Federal Government Still Navigating UN Treaty Obligations

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Canada is a party to three international drug control treaties related to international drug control, including: 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.  These treaties commit Canada’s federal government to keeping marijuana illegal. In order to legalize cannabis the federal government will have to deal with its UN Treaty obligations.  The federal government still has not commented on how it will deal with these treaties.  There have been numerous speculations on how the federal government will approach these treaties, including: withdrawing from the treaties, or amending the country’s constitution.

A country may withdraw from the treaties by notifying the Secretary-General of the UN in writing. There is a time-lag between the Secretary-General’s receipt of the notice and when the withdrawal is processed.

For the 1961 Single Convention on Narcotic Drugs, if a country provides notice of their intention to leave the treaty prior to July 1 of a given year, withdrawal is effective the following January. If notice is given after July 1, withdrawal is delayed to the January in the year after that.

The same timelines apply for the 1971 treaty, the Convention on Psychotropic Substances.

The practical effect of this is as follows: if Canada does, in fact, decide to withdraw from the treaties and does not give notice by July 1, 2017, the withdrawal will not be processed until January 1, 2019, at the earliest. If this is the case, a delay in the roll-out of the recreational cannabis market is inevitable.

A country’s withdrawal from the 1988 treaty, the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, is processed differently. Withdrawal occurs one year and one day after the Secretary-General receives the written notice.

The treaties provide an exception for countries with respect to the legal use of drugs. If a right to use a drug is embedded in a country’s constitution, it takes precedence over the UN treaties.  This is why speculation has come about where an option may be to amend the Canadian constitution.

Amending the constitution is, in our opinion, highly unlikely. The topic of amending the constitution is hotly contested in general, and a revision to the constitution of this nature may open the floodgates for other amendment arguments.

On March 7, 2017, during the Senate Question Period, Crystia Freeland, Minister of Foreign Affairs, responded to a question about violating international treaties by legalizing marijuana. Claude Carignan, Leader of the Opposition, posed the question:

 

“…Minister, does the government intend to withdraw from these treaties or instead renegotiate Canada’s continued involvement in this area in one form or another? Also, what repercussions will this decision have on our relationship with the United States, particularly when it comes to Canadian citizens at the border? Finally, once marijuana is legalized, how will your government ensure that cross-border traffic, on which a great many Canadians and businesses rely, will flow uninterrupted?”

Ms. Freeland did not commit to a concrete answer. Instead, she said that the Department of Foreign Affairs is committed to working with Health Canada as well as the Department of Justice on issues related to the government’s plan to legalize marijuana and the impact of that decision on the international treaties.  She noted that they plan to discuss directly with partners, including Uruguay, which has legalized cannabis federally, and the United States, which has legalized recreational cannabis in certain states.

Ms. Freeland recognized that Canada’s government has international eyes awaiting its next move – she stated, “Canada is not the only country interested in dealing with these issues as efficiently as possible. Many of our allies are very interested in Canada’s experience. That is one reason why our government is absolutely certain, as we stated in the election campaign, that public health and the health of our children are best served by legalizing marijuana so that children can’t get it. We believe that this should be done slowly and carefully, not hastily.”

It is clear that the Federal government is still navigating its UN treaty obligations and is not  commenting on specifics of any plan as of yet. With legislation promised by the spring and with deadlines related to withdrawal from the treaties affecting the potential timeline towards legalization, we expect a statement regarding the treaty issue will be released soon.

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