of control as the psychotropic substance which it
contains.([46])
·
The
use of psychotropic substances is limited to medical and scientific purposes.([47])
·
The
Parties should maintain a special national administration for the purpose of
applying the Convention.([48])
·
The
Parties must exercise close supervision over the manufacture of and
transactions with respect to psychotropic substances, including by
establishing licensing and registration systems.([49])
·
The
Parties must ensure that substances listed in Schedules II, III and IV may be
obtained only by individuals with medical prescriptions.([50])
·
The
Parties must specify the content of warnings to be printed on packages of
psychotropic substances relating to directions for use, cautions and risks to
the safety of the user.([51])
·
The
Parties must regulate and closely monitor international trade in psychotropic
substances.([52])
·
The
Parties must establish a system of inspection of manufacturers, exporters,
importers and distributors and of medical and scientific institutions that use
psychotropic substances.([53])
·
The
Parties must provide the Secretary-General with such information as the
Commission may request as well as an annual report regarding the working of
the Convention in their territories. The Parties must supply the prescribed
annual statistical reports to the INCB.([54])
·
The
Parties are required to take measures for the prevention of abuse of
psychotropic substances and for the early identification, treatment,
education, after-care, rehabilitation and social reintegration of the persons
involved in such abuse.([55])
·
The
Parties are required to adopt measures against the illicit traffic in
psychotropic substances and to enact penal provisions relating to illicit
transactions with respect to those substances.([56])
C.
Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances
The main objective of the Convention against Illicit Traffic is to promote cooperation among the Parties for eliminating the illicit traffic in narcotic drugs, psychotropic substances and their precursors. Like the other two Conventions, it refers to the international institutions that have already been established as bodies for discussion, and which exercise control. The main provisions of this Convention are as follows:
·
The
Parties are required to adopt legislative measures to establish as criminal
offences all activities that may be directly or indirectly related to the
illicit traffic in narcotic drugs, psychotropic substances or their
precursors.([57])
·
The
possession, purchase or cultivation of narcotic drugs or psychotropic
substances for personal consumption contrary to the provisions of the Single
Convention, 1961 must also be established as an offence.([58])
·
The
sanctions associated with these measures must take into account the grave
nature of the offence and include imprisonment or other forms of deprivation
of liberty, pecuniary sanctions and confiscation.([59])
·
In
addition to these penalties, there may be additional measures such as
treatment, education, after-care, rehabilitation and social reintegration.([60])
·
If
the offence is minor in nature, these measures may be substituted for the
sanctions.([61])
·
In
the case of offences for personal use, the additional measures may be
substituted for or added to the sanctions.([62])
·
In
all cases, the sentence imposed must take into account the serious nature of
the act.([63])
·
The
sanction must have deterrent effect.([64])
·
In
addition, certain factors – such as the serious nature and circumstances of
the offence – should be borne in mind when considering parole.([65])
·
The
Convention against Illicit Traffic also deals with the measures that states
must take to establish jurisdiction and enable confiscation of property used
in the commission of offences and the proceeds of those offences.([66])
·
The
Parties must adopt measures to provide for extradition, mutual legal
assistance, the transfer of proceedings, cooperation and assistance for
transit states and controlled delivery.([67])
·
The
Convention defines precursors as substances used in the manufacture of
narcotic drugs or psychotropic substances, lists them in the Schedules, and
requires that Parties adopt measures to prevent diversion of such substances.([68])
·
The
Convention establishes the procedure for amending the lists of precursors; the
final decision to amend a list is to be made by the Commission, as in the
other Conventions.([69])
·
The
Convention requires that Parties adopt measures to eliminate illicit
cultivation of plants containing narcotic or psychotropic substances and the
demand for those substances, under the provisions of the Single Convention,
1961.([70])
The Convention adds that these measures must respect fundamental human
rights and take due account of traditional licit uses, where there is historic
evidence of such use, as well as the protection of the environment.([71])
·
The
Convention calls for cooperation among the Parties in eliminating illicit
cultivation.([72])
·
The
Parties must adopt appropriate measures to eliminate or reduce illicit demand
for narcotic drugs and psychotropic substances with a view to reducing human
suffering and eliminating financial incentives for illicit traffic.([73])
·
The
Convention requires that Parties adopt measures to control commercial carriers
to ensure that they are not used to transport illicit substances.([74])
·
The
Parties must adopt labelling documents and procedures for lawful shipment.([75])
·
The
Convention also requires that Parties adopt measures for controlling illicit
transport by sea and for monitoring free trade zones and free ports and the
illicit use of the mail system.([76])
·
The
Convention sets out the information that the Parties must supply to the
Commission, and the functions of the Commission.([77])
·
The
Convention sets out the functions of the INCB and the reports that the INCB
must produce.([78])
·
The
Convention provides that the Parties may adopt more severe measures than those
provided by the Convention.([79])
BRIEF
DESCRIPTION OF THE CONTROLLED DRUGS AND
SUBSTANCES ACT
As
mentioned earlier, the Controlled Drugs
and Substances Act covers the most important of the legislative provisions
that Canada is required to enact under the three Conventions cited earlier.([80])
The Schedules attached to the Act list the substances (narcotic drugs,
psychotropic substances and precursors) which are subject to restrictions.
These Schedules contain the same substances as are described in the
Schedules to the three Conventions, divided into different groups.([81])
Part
I of the Act creates offences associated with illicit transactions involving
controlled substances (possession, possession for the purpose of trafficking,
exporting and importing, production, etc.) and provides for the penalties that
may be imposed for these offences.([82])
Part
II of the Act provides for enforcement and coercion measures such as the
issuance of warrants, searches, restraining orders, seizures, confiscations,
etc.([83])
Part III deals with disposal of controlled substances.([84])
Part IV provides for the designation of inspectors to apply the
regulations made under the Act.([85])
Part
V gives the Minister of Health, who is the Minister responsible for the
administration of the Act, the power to make orders for contraventions of
regulations made under the Act and provides for the procedures that follow on
the making of such orders.([86])
Part
VI sets out certain rules of evidence and procedure that apply to the offences
created by the Act.([87])
This is also the Part describing the powers delegated to the Governor
in Council to make regulations for carrying out the Act.([88])
The regulatory powers of the Governor in Council are very broad and
relate to almost all of the obligations set out in the three Conventions.
For example, the following matters are determined by regulation:
·
measures
to control lawful transactions with respect to controlled substances
(importation, exportation, production, packaging, sending, transportation,
delivery, sale, provision, administration, possession or obtaining);([89])
·
requirements
regarding the issuance of, fees payable for, and classes of, permits;([90])
·
the
specifications of packages used for transactions with respect to controlled
substances;([91])
·
measures
for controlling advertising with respect to controlled substances;([92])
·
the
books and records that must be kept by persons involved in transactions with
respect to controlled substances.([93])
To
date (October 1998), the Governor in Council has made three sets of
regulations pursuant to the powers conferred by the Act.
The Narcotic Control
Regulations deal with the possession of narcotics by authorized persons,
permits and authorized distributors, pharmacists, practitioners and hospitals.([96])
The Controlled Drugs and
Substances (Police Enforcement) Regulations allow police forces to be
exempted from the application of certain provisions of the Act for the
purposes of their investigations. Those
regulations also prescribe the formalities for exemption and the reports that
must be filed by the police forces.([97])
Lastly, the Regulations
Exempting Certain Precursors and Controlled Substances from the Application of
the Controlled Drugs and Substances Act exempt the substances listed in
the Schedule from the application of the Act.([98])
PARTICULAR
ASPECTS OF THE INTERNATIONAL CONVENTIONS ON DRUGS
As
noted earlier, it would be too time-consuming to comment on all aspects of
these Conventions and to examine how they are implemented in Canada or in
other countries. Accordingly,
comments are limited to three particular topics:
·
respect
for the particular features of national legal and judicial systems in
implementing the Conventions;
·
the
possibility of Parties decriminalizing possession and use of cannabis and
establishing programs to rehabilitate addicts; and
·
the
legal weight of the resolutions and declarations of international
organizations.
A.
Particular Features of National Legal and Judicial Systems
Each
state has its own legal and judicial system, and each of those systems has its
own characteristics. For example,
in Canada there is a presumption of innocence in criminal cases; a person is
presumed to be innocent until he or she is found guilty following a judicial
process. The consequence of this
principle is that investigators are required to collect all the evidence that
is needed for an accused to be charged and convicted.
The accused may refuse to participate in the investigation, by
remaining silent, and cannot be compelled to testify at his or her trial.
In other countries, the rules may be different.
As well, each country has its own approach to the penalties and
sentences imposed. Some countries
place greater emphasis on punishing the crime, while others prefer the
approach of rehabilitating criminals.
The
three Conventions recognize these particular features of national legal and
judicial systems and specify that the measures adopted by the states will
respect them. The words used are
different from one Convention to another, but the intention seems to be the
same. Article 36 of the Single
Convention, 1961 states: “subject to its constitutional provisions
…”; article 21 of the Convention on
Psychotropic Substances states: “having due regard to their
constitutional, legal and administrative systems …”; and article 3 of the
Convention against Illicit Traffic states: “subject to its constitutional
principles and the basic concepts of its legal system.”([99])
In
Canada, these particular features may be identified as being all the elements
of constitutional law to which each level of government in the Canadian
federation (the federal government and the provinces), and each branch of that
government (legislative, executive and judicial), is subject.
The
three Conventions recognize that implementation is subject to the particular
legal features of the states that become Parties.
In fact, the substance of these clauses is implied in all international
treaties. A state can go ahead
and enter into as many treaties as it likes, but implementation of those
treaties will always be subject to “constitutional principles” and the
“basic concepts of its legal system.”
Implementation that does not comply with those principles and concepts
will be void or non-existent at the national level; and failing
implementation, there can be no ratification.
Respect
for “constitutional principles” and the “basic concepts of its legal
system” takes on particular importance in Canada.
The division of legislative powers between the federal and provincial
governments means that the federal government must not infringe the
jurisdictions of the provinces in implementing and ratifying a treaty.
If the subject matter of the treaty requires legislative action in a
field within provincial jurisdiction, the federal government – before
ratifying a treaty – will have to secure the cooperation of the provinces in
ensuring that their legislation is in conformity with its terms.
With
respect to the three drug Conventions, the legislative measures needed to
implement the aspects of the Conventions making the illicit traffic of drugs
an offence all fall under the criminal law.
Criminal law is within federal jurisdiction, so Parliament could act
alone to implement those aspects of the treaties.
There could be a federation in which criminal law is within the
jurisdiction of its provinces or states; in that case, the provinces or states
would have to take action to implement the drug treaties before the federal
state in question could ratify them.
On
the other hand, health falls within provincial jurisdiction; as a result, it
is the provinces that set up rehabilitation programs for addicts.
This division of powers within the Canadian federation does not seem to
create any difficulties in terms of the implementation of the three
Conventions.
Since
the Canadian Charter of Rights and
Freedoms was enacted in 1982 and entrenched in the Canadian Constitution,
there can be no doubt that its provisions are elements of the “basic
concepts of the legal system” of Canada.
Parliament and the legislatures may not disregard the Charter, and the
numerous judgements of the Supreme Court of Canada act as a reminder of this
fact.
This
means that all the provisions of the Charter dealing with individual rights in
the judicial system are basic elements of the Canadian legal system and may
not be disregarded. Accordingly,
it would be undesirable to infringe the following legal guarantees with the
excuse of combatting the scourge of drugs:
·
guarantee
against unreasonable search and seizure;([100])
·
guarantee
against arbitrary detention or imprisonment;([101])
·
guarantee
of being informed of the reasons for arrest or detention;
·
guarantee
of access without delay to counsel, and of being informed of that right;([102])
·
guarantee
of being informed without unreasonable delay of the offence charged;
·
guarantee
of being tried within a reasonable time;
·
guarantee
of not being compelled to testify against one’s self;
·
guarantee
of being presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal;
·
guarantee
of not being denied reasonable bail without just cause;
·
guarantee
of the benefit of trial by jury where the maximum punishment for the offence
is imprisonment for five years or a more severe punishment;
·
guarantee
of not being found guilty on account of any act or omission unless, at the
time of the act or omission, it constituted an offence under Canadian or
international law or was criminal according to the general principles of law
recognized by the community of nations;
·
guarantee
of not being tried again for an offence if finally acquitted of it;
·
guarantee
of not being tried or punished again for an offence if finally found guilty
and punished for it;([103])
·
guarantee
against any cruel and unusual treatment or punishment.([104])
The
“basic concepts of a legal system” should not be confused with the policy
statements that a government may make from time to time.
Normally, a statement of that nature expresses the policy of the
government on a particular subject, and the process that it intends to follow
to implement that policy. Neither
the government policy nor the process should be considered as part of those
basic concepts.
B.
Possession of Cannabis and Rehabilitation Programs
As
explained above, the Conventions require states to adopt measures for the
control of narcotic drugs and psychotropic substances within their
territories. Those measures must
be very restrictive, and the only authorizations permitted are limited to
medical and scientific use. On
the other hand, despite these Conventions, some countries have adopted
measures that permit simple possession of cannabis, while others have chosen
to take a tolerant attitude toward simple possession.
Still other countries have adopted rehabilitation programs for addicts
that allow them to continue to consume the drugs on which they are dependent,
or substitutes for those drugs, during their period of rehabilitation.
Opinion is divided as to whether such countries are free to adopt
measures of this nature and still be in compliance with their obligations
under the three Conventions.
For
example, the Netherlands tolerates possession of cannabis for personal use;
Belgium, like the Netherlands, has allowed “coffee shops” to be set up
where certain quantities of cannabis may be consumed; and Switzerland has
rehabilitation programs that allow addicts to receive the drugs on which they
are dependent, or substitutes for those drugs.
The
question remains as to whether these countries, which have in fact ratified
the three Conventions, are free to permit the use of cannabis and to establish
rehabilitation programs that use prohibited drugs or substitutes.
1.
Extracts from the Conventions
The
following provisions of the three Conventions are those considered to be the
most relevant for the purposes of this paper (emphasis is added):
Article
4 (General
obligations)
The
Parties shall take such legislative and administrative measures as may be
necessary:
a)
To give effect to and carry out the provisions of this Convention
within their own territories;
b)
To co-operate with other States in the execution of the provisions of
this Convention; and
c)
Subject to the provisions of this Convention, to limit exclusively
to medical and scientific purposes the production, manufacture, export,
import, distribution of, trade in, use and possession of drugs.
Article
33 (Possession
of drugs)
The
Parties shall not permit the possession of drugs except under legal
authority.
Article
36
(Penal provisions)
1.
(a) Subject to its constitutional limitations, each Party shall adopt such
measures as will ensure that cultivation, production, manufacture, extraction,
preparation, possession, offering, offering for sale, distribution,
purchase, sale, delivery on any terms whatsoever, brokerage, dispatch,
dispatch in transit, transport, importation and exportation of drugs contrary
to the provisions of this Convention, and any other action which in the
opinion of such Party may be contrary to the provisions of this Convention,
shall be punishable offences when committed intentionally, and that serious
offences shall be liable to adequate punishment particularly by imprisonment
or other penalties of deprivation of liberty.
(b)
Notwithstanding the preceding subparagraph, when abusers of drugs have
committed such offences, the Parties may provide, either as an alternative to
conviction or punishment or in addition to conviction or punishment, that such
abusers shall undergo measures of treatment, education, after-care,
rehabilitation and social reintegration in conformity with paragraph 1 of
article 38.
[...]
b.
Convention on Psychotropic
Substances, 1971
Article
5
(Limitation of use to medical and scientific purposes)
1.
Each Party shall limit the use of substances in Schedule I as provided
in article 7.
2.
Each Party shall, except as provided in article 4, limit by such
measures as it considers appropriate the manufacture, export, import,
distribution and stocks of, trade in, and use and possession of,
substances in Schedules II, III and IV to medical and scientific purposes.
3.
It is desirable that the Parties do not permit the possession
of substances in Schedules II, III and IV except under legal authority.
Article
7
(Special provisions regarding substances in Schedule I)
In
respect of substances in Schedule I, the Parties shall:
a)
Prohibit
all use except for scientific and very limited medical purposes by duly
authorized persons, in medical or scientific establishments which are directly
under the control of their Governments or specifically approved by them;
b)
Require
that manufacture, trade, distribution and possession be under a special
licence or prior authorization;
[...]
Article
9
(Prescriptions)
1.
The Parties shall require that substances in Schedules II, III and IV
be supplied or dispensed for use by individuals pursuant to medical
prescription only, except when individuals may lawfully obtain, use,
dispense or administer such substances in the duly authorized exercise of
therapeutic or scientific functions.
[...]
3.
Notwithstanding paragraph 1, a Party may, if in its opinion local
circumstances so require and under such conditions, including record keeping,
as it may prescribe, authorize licensed pharmacists or other licensed retail
distributors designated by the authorities responsible for public health in
its country or part thereof to supply, at their discretion and without
prescription, for use for medical purposes by individuals in exceptional
cases, small quantities, within limits to be defined by the Parties, of
substances in Schedules III and IV.
Article
20
(Measures against the abuse of psychotropic substances)
1.
The Parties shall take all practicable measures for the prevention of
abuse of psychotropic substances and for the early identification, treatment,
education, after-care, rehabilitation and social reintegration of the persons
involved, and shall co-ordinate their efforts to these ends.
[...]
c.
Convention Against
Illicit Traffic, 1988
Article
3
(Offences and sanctions)
[…]
2.
Subject to its constitutional principles and the basic concepts of its
legal system, each Party shall adopt such measures as may be necessary to
establish as a criminal offence under its domestic law, when committed
intentionally, the possession, purchase or cultivation of narcotic
drugs or psychotropic substances for personal use contrary to the
provisions of the 1961 Convention, the 1961 Convention as amended or the 1971
Convention.
[…]
6.
The Parties shall endeavour to ensure that any discretionary legal
powers under their domestic law relating to the prosecution of persons for
offences established in accordance with this article are exercised to maximize
the effectiveness of law enforcement measures in respect of those offences
and with due regard to the need to deter the commission of such offences.
[…]
11.
Nothing contained in this article shall affect the principle that the
description of the offences to which it refers and of legal defences thereto
is reserved to the domestic law of a Party and that such offences shall be
prosecuted and punished in conformity with that law.
Article
14
(Measures to eradicate illicit cultivation of narcotic plants and to eliminate
illicit demand for narcotic drugs and psychotropic substances)
1.
Any measures taken pursuant to this Convention by Parties shall not be
less stringent than the provisions applicable to the eradication of illicit
cultivation of plants containing narcotic and psychotropic substances and to
the elimination of illicit demand for narcotic drugs and psychotropic
substances under the provisions of the 1961 Convention, the 1961 Convention as
amended and the 1971 Convention.
2.
Each Party shall take appropriate measures to prevent illicit
cultivation of and to eradicate plants containing narcotic or psychotropic
substances, such as opium poppy, coca bush and cannabis plants,
cultivated illicitly in its territory. The
measures adopted shall respect fundamental human rights and shall take
due account of traditional licit uses where there is historic evidence of such
use as well as the protection of the environment.
[...]
To
justify the legalization of possession of cannabis, some authors have defended
the interpretation that it was the intention of the Parties for the
prohibition on possession to be limited to possession for the purposes of
trafficking.([105])
In the view of those authors, simple possession of cannabis for
personal use was never intended to be covered.
To determine whether their interpretation is appropriate, the details
of the interpretation must be considered.
Briefly,
to justify possession of cannabis under the Conventions, these authors assert
that article 36 of the Single Convention, 1961, which creates the penal
offence of possession of cannabis, covers only possession for the purposes of
trafficking. All grounds for the
offences to which article 36 refers are directly related to the illicit drug
traffic. It also refers to
cultivation, production, manufacture, extraction, preparation, offering,
offering for sale, distribution, purchase, delivery, brokerage, dispatch,
dispatch in transit, transportation, importation and exportation of drugs
contrary to the provisions of the Convention.
In
arguing this interpretation, these authors also refer to the fact that the
third version of the draft Convention, i.e., the version that preceded the
version ultimately adopted, was divided into chapters, and that article 45 in
the third version (which corresponds to paragraph 36(1) of the Single
Convention, 1961) was part of a chapter clearly identified as referring to
offences in relation to illicit traffic.
In addition, article 36 appears between two articles dealing with
matters directly related to illicit traffic; article 35 is entitled “Action
against the illicit traffic,” and article 37 is entitled “Seizure and
Confiscation.” Accordingly, the
possession to which article 36 refers could only have been possession for the
purposes of trafficking; it is argued that this was the intention of the
Parties. The same argument
points to the Commentary of the UN Secretary-General on the Single Convention,
1961.([106])
However, in recounting these facts concerning the preparatory work, the
Commentary of the Secretary-General does not claim that this interpretation is
necessarily the right one; it simply gives one interpretation of this specific
provision of the Single Convention, 1961.([107])
Other
authors take the position that possession of cannabis, like that of any other
drug or psychotropic substance, must be made an offence by the Parties to the
Conventions.
In
1972, the Le Dain Commission stated that the expression “possession” in
article 36 of the Single Convention, 1961 had to include possession for
personal use.([108])
It also referred to article 33. The
Commission stated:
It
has generally been assumed that “possession” in article 36 includes
possession for use as well as possession for the purpose of trafficking.
This is a reasonable inference from the terms of article 4, which
obliges the parties “to limit exclusively to medical and scientific purposes
the production, manufacture, export, import, distribution of, trade in, use
and possession of drugs.” There
is also article 33, which provides that “The Parties shall not permit the
possession of drugs except under legal authority.”
[...] On the face of article 26 it would not be unreasonable to argue
that what is contemplated is possession for the purpose of trafficking rather
than possession for use, and that the requirements of the article are
satisfied if the former kind of possession is made a penal offence.
The prevailing view, however, is that the word “possession” in
article 36 includes simple possession for use.([109])
The Netherlands Ministers of Health, Welfare and Sports are also of the
view that: “if the Netherlands decided unilaterally to legalise the market
in cannabis and cannabis products … [it] would be incompatible with article
2, paragraphs 1 and 5, article 4, article 36 and article 49.”([110])
In New Zealand, the Drug Policy Forum Trust – which argues for
greater liberalization in the use of cannabis – acknowledges that the Single
Convention, 1961 and the Convention against Illicit Traffic require that
legislative provisions be enacted prohibiting the possession of cannabis for
personal use.([111])
The Trust believes article 33 of the Single
Convention, 1961 is clear and does not seem to be open to
interpretation.
It must not be forgotten that paragraph 3(2) of the Convention against
Illicit Traffic reiterates the Parties’ obligation to make the possession,
purchase and cultivation of narcotic drugs for personal consumption, contrary
to the Single Convention, 1961, a criminal offence.
This reminder, which appears in a Convention concluded more than 20
years after the Single Convention, 1961, does not seem to leave any doubt as
to the Parties’ intention.
Article 33 of the Single Convention, 1961 seems clear.
It prohibits the possession of drugs.
It remains to be determined whether this interpretation of the
Convention is justified. For that
purpose, a few comments must be made on the principles of the interpretation
of treaties in international law. Those
principles are codified in articles 31 and 32 of the
Vienna Convention on the Law of Treaties, which read as follows: ([112])
Article
31
(General rule of interpretation)
1.
A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose.
2.
The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
(a)
any agreement relating to
the treaty which was made between all the parties in connexion with the
conclusion of the treaty;
(b)
any instrument which was
made by one or more parties in connection with the conclusion of the treaty.
3.
There shall be taken into account, together with the context:
(a)
any subsequent agreement
between the parties regarding the interpretation of the treaty or the
application of its provisions;
(b)
any subsequent practice in
the application of the treaty which establishes the agreement of the parties
regarding its interpretation;
(c)
any relevant rules of
international law applicable in the relations between the parties.
4.
A special meaning shall be given to a term if it is established that
the parties so intended.
Article
32
(Supplementary means of interpretation)
Recourse
may be had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to section 31:
(a)
leaves the meaning ambiguous or obscure; or
(b)
leads to a result which is manifestly absurd or unreasonable.
Article 31 of the Vienna
Convention on the Law of Treaties establishes the basic principle that
applies to the interpretation of treaties.
The terms of a treaty must be understood according to their ordinary
meaning, in light of its object and purpose.
Agreements entered into in connection with the conclusion of the treaty
(paragraph 31(2)) and subsequent legal instruments relating to the
interpretation of the treaty or the application of its provisions (paragraph
31(3)) should also be considered. On
the other hand, a term will be given a special meaning if it is established
that this is what the parties intended (paragraph 31(4)).
Because there seem to have been no supplementary agreements made when
the Conventions were concluded, or any subsequent agreements regarding the
interpretation or application of the Conventions, any reference to paragraphs
31(2) and (3) in consideration of how to interpret the terms of the treaties
can be eliminated. The question
that remains is whether it can be established that the Parties’ intention
was to give a special meaning to certain terms (or to certain provisions of
the treaties), as set out in paragraph 31(4) of the Vienna
Convention on the Law of Treaties.
On the other hand, it is curious that these same authors seem to disregard article 33 of the Single Convention, 1961; this would appear clear, to say the least, with respect to the possession of drugs: “The Parties shall not permit the possession of drugs except under legal authority.” This article did not appear in the chapter dealing with offences in relation to illicit traffic in the third version of the Convention. Lastly, it should not be forgotten that under the Single Convention, 1961, cannabis is a narcotic drug on the same footing as opium, heroin or morphine, and is intended to be treated in the same manner.
The Commentary of the Secretary-General is a publication that comments
on each of the articles of the Single Convention, 1961.
It may provide explanations of the process whereby the provision in
question was adopted or the interpretation that Parties (and not the
Parties) give to the provision, or a “personal” interpretation of the
provision in question.
The Commentary was prepared in response to a request from the Economic
and Social Council. The
resolution of the Council reads as follows: “[r]equest the Secretary-General
to prepare a legal commentary on the Single Convention giving an
interpretation of the provisions of the Convention in the light of the
relevant conference proceedings and other material.”([113])
This resolution must be read bearing in mind article 32 of the Vienna
Convention on the Law of Treaties; that article deals with supplementary
means of interpretation. It is
easy to interpret the resolution as asking the Secretary-General to report on
the supplementary matters that might be used in interpreting the treaty: “in
the light of the relevant conference proceeding and other material.”
On the other hand, article 31 of the Vienna
Convention on the Law of Treaties does not take this approach where a
treaty needs to be interpreted. First,
the ordinary meaning of the provisions of the treaty is to be applied; if
there are difficulties, recourse may be had to supplementary means.
Moreover, the Commentary has no legal weight.
It was not adopted by the Parties to the Convention nor was it the
subject of a resolution of the United Nations or of any of its organs, such as
the Economic and Social Council. An
international court (or arbitration tribunal) could well interpret a provision
of the Convention in a way contrary to the Commentary.
That being said, one item in the Commentary mentioned earlier must be
clarified. The Commentary points
out that the Single Convention, 1961 is not divided into chapters like the
third version of the Convention on which the Parties worked; the justification
given for the disappearance of the chapters, however, seems quite weak.([114])
It is a principle of statutory interpretation, applicable to the
interpretation of treaties, that the legislature does not speak in order to
say nothing. If the legislature
amends a provision, it means that it wants the amendment to have a meaning.
Applying this principle to the disappearance of the chapter divisions
between the third and final versions of the Single Convention, 1961 implies
that disappearance must mean something. One
possible interpretation is that the Parties had agreed on this step in order
to ensure that the Convention could not be interpreted on the basis of those
divisions, and so that the prohibition on possession in article 36 could not
be limited to possession for the purposes of trafficking alone.
The only way to settle the debate definitively, as to whether
possession of cannabis (or another drug) must be made an offence by virtue of
one of the three Conventions, would be to obtain a decision on the matter from
the International Court of Justice. Articles
from each of the three Conventions – article 48 of the Single Convention,
1961; article 31 of the Convention on
Psychotropic Substances;
and article 32 of the Convention against Illicit Traffic – provide that any
dispute relating to the interpretation of these Conventions should be settled
by agreement between the Parties and, failing agreement, by the International
Court of Justice.
Even if the Single Convention, 1961 requires that possession of
cannabis be made an offence, it still allows the Parties latitude as to the
sanctions or penalties they impose. The
sanctions imposed must have a deterrent effect on the offender or any other
individual who might be tempted to commit the same offence. The sanction must
be determined on the basis of the seriousness of the offence.([115])
In less serious cases, the sanction may even be replaced by measures
for treatment, education, rehabilitation or social reintegration.([116])
The Conventions recognize, implicitly and explicitly,([117])
that imposing sanctions is a matter within the domestic law of the Parties.
Each Party may choose the approach that it considers most appropriate
to deal with the various situations that may arise.
Contrary to what some commentators believe, the possession or use of
cannabis in the Netherlands and Belgium has not been decriminalized; it is
still an offence. On the other
hand, the authorities of those countries have chosen to take a lax approach to
such offences; the use of cannabis is tolerated in clearly identified places.
The administration of justice within the territory of a Party is a matter within its exclusive jurisdiction. The state need account to no one. No international organization has any right to scrutinize the manner in which the Parties apply the legislative provisions they have enacted pursuant to the Conventions. They do not have to justify their decisions. At most, they could be criticized if their conduct were injurious to other Parties or harmful to the mutual cooperation in which they must engage.
The tolerance exhibited by the Netherlands and Belgium may be
criticized, but no other state or international body may interfere.
The authorities of those two countries seem to have chosen, for their
own reasons, not to enforce their legislation prohibiting the possession and
use of cannabis.
In accordance with the drug Conventions, Canada has enacted a
legislative measure prohibiting the possession of cannabis.([118])
An offender is liable to a maximum term of imprisonment of five years
less a day on indictment, and a possible maximum fine of $1,000, or a maximum
term of imprisonment of six months, or both, on summary conviction.([119])
In the case of possession of 1 gram or less of cannabis resin or 30
grams or less of cannabis
(marihuana), an offender, who would then be charged with a summary conviction
offence, would be liable to a maximum fine of $1,000, or a maximum term of
imprisonment of six months, or both.([120])
Thus, Canada, like other countries, has chosen to be less severe in the
case of simple possession of cannabis.
For people who favour the decriminalization of possession of cannabis for personal use, none of this is an acceptable position. As long as the drug Conventions are worded as they currently are, the Parties will have to maintain legislative provisions prohibiting the possession of cannabis for personal use. The Parties could choose to change this situation by adopting amendments to the Conventions to that effect.
Each of the three Conventions has provisions whereby they can be
amended.([121])
By following the process set out in the Conventions, a Party can propose
amendments to each of them. Briefly,
the Parties may choose to accept the proposed amendments and ratify them, the
effect of which would be to bring them into force within such time as the
Conventions provide. If only one
Party chooses not to ratify the proposed amendments, the Secretary-General
could convene a conference on the subject.
If this led to an agreement among the Parties to amend the Conventions
to permit possession of cannabis, the amendment would be in the form of a
protocol which, in order to come into force, would have to follow the process
for implementation and ratification described earlier, with respect to the
coming into force of an international treaty.
It must be noted that in one very specific case, the Convention against
Illicit Traffic authorizes the cultivation and use of narcotic drugs or
psychotropic substances apart from medical and scientific uses: traditional
licit use of these substances, where there is historic evidence of such use.([122])
This might refer to use in certain religious rites.
The fact that the addition of this kind of use must be supported by
historic evidence avoids the creation of new religions that could incorporate
the use of these substances in their rites, solely in order to circumvent the
general prohibition.([123])
Rehabilitation programs in which addicts receive doses of the drugs on
which they are dependent, or substitutes, are usually established and carried
out under medical supervision. Compliance
with this one formality (medical supervision) brings the use of drugs under
the heading of use for medical purposes, and should therefore bring these
programs into compliance with the undertakings given under the three
Conventions.
Although it may be surprising, a program that prescribes heroin for a
heroin addict is easier to justify under the three Conventions than is simple
possession of cannabis. The
reason is straightforward. Prescribing
heroin is a medical act, and the program that authorizes it is in fact a
treatment whose purpose is rehabilitation.
It should not be forgotten that medical or scientific supervision would
be an essential requirement (the condition sine
qua non) for the program in question to be legal.
C. Legal Weight of the Resolutions and Declarations of International Organizations
As mentioned earlier, the Commentary of the Secretary-General has no legal weight in international law. This assertion requires some explanation.
To have legal weight, the rules must have been accepted by the
international community. Acceptance
of rules is formal (express) when it is done by means of a treaty.
The Parties to a treaty agree on the rules that they intend to apply
among themselves. Those rules are
then set out in a document. It is
not the existence of the treaty that establishes the rule, but the voluntary
agreement of the Parties to accept it.
International organizations are bodies that are independent of their members, although the members participate in their activities and decisions. An international organization does not have the power to establish rules through resolutions and decisions. The decision-making assemblies of those organizations are independent of the member states. The resolutions they adopt and decisions they make are theirs alone. Those resolutions and decisions do not carry the weight of a treaty among the Parties, because the formal procedure required for concluding a treaty is lacking. For example, the participants in a decision have not been given the mandate to enter into a treaty by their own countries.
The resolutions and decisions are non-obligatory declarations for the
members of the organization, and at best may give them guidelines for their
conduct. Any measures taken by
the members on the basis of the resolutions or decisions are purely voluntary.
A resolution of an international organization may become an
international treaty if there are provisions for this.
This was the case for the International
Covenant on Economic, Social and Cultural Rights([124])
(Covenant on Economic Rights) and the International
Covenant on Civil and Political Rights([125])
(Covenant on Civil Rights). Articles 26 and 27 of the Covenant on Economic
Rights and articles 48 and 49 of the Covenant on Civil Rights provide for
procedures for ratification by the members of the United Nations and for the
formalities for coming into force. When
these procedures and formalities were completed, the two protocols became
international treaties that are binding on the states that ratified them.
Similarly, declarations by the participants at an international
conference are merely statements of principle that have no legal weight.
They serve only to guide the future work of the conference or
international organization under whose aegis they were adopted.
Accordingly, the resolutions and declarations adopted at the United
Nations Conference on Drugs in June 1998 are merely statements of principle.
They have no legal weight and serve only to guide the future work of
the participants in the conference.
Lastly, the Commentary of the Secretary-General, referred to above, was
probably written by staff at the United Nations Secretariat.
It was likely never submitted to the members for adoption or comment
before being published. Accordingly,
it carries even less weight than the resolutions and decisions of
international organizations.
As might be expected, the negotiation of international treaties is not
an easy task. In addition to
establishing means of attacking a common problem, it is necessary to take into
account the concerns of the various parties with respect to the subject at
issue. The Conventions on drugs
seem to blend national interests harmoniously with the need for cooperation in
the fight against illegal trafficking. States
continue to be free to impose sanctions on those who break their laws, and
cooperation mechanisms (judicial cooperation, extradition, etc.) seem to be
effective.
There is still room for improvement and modifications.
To effect any necessary changes, however, each Party must give evidence
of being in favour of them. Some
states are more reluctant than others to soften the laws dealing with personal
drug consumption. Those in favour
of more relaxed measures must arm themselves with patience and with evidence
from numerous studies in order to convince the more reluctant states of their
point of view.
If, in the face of the problem of drug use, these shifts in attitude
are possible in Canadian society, it seems likely that similar changes could
come about in other societies. Laws
evolve to reflect changes in the society that adopts them.
International standards will evolve as the international community
evolves, but time and effort must go into the process.
THE PROCEDURE FOR CONCLUDING, IMPLEMENTING, RATIFYING AND COMING INTO FORCE OF AN INTERNATIONAL TREATY IN CANADA
In Canada, the federal executive – for which the Governor in Council
is the decision-making body – is the authority with jurisdiction to make
binding commitments on behalf of Canada on the international scene.
On the other hand, a treaty does not become applicable in Canada simply
because it has been signed by Canada’s representative.
To sort out the complex process of concluding and implementing treaties
in Canada, this Appendix explains the various steps that must be taken in
order for an international treaty to come into force in Canada.
The three international Conventions on drugs examined in this paper are
the product of three conferences held under the aegis of the United Nations.
The conclusion of an international treaty is normally the result of an
international conference at which the signatory countries are represented by
officials of the relevant government departments, selected by the executive
branch of the government. For
instance, it would be logical to assume that in matters relating to drugs,
Health Canada and Justice Canada, in addition to Foreign Affairs, would be
involved and send representatives.
NEGOTIATING
AND CONCLUDING A TREATY
In order for there to be a treaty, there must be agreement (an
expression of intention) by the states to that effect.
To express its agreement, each state must delegate its duly instructed
representative (its plenipotentiary) to the conference and give that
representative powers to make binding commitments, to make agreements on its
behalf. The act of delegation by
Canada is known as conferring “full powers.”
Formally, it will normally take the form of an order of the Governor in
Council authorizing the Prime Minister, a minister or another Canadian
representative to participate in the negotiations (at the conference) and
ultimately to conclude and sign the treaty on behalf of Canada.
As mentioned above, in practice, when negotiations take place with a
view to concluding a treaty, a team of people will be working for Canada.
The Governor in Council receives periodic reports concerning the
progress of the negotiations and the likely content of the treaty.
When it is apparent that the treaty will be concluded, and the Governor
in Council is satisfied with the content of the treaty, the Governor in
Council will give the representative full powers.
The representative thereby acquires authority to sign the treaty on
behalf of Canada.
RATIFYING
AND IMPLEMENTING A TREATY
Merely signing the treaty, however, does not operate to bring the
treaty into force, let alone to bring it into force in Canada.
For that to occur, it must be ratified and implemented, if
implementation is required.
Ratification takes the form of an order of the Governor in Council
stating that Canada has completed the formalities of implementing the treaty
in Canada and that it intends to be bound by the terms of the treaty.
However, before the order is made, it must be ascertained that Canada
is in compliance with the obligations it undertook in the treaty.
The terms of a treaty do not apply directly in Canada.
The only body that is competent to make rules is the legislative
branch. If a treaty were to be
allowed to apply directly, this would amount to giving the executive the power
to make rules, by entering into a treaty, that would apply throughout the
territory of Canada. This is not
the case.
Implementation consists of all of the steps that are needed in order
for the treaty to apply in Canada. If
the Canadian legislation is not in conformity with the undertakings given in
the treaty, the legislative branch will have to make the necessary amendments
before the treaty can be ratified.
In Canada, before ratifying a treaty, the government should ensure that
Canada is capable of complying with the obligations undertaken in the treaty
and that it will in fact comply with those obligations.
It must then ensure that Canadian legislation does not contravene the
obligations undertaken, and if necessary obtain the appropriate legislative
amendments. As indicated above,
the three drug Conventions require that the signatory states enact legislation
consistent with the obligations undertaken by them in the Conventions.
Accordingly, the government could not ratify the Conventions in
question before the necessary legislation had been adopted, or at least before
it had ascertained that the legislation in force complied with the obligations
undertaken.(1)
Implementation of a treaty in Canadian domestic law occurs with this
step, by which the Canadian legislation is amended to comply with the
obligations undertaken in the treaty.
COMING
INTO FORCE OF THE TREATY
Conclusion of the treaty must be distinguished from its coming into
force. A treaty may be signed by
all the parties and still not be in force.
Modern treaties usually establish their own procedures for coming into
force. For example, paragraphs 1
and 2 of article 29 of the Convention against Illicit Traffic provide:
1.
This Convention shall enter into force on the ninetieth day after the
date of the deposit with the Secretary-General of the twentieth instrument of
ratification, acceptance, approval or accession by States or by Namibia,
represented by the Council for Namibia.
2.
For each State or for Namibia, represented by the Council for Namibia,
ratifying, accepting, approving or acceding to this Convention after the
deposit of the twentieth instrument of ratification, acceptance, approval or
accession, the Convention shall enter into force on the ninetieth day after
the date of the deposit of its instrument of ratification, acceptance,
approval or accession.
Thus, the coming into force of a treaty is based on the domestic
ratification, acceptance, approval or accession procedures of the signatories.
In order for the treaty to come into force, 20 signatory states must
have completed their domestic procedures (ratification, acceptance, approval
or accession) for implementing treaties and have notified the
Secretary-General of the United Nations that these formalities have been
completed. Although Canada signed
the Convention against Illicit Traffic at the time it was concluded, on 20
December 1988, it deposited its instrument of ratification with the UN
Secretary-General on 5 July 1990. Even
on that date, the treaty had not received the approval of 20 states, as it
came into force only on 11 November 1990.
In addition, for states that had not deposited their instruments of
ratification, acceptance, approval or accession to the Convention on the date
it came into force, it would come into force for them only 90 days after that
instrument was deposited. The
date on which a treaty comes into force for a state is crucial because it
determines the date as of which the state is bound by the treaty.
(1)
In fields under provincial legislative jurisdiction, the Canadian
government must secure the participation of the provinces so that their
legislation will comply with the obligations undertaken.
([1])
Single
Convention on Narcotic Drugs, 1961,
Canadian Treaty Series
1964/30, amended by the Protocol amending the Single Convention on
Narcotic Drugs, 1961, Canadian
Treaty Series 1976/48. The
Single Convention came into force for Canada on 13 December 1964, while the
Protocol came into force on 4 September 1976.
([2])
Convention on Psychotropic
Substances, Canadian Treaty
Series 1988/35. This
Convention came into force in Canada on 9 December 1988.
([3])
Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, Canadian
Treaty Series 1990/42. This
Convention came into force in Canada on 11 November 1990.
([4])
Controlled
Drugs and Substances Act, S.C. 1996, c. 19.
([5])
The legislative branch includes both Parliament and the provincial
legislative assemblies, acting within their respective spheres of
jurisdiction.
([6])
All the laws and regulations in force in Canada are rules.
In the case of regulations, the rule is made by a body which has been
given authority to make it, pursuant to a legislative provision.
([7])
A legislative measure adopted by Parliament to implement a treaty but
within the jurisdiction of a province or contrary to the Charter, could be
declared by a court to be unconstitutional; this would put the Government of
Canada in default of the terms of the treaty.
([8])
S.C. 1996, Chapter 19. For
a description of this Act, see: Jane
Allain, Bill C-8: Controlled Drugs
and Substances Act, Ottawa, Parliamentary Research Branch, Library of
Parliament, May 1997.
([9])
See Order Fixing May 14, 1997
as the Date of the Coming into Force of the Act, TR/97-47, Canada
Gazette Part II, Vol. 131, No. 10, May 14, 1997, p. 1502.
([10])
Article 44 of the Single Convention, 1961 reads as follows:
Article
44.
Termination
of previous international treaties.
1.
The provisions of this Convention, upon its coming into force, shall, as
between Parties hereto, terminate and replace the provisions of the
following treaties:
a)
International Opium Convention, signed at The Hague on 23 January 1912;
b)
Agreement concerning the Manufacture of, Internal Trade in and Use of
Prepared Opium, signed at Geneva on 11 February 1925;
c)
International Opium Convention, signed at Geneva on 19 February 1925;
d)
Convention for Limiting the Manufacture and Regulating the Distribution of
Narcotic Drugs, signed at Geneva on 13 July 1931;
e)
Agreement for the Control of Opium Smoking in the Far East, signed at
Bangkok on 27 November 1931;
f)
Protocol signed at Lake Success on 11 December 1946, amending the
Agreements, Conventions and Protocols on Narcotic Drugs concluded at The
Hague on 23 January 1912, at Geneva on 11 February 1925, and 19 February
1925 and 13 July 1931, at Bangkok on 27 November 1931 and at Geneva on 26 June
1936, except as it affects the last-named Convention;
g)
The Conventions and Agreements referred to in sub-paragraphs a to e as
amended by the Protocol of 1946 referred to in sub-paragraph f;
h)
Protocol signed at Paris on 19 November 1948 Bringing under International
Control Drugs outside the Scope of the Convention of 13 July 1931 for
Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs,
as amended by the Protocol signed at Lake Success on 11 December 1946;
i)
Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the
Production of, International and Wholesale Trade in, and Use of Opium,
signed at New York on 23 June 1953, should that Protocol have come into
force.
2.
Upon the coming into force of this Convention, article 9 of the Convention
for the suppression of the Illicit Traffic in Dangerous Drugs, signed at
Geneva on 26 June 1936, shall, between the Parties thereto which are also
Parties to this Convention, be terminated, and shall be replaced by
paragraph 2b of article 36 of this Convention; provided that such a Party
may by notification to the Secretary‑General continue in force the
said article 9.
([11])
Protocol amending the Single
Convention on Narcotic Drugs, 1961,
Canadian Treaty Series 1976/48.
([12])
In its most recent annual report (1997), the International Narcotics
Control Board (INCB) notes that 12 countries that ratified the Single
Convention, 1961 have not yet ratified the Protocol thereto.
That does not prevent the Protocol from coming into force on the
international scene and applying to the countries that have ratified it.
On the other hand, the Protocol (and the amendments it makes to the
Single Convention, 1961) cannot apply in the countries that have not
ratified it. See INCB, Report
of the International Narcotics Control Board for 1997, Publications of
the United Nations, Vienna, Chapter II (available on the Internet at the
following address:
http://undcp.or.at/incb/AR/f/1997/index.htm).
([13])
The United Nations is responsible for the expenses of the Commission
and the Board. See article 6 of
the Single Convention, 1961.
([14])
Single Convention, 1961, article 12.
([16])
Ibid., paragraph 12(3).
([17])
Ibid., paragraph 14(1).
([18])
Ibid., paragraph 14(3).
([19])
Ibid., paragraph 15(1).
([20])
See below the section on specific aspects of the Conventions.
([21])
On this point, article 39 of the Convention reads as follows:
“Notwithstanding
anything contained in this Convention, a Party shall not be, or be deemed to
be, precluded from adopting measures of control more strict or severe than
those provided by this Convention and in particular from requiring that
preparations in Schedule III or drugs in Schedule II be subject to all or
such of the measures of control applicable to drugs in Schedule I as in its
opinion is necessary or desirable for the protection of the public health
and welfare.”
([22])
Single Convention, 1961, article 2.
([25])
Ibid., paragraphs 2(3) and
(4).
([26])
Ibid., paragraph 2(5).
Cannabis appears in Schedule IV alongside morphine and heroin.
([27])
Ibid., paragraphs 2(6) and
(7).
([28])
The
Single Convention on Narcotic Drugs, 1961 does not specify the points
that the Commission must take into account in making its decision, but
presumably it will decide after reviewing the request for the change and the
comments made thereon by the states.
([34])
Ibid., articles 23 and 28.
([45])
Convention on Psychotropic Substances, article 2.
([49])
Ibid., articles 7, 8 and
11.
([56])
Ibid., articles 21 and 22.
([57])
Convention against Illicit Traffic, article 3.
([59])
Ibid., subparagraph
3(4)(a).
([60])
Ibid., subparagraph
3(4)(b).
([61])
Ibid., subparagraph
3(4)(c). “Notwithstanding the
preceding subparagraphs, in appropriate cases of a minor nature, the Parties
may provide, as alternatives to conviction or punishment, measures such as
education, rehabilitation or social reintegration, as well as, when the
offender is a drug abuser, treatment and aftercare.”
([62])
Ibid., subparagraph
3(4)(d). “The Parties may
provide, either as an alternative to conviction or punishment or in addition
to conviction or punishment of an offence established in accordance with
paragraph 2 of this article, measures for the treatment, education,
aftercare, rehabilitation or social reintegration of the offender.”
([66])
Ibid., articles 4 and 5.
([67])
Ibid., articles 6 to 11.
([68])
Ibid., paragraph 12(1).
([69])
Ibid., paragraphs 12(2) to
(7).
([70])
Ibid., paragraph 14(1).
([71])
Ibid., paragraph 14(2).
([72])
Ibid., paragraph 14(3).
([73])
Ibid., paragraph 14(4).
([76])
Ibid., articles 17, 18 and
19.
([77])
Ibid., articles 20 and 21.
([78])
Ibid., articles 22 and 23.
([80])
For a complete description of this legislation, see: Jane Allain, Bill
C-8: Controlled Drugs and Substances Act, Ottawa, Parliamentary Research
Branch, Library of Parliament, May 1997.
([81])
Generally speaking, Schedule I to the Act reiterates the lists of
drugs in the Single Convention, 1961 (except for cannabis, which is in
Schedule II), Schedule III reiterates the lists of psychotropic substances
in the Convention on Psychotropic Substances, and Schedule VI reiterates the
lists of precursors in the Convention against Illicit Traffic.
([82])
Controlled Drugs and
Substances Act, sections 4 to 10.
([83])
Ibid., sections 11 to 23.
([84])
Ibid., sections 24 to 29.
([85])
Ibid., sections 30 to 32.
([86])
Ibid., sections 33 to 43.
([87])
Ibid., sections 44 to 60.
([89])
Ibid., section 55(1)(a).
([90])
Ibid., sections 55(1)(c)
and (e).
([91])
Ibid., section 55(1)(j).
([92])
Ibid., section 55(1)(l).
([93])
Ibid., section 55(1)(m).
([95])
Ibid., paragraph 55(1)(z).
The
Regulations Exempting Certain Precursors and Controlled Substances from the
Application of the Controlled Drugs and Substances Act (SOR/97-229) were
made under this provision.
([96])
Narcotic Control Regulations,
C.R.C., c.1041, as amended.
([97])
Controlled Drugs and
Substances (Police Enforcement) Regulations, SOR/97-234.
([98])
Regulations Exempting Certain
Precursors and Controlled Substances from the Application of the Controlled
Drugs and Substances Act, SOR/97-229.
([99])
More specifically, subparagraph 3(1)(c) and paragraph 3(2) of the
Convention against Illicit Traffic.
([100])
Canadian Charter of Rights and
Freedoms, section 8.
([105])
United States, National Commission on Marihuana and Drug Abuse, Marihuana
– A Signal of Misunderstanding, Washington, 1972.
A. Noll, “Drug Abuse and Penal Provisions of the International Drug
Control Treaties,” Bulletin on
Narcotics, Vol. XXIX, No. 4, October/December 1977, pp. 41-57.
South Australia, Royal Commission into the Non-Medical Use of Drugs, Cannabis:
A Discussion Paper, Adelaide, 1978.
These three references are cited in Commonwealth of Australia, Legislative
Options for Cannabis Use in Australia, Sydney, 1994, Chapter 3.
That document is available on the Internet at the following address:
http://www.health.gov.au/pubs/drug/cannabis/cannabis.htm
([106])
Office of the UN Secretary-General, Commentary
on the Single Convention on Narcotic Drugs,
1961, Geneva, 1973.
([107])
The relevant passage of the Commentary of the Secretary-General reads
as follows:
Article 45 of the Third Draft, which serves as the working document
of the Plenipotentiary Conference, enumerated in its paragraph 1,
subparagraph (a) “possession” among the actions for which punishment
would be required. This
paragraph is identical with the first part of paragraph 1 of article 36 of
the Single Convention, dealing with “possession” as one of the
punishable offences. Article 45
of the Third Draft is included in chapter IX, headed “Measures against
Illicit Traffickers.” This
would appear to support the opinion of those who believe that only
possession for distribution, and not that for personal consumption, is a
punishable offence under article 36 of the Single Convention.
The Draft’s division into chapters was not taken over by the Single
Convention; this was the reason why the chapter heading just mentioned was
deleted, along with all the other chapter headings.
Article 36 is still in that part of the Single Convention which deals
with the illicit traffic. It is
preceded by article 35, entitled “Action against the Illicit Traffic,”
and followed by article 37, entitled “Seizure and Confiscation.”
(p. 112 of the Commentary)
([108])
Commission of Inquiry into the Non-Medical Use of Drugs (Gérald Le
Dain, Chairman), Cannabis – Report, Ottawa, 1972.
([110])
Netherlands, Ministries of Health, Welfare and Sports, Drug
Policy in the Netherlands – Continuity and Change, Annex III.
This document is available on the Internet at the following address: http://nederland.drugtext.nl/vws/drugnota/0/drugall.htm
([111])
Drug Policy Forum Trust, Alternative
Systems of Cannabis Control in New Zealand – A Discussion Paper, July
1997. Drug Policy Forum Trust, New
Zealand Should Regulate and Tax Cannabis Commerce – Final Report, 30
March 1998. These documents are
available on the Internet at the following addresses, respectively:
http://www.nzdf.org.nz/fulltext.htm
and http://www.nzdf.org.nz/1998.htm
([112])
Vienna Convention on the Law
of Treaties, Canadian Treaty Series 1980/37.
([113])
See Resolution 914 (XXXIV) D of the Economic and Social Council, 3
August 1962.
([114])
See the passage from the Commentary quoted in footnote 107.
([115])
Single Convention, 1961,
subparagraph 36(1)(a); Convention against Illicit Traffic, paragraph 3(6).
([116])
Single Convention, 1961,
subparagraph 36(1)(b).
([117])
Convention against Illicit
Traffic, paragraph 3(11).
([118])
Controlled Drugs and
Substances Act, section 4(1).
([119])
Ibid., section 4(4).
If a repeat offender is prosecuted for an offence punishable on
summary conviction, the offender will be liable to a maximum fine of $2,000
and a maximum term of imprisonment of one year, or both.
([120])
Ibid., paragraph 4(5).
([121])
Single Convention, 1961,
article 47. Convention
on Psychotropic Substances, article 30.
Convention against Illicit Traffic, article 31.
([122])
Convention against Illicit
Traffic, paragraph 14(2).
([123])
When it ratified the Convention
on Psychotropic Substances, Canada attached the following reservation to
its ratification instrument:
“Whereas Canada is desirous of acceding to the Convention
on Psychotropic Substances,
1971, and whereas
Canada’s population includes certain small clearly determined groups who
use in magical and religious rites certain psychotropic substances of plant
origin included in the Schedules to the said Convention, and whereas the
said substances occur in plants which grow in North America but not in
Canada, a reservation of any present or future application, if any, of the
provisions of the said Convention to peyote is hereby made pursuant to
article 32, paragraph 3 of the Convention.”
([124])
International Covenant on
Economic, Social and Cultural Rights, Canadian Treaty Series 1976/46.
Resolution of the United Nations of 16 December 1966.