January 5, 2017 1:25 pm
Updated: January 5, 2017 5:15 pm

Why a 56-year-old UN treaty stands between you and legal pot

If Canada misses a July 1 deadline, we can’t legalize pot until January of 2019.

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This story initially said that other countries’ parliaments would have to approve a special exemption for Canada to legalize cannabis; other countries’ governments could do this without parliamentary approval. The edited paragraph is here

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Liberal Prime Minister Justin Trudeau’s government was elected on a platform of legalizing marijuana. Since the election, the Liberals have been moving toward actually doing it. Last last year, a task force reported on the practicalities of legal pot, and legislation is expected this year.

But there’s an obstacle, which the federal government hasn’t said how it plans to deal with: three international treaties, one dating from 1961, that commit Canada to keep weed illegal.

Over the years, Canada has signed several international drug control treaties, which commit us and dozens of other countries to banning a long list of drugs, including marijuana: the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances.

The treaties, and the government’s cannabis legalization project, are on a collision course. How to solve the problem?

There are four options, some more workable than others:

Ignore the issue and legalize pot anyway. 

That’s a terrible idea that would unleash much bigger problems, explains University of Ottawa law professor Steven Hoffman.

“Canadians might not think that it’s such a big deal to break the UN drug control treaties, but we certainly care when other countries break other treaties, like treaties against genocide or human rights violations or nuclear non-proliferation,” he says. “Canadians should know that we can’t just pick and choose which treaties to follow, without encouraging other countries to do the same.”

“It’s a real international legal obligation that we have for ourselves here. We can’t just easily get out of it or forget about it.”

That’s what happened in the United States, however, which has signed all the same treaties that we did: although the U.S. maintains a federal ban on marijuana, it also takes a lenient view of enforcement in states that have legalized pot including Colorado.

READ: Why Donald Trump could be the Canadian marijuana industry’s secret weapon

Asking to be a special snowflake.

In theory, Canada can ask to be an exception to the parts of the treaties that relate to marijuana, while agreeing to be subject to the other parts.

But it would be a diplomatic nightmare in practice, with dozens of other countries being asked to approve the measure (a ‘reservation’).

“Our government would be formally requesting that other countries approve that even though the treaty says that we need to make this product illegal in Canada, that they’re giving us an exception,” Hoffman says. “But it’s very unlikely to get that.”

“Basically, it wouldn’t happen.”

WATCH: ‘A very bold move’: Halifax store’s decision to sell marijuana receiving lots of support

READ: Nine questions Parliament will have to answer before we legalize marijuana

Withdrawing from the treaties. 

This is probably the simplest option in the long run. All three treaties have rules about withdrawing from, or ‘denouncing’ them, and Canada is free to do this.

“They’re old, they’re outdated, they’re not reflective of current science,” Hoffman says. “It’s not like we would be withdrawing from the Universal Declaration of Human Rights. We’d be withdrawing from outdated things that probably should have been revised long ago, but have been difficult to change, given that countries around the world do not have a consensus on the best way of addressing drugs.”

“There are some countries where they kill people who are trafficking drugs.”

A country can leave the treaties by notifying the Secretary-General of the UN in writing.

But it doesn’t take effect right away. There are deadlines that will affect Canada’s plans to legalize marijuana:

  • A country leaves the 1961 and 1971 treaties: if notice is given before July 1, on the following January 1; if notice is given after July 1, on January 1 of the year after that. So if we denounced the 1961 and 1971 treaties on July 2 of this year, we’d still be subject to them until January 1, 2019.
  • A country leaves the 1988 treaty one year to the day after the Secretary-General gets the notification.

WATCH: Prime Minister Justin Trudeau answers a question from B.C. marijuana activist Dana Larsen about why he is a proponent of legalizing marijuana, but does not favour decriminalization.

READ: Don’t legalize pot before figuring out how to deal with stoned drivers: poll

Amending the Constitution.

There’s a strange loophole in the treaties: if a right to use a drug is in a country’s constitution, that takes precedence.

This is why Bolivia put a right to chew coca leaves, an ancient practice in that society, in their constitution.

So in theory, if Ottawa and the provinces put a clause in Canada’s constitution protecting marijuana rights, the treaty problem goes away.

“As an international lawyer, if Canada revised its constitution to give Canadians the right to possess, use and purchase marijuana, that would fully address the international legal obligations under the UN drug control treaties,” Hoffman says.

(Major revisions to the constitution, like the Charlottetown Accords or Meech Lake Accords, failed after years of brain-numbing negotiation, and for better or worse Canadians have tended to think of the constitution as beyond amendment. But there have been 11 successful constitutional amendments since 1982 on more minor issues.)

“I just don’t think it’s feasible,” Hoffman says.

“Just thinking as a Canadian, there are other issues with our constitution. Is this one issue important enough that we should be reopening it? We have so many big challenges, like indigenous rights, the way we govern and the way we’ve divided up powers between our governments. It seems funny that the one issue we would allow ourselves to reopen our constitution over would be this one.”


We asked Global Affairs Minister Stephane Dion’s office how the government planned to handle the treaty issue, and how the deadlines in the treaties affect a timeline toward legalization.

“The Government will be examining the recommendations from the task force report, as well as our international commitments,” spokesperson Chantal Gagnon wrote in an e-mail. “At this time, however, it would be premature to comment on any specifics.”

Legislation legalizing cannabis would be introduced in the spring, and would take effect “after being passed by Parliament and once regulations have been developed,” she wrote.

The marijuana task force’s report mentioned the treaty issue, but wrote that suggesting how to solve it fell outside its mandate.

 

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