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Canada Seems Ready to Break Three International Treaties to Legalize Cannabis

February 27, 2018
(Susan Walsh/AP)
With the legalization of recreational cannabis just around the corner, Canadians are talking a lot about sales and distribution, impaired driving, and the impact on children—but little has been said about international law.

If all goes according to the plan laid out by Prime Minister Justin Trudeau, the Cannabis Act will place Canada in violation of three UN treaties. The Single Convention on Narcotic Drugs (1961), the Convention on Psychotropic Substances (1971) and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) all require countries to ban the possession and production of recreational cannabis.

Some legal experts believe Canada should abide by the terms of the treaties, even if it means delaying legalization.

To withdraw from the treaties, a country must give the UN notification a year in advance—so Ottawa would have had to give notice last July in order to withdraw from the treaties before July 2018, the date the Trudeau government has set for legalization of recreational cannabis.

Some legal experts believe Canada should abide by the terms of the treaties, even if it means delaying legalization to allow enough time for withdrawal, while others say that’s not necessary. But all agree the federal government needs to address this issue — something it hasn’t yet done.

Steven Hoffman, a professor in the Faculty of Health and Osgoode Hall Law School at York University in Toronto, is an advocate for the legalization of recreational cannabis, believing its criminalization has had negative legal and health consequences. He also believes the UN treaties are outdated and “not reflective of current science.” But he feels strongly that Canada shouldn’t violate them.

“If we undermine international law it takes away from our credibility as a country and (makes it) more difficult to criticize other countries for violating international law.”
law professor Steven Hoffman

“International law is not an esoteric doctrine. It’s not faraway thing that only nerdy academics think about,” he told Leafly. “It governs international interaction at almost every level, from mailing holiday cards to the functioning of the internet. If we undermine international law it takes away from our credibility as a country—and it becomes politically more difficult to criticize other countries for violating international law.”

Canada should legalize recreational cannabis without violating international law, he said, which would require Ottawa to withdraw from the treaties then wait a year for legalization. He added that Canada could withdraw from the treaties and rejoin after legalization, declaring that it accepts the general concepts of the treaties except in their application to cannabis.

But Hoffman dismissed some other alternatives to withdrawal.

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The treaties stipulate that countries aren’t required to implement provisions that violate their constitutions, so amending the Canadian Charter of Rights and Freedoms to include a right to consume cannabis would solve the problem. But Hoffman feels the process of changing the charter would be arduous to the point of being untenable.

Under the rules of the treaties, cannabis could be made available for “scientific purposes.” The government could ramp up its funding of research projects, but that might not be enough to sway international bodies—the Trudeau government has never cited scientific research as its motivation for legalizing recreational cannabis.

John Walsh, director for drug policy at Washington Office on Latin America (an American NGO) and some other pundits have floated the idea of reaching a separate agreement on the cannabis issue with other like-minded countries that have signed the treaties. Hoffman acknowledges that the Vienna Convention allows for this, but says those agreements are intended to tighten treaty restrictions, not loosen them.

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Walsh and others also say Canada could remain a signatory to the treaties while publicly acknowledging that its legalization of recreational cannabis will result in a period of “respectful non-compliance” with some treaty obligations. They say this approach would display the appropriate regard for international law. Respectful or not, this approach is a violation of international law and not advisable, says Hoffman.

‘No Need for Hasty Decisions’

Ultimately, the consequences of violating the treaties are not dire, according to Walsh and four other political pundits who collaborated on an opinion piece for the website ipolitics. They point out that Uruguay, the first country to regulate cannabis, has violated international drug laws and has suffered nothing more than a mention in the annual reports of an organization that monitors the implementation of UN drug conventions. The US states that have legalized recreational cannabis have had a similar experience.

The Trudeau government certainly doesn’t seem to be in a rush to address the matter. It has said next to nothing about it.

“The bottom line is that Canada ultimately will need to choose a path forward with regard to cannabis regulation and the drug treaties,” Walsh and the others wrote. “But there is no need for hasty decisions and plenty of time for Canada to evaluate its options—and act when the time is ripe.”

The Trudeau government certainly doesn’t seem to be in a rush to address the matter. It has said next to nothing about it.

Meanwhile, opposition politicians are demanding action. “The government has a position to legalize [cannabis] which contravenes the terms of those three treaties and so the government should be upfront and respect the signatories to the treaty and withdraw,” Conservative foreign affairs critic Peter Kent said in June. “We would condemn the government allowing Canada to go into violation of the treaties.

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“The bottom line is, we believe Canada … should be principled with all of its dealings with the international organizations with which we have treaties and agreements,” he said.

Hoffman shares that view. “We are increasingly depending on international law,” he told Leafly. “It’s weak, but it’s the strongest one we have.”

Randi Druzin's Bio Image

Randi Druzin

Randi Druzin is an author and journalist in Toronto. She has worked at several major media outlets, including the National Post and the CBC, and has written for dozens of publications, such as The New York Times, Time magazine, ESPN The Magazine, and The Globe and Mail.

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  • Dante-the-cat

    That was one of the first issues that was raised right in the beginning as I recall, so I doubt the law makers involved let it slip by them. I doubt other nations will break their trade policies with us just because we haven’t amended our trade laws yet.

  • Derwood Wilkinson

    JT breaks promises/commitments to Canadians all the time!!! The entire world already knows that we have a attention-seeking clown running our country. So if he breaks these treaty commitments, does it really matter in the overall scheme of things??

    • Dante-the-cat

      Don’t worry. If Sheer gets in he’ll repeal legalization.

      • Derwood Wilkinson

        If Scheer puts that (repeal legalitzation) into his election platform, he is guaranteeing that the Conservatives will be defeated in the next election!

        The legalization of marijuana is the only reason that JT got elected in the first place. The Conservatives would be wiser to get their Senators to give Bill C-45 approval in the Senate and get it implemented. Once the legalization is done and in place, there is no need for Canadians to vote for JT and the Liberals again.

        If the Conservative Senators put forth all kinds of amendments to Bill C-45 and force a lengthy delay in legalization of marijuana, and/or if the Conservative Party states that they will outlaw it again if elected, they can say good-bye to any dreams of being elected to replace the Liberals next fall.

    • DCBC

      Yeah well he’s a billion times better than Harper or TRUMP!

  • badforu

    The UN is a joke an i doubt it will be around much longer, an the underlying issue here is money, an money wins out everytime.

  • lovingc

    Since these things originated from the US what does it mater? Trump is to stupid to see that he is a goner much less worry about a treaty that doesn’t have to do with money!

  • This article repeats the common error of assuming that cannabis is covered by all three UN treaties on drugs. However only the Single Convention on Narcotic Drugs in 1962 specifically deals with the cannabis plant. The second convention deals exclusively with manufactured drugs (including synthetic THC) but says nothing about plant-based cannabis products. The third convention does not make any drugs illegal; it deals with the international trafficking of drugs and specifies the steps countries must take in order control the international black market in drugs. These steps are about sharing financial information on suspects, extradition, and other matters of international cooperation.

    • Also the first treaty is riddled with loopholes and completely devoid of any penalties for noncompliance, rendering it mostly harmless.

      • Dave Schmader

        Thanks for weighing in, here’s a response from Steve Hoffman, the international law expert quoted in the piece: “For the second treaty, the reason it applies to Canada is because Canada’s proposed legislation legalizes/regulates synthetic THC too. For the third treaty, the commentator is wrong. Cannabis falls under this treaty and there are provisions beyond those technicalities that he/she lists. I have a law journal article coming out very soon, which runs through the treaty provisions in great detail as they relate to cannabis legalization.”

        • I will be eagerly looking forward to Mr. Hoffman’s upcoming article.

  • Grow Your Own

    The UN treaties cant be enforced, just useless talk from a Useless Organization that needs to be Disbanded ASAP.

  • farmerlion

    The only one I hear crying is the US government. No doubt that the treaty was going to be another of our delay tactics. Now the president has been set by a progressive thinking nation. Good for you Canada! God bless you , lead the world in our place . We will no doubt point fingers and complain about you wisdom and success . Maybe we could barrow money from you to pay for our school’s . I’m sure your job markets and economy will also blossom. Enjoy your freedom and prosperity. Peace