Appendix A

A series of multilateral treaties, or "conventions," has evolved during this century as part of an international co-operative response to the widespread use of certain drugs which are believed to be harmful. The most recent treaties, the Single Convention on Narcotic Drugs, 1961 and the Convention on Psychotropic Substances, 1971, require, among other things, that party states severely restrict the production, distribution and use of various narcotics and other psychotropes, including certain forms of cannabis. The deliberate vagueness of some critical treaty provisions and the discretion permitted each party allow for a considerable variety of cannabis control regimes. As one official of the United Nations Division of Narcotic Drugs has recently written: "the treaties are much more subtle and flexible than sometimes interpreted." (Noll, 1977:44)

Some Single Convention obligations are thought to limit the scope of domestic legislative options, but it is generally recognized that where international law cannot be reconciled to Canadian law, the domestic legislation prevails. A recent example concerning the International Declaration of Human Rights occurred in the 1971 case of Gagnon and Vallières v. The Queen (14 C.R.N.S. 321). The Quebec Court of Appeal said that "any alleged violation by Canada of this Declaration may influence Canada's international relations with other signatories to the Declaration, but such violation cannot, by sanctions, or otherwise, affect the sovereign legislative power of Parliament over matters falling within its jurisdiction." Canada, then, is free to derogate from its treaty obligations, although it may risk international censure if it does.

Canada's international obligations with respect to the domestic control of cannabis products are chiefly determined by the provisions of the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol. Substances governed by the Single Convention are listed in four schedules. Only those in Schedules I and II are defined as "drugs" for purposes of the Convention. Drugs listed in Schedule I, including "cannabis," "cannabis resin" (hashish), and "extracts and tinctures of cannabis," are subject to the most stringent general control measures. These measures include import, export, manufacture and domestic distribution, licensing, annual reporting of estimated and actual medical or scientific requirements, as well as penal provisions related to certain unsanctioned drug-related conduct. Schedule II drugs are similarly controlled, except that medical prescriptions need not be required for their dispensing. The "preparations" listed in Schedule III are subject to still fewer controls, as annual estimates and certain international trade provisions do not apply.

Schedule IV is intended to include those Schedule I drugs that the World Health Organization determines to be particularly liable to abuse and productive of ill effects that are not offset by substantial and unique therapeutic advantages. (See, Art 3, para. 5) Only six of the over ninety drugs in Schedule I are also included in Schedule IV. Each party to the Convention is invited to apply any additional "special measures of control "which in its opinion are necessary having regard to the particularly dangerous properties" of these Schedule IV drugs. (Art. 2, s-para. 5(a)) Such "special measures" may extend to prohibition even for medical purposes. Cannabis and cannabis resin are included in Schedule IV. Heroin is also included, but such Schedule I drugs as cocaine, opium and thebaine are not.

The Single Convention defines "cannabis" as "the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted." (Art. 1, s-para. 1(b)) It is generally accepted that this definition permits the legalization of the leaves of the cannabis plant, provided that they are not accompanied by the flowering or fruiting tops. However, uncertainty arises by virtue of paragraph 3 of Article 28 which requires parties to the Convention to "adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant." In summary, it appears that parties are not obliged to prohibit the production, distribution and use of the leaves (since they are not "drugs," as defined the Convention), although they must take "necessary," although unspecified, measures to prevent their misuse and diversion to the illicit trade.

THC and its isomers are not governed by the Single Convention; instead they are included, along with hallucinogens such as LSD, in Schedule I of the Convention on Psychotropic Substances, 1971 (COPS). The control obligations for THC stipulated in COPS are comparable to those for cannabis, cannabis resin, and extracts and tinctures of cannabis in the Single Convention. Canada is not yet a party to the COPS, but accession to it is under consideration.

The penal obligations: Article 36 and the meaning of "possession." The primary object of the Single Convention is to restrict, to the extent possible, the trade in and use of controlled drugs to exclusively medical and scientific purposes. (See, Art. 4, para. c.) It is to this end that elaborate reporting, licensing and penal measures have been developed. The most important of these latter provisions is subparagraph 1(a) of Article 36, which requires that:

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.

As a party to the Single Convention, Canada is bound to treat these types of conduct, with respect to cannabis, cannabis resin, and extracts and tinctures of cannabis, as punishable offences. Yet, there remains some doubt as to whether "possession," in the context of Article 36, subparagraph 1(a), refers to possession for personal consumption as well as possession for purposes of distribution. The Le Dain Commission's discussion of this problem (1972:210) concludes that "the prevailing view...is that the word ‘possession' in Article 36 includes simple possession for use." It is difficult to find other authoritative support for this interpretation.

The American Shafer Commission, following a comprehensive review of the Single Convention, concluded "that the word 'possession' in Article 36 refers not to possession for personal use but to Possession as a link in illicit trafficking." (1972:165) Adolf Lande, who served for many years as secretary of the Permanent Central Narcotics Board and the Drug Supervisory Body (two international drug organs) and who was the primary drafter of the Convention (see Bruun, et al., 1975:65 and 199), has written that:

The term "possession" and "purchase" used in the penal provisions of the Single Convention art. 36, s-para. 1(a) mean only possession and purchase for the purpose of illicit traffic. Consequently unauthorized possession and acquisition (purchase) of narcotic drugs including cannabis products for personal consumption need not be treated under the Single Convention as punishable offences or as serious offences. (Lande, 1973:128)

The substantive argument in support of simple possession falling outside the scope of Article 36 is founded on the assumption that it is intended to insure a penal response to the problem of illicit trafficking rather than to punish drug users who do not participate in the traffic. (See United Nations, 1973:112; Noll, 1977:44-45) The Third Draft of the Single Convention, which served as the working document for the 1961 Plenipotentiary Conference, contained a paragraph identical to that which now appears as article 36, subparagraph 1(a). This paragraph was included in a chapter entitled "Measures Against Illicit Traffickers," but the format by which the Third Draft was divided into chapters was not transferred to the Single Convention, and this, apparently, is the sole reason why this chapter heading, along with all others, was deleted. (See United Nations, 1973:112) Article 36 is still located in that part of the Convention concerned with the illicit trade, sandwiched between Article 35 ("Action Against the Illicit Traffic") and Article 37 ("Seizure and Confiscation"). In addition, it should be noted that the word "use," suggesting personal consumption rather than trafficking, appears in conjunction with "possession" in Article 4 (which pertains to non-penal "general obligations"), but not in the penal provisions of Article 36.

The official Commentary on the Single Convention on Narcotic Drugs 1961, as prepared by the office of the U.N. Secretary-General, adopts a permissive interpretation of "possession" in Article 36. It notes that whether, or not the possession of drugs (including prohibited forms of cannabis) for personal use requires the imposition of penal sanctions "is a question which may be answered differently in different countries." (1973:112) Further, the Commentary (1973:112) notes that parties which interpret Article 36 as requiring a punitive legal response to simple possession,

may undoubtedly choose not to provide for imprisonment of persons found in such possession, but to impose only minor penalties such as fines or even censure (since possession of a small quantity of drugs for personal consumption may be held not to be a "serious" offence under article 36... and only a "serious" offence is liable to "adequate punishment particularly by imprisonment or other penalties of deprivation of liberty."

In summary, Canada, as a party to the Single Convention, is not required to treat possession of cannabis products for personal use as an offence, or to impose criminal sanctions on such conduct even if it does choose to maintain a criminal prohibition.

"Possession" and other consumption-related conduct. The same reasoning which has been advanced to exclude simple possession for personal use from the penal obligations of Article 36 will also sustain the exclusion of other forms of drug-related conduct described therein, so long as they too are not incidental to illicit distribution. In this regard Noll (1977:44-45), a senior legal officer of the United Nations Division of Narcotic Drugs, has recently noted that "the whole international drug control system envisages in its penal provisions the illicit traffic in drugs; this also holds true for the 1972 Protocol." (Emphasis in the original.)

Since the penal provisions of Article 36 are applicable only to the arena of illicit trafficking, there is no obligation on parties to the Single Convention to create criminal offences for those aspects of the described conduct that are exclusively related to personal consumption. As a result, "cultivation" for personal use and even non-commercial "distribution" (sharing, for example) would, like possession for personal consumption, fall outside the mandatory penal provisions of Article 36. The obligation to criminalize a behaviour specified in Article 36 depends, then, on the purpose of that behaviour. If it is in furtherance of commercial trafficking, a party is required to impose criminal sanctions; if, on the other hand, the behaviour — be it possession, cultivation or distribution — is related solely to personal consumption, no such requirement arises. Consequently, Canada is not required to render criminal those activities solely related to consumption, although it may elect to do so.

Article 36 and the 1972 Protocol. The 1972 Protocol added a second subparagraph to Article 36, paragraph 1. This provision (Art. 36, s-para. 1(b)) reads:

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....

So, even where a party considers consumption-related conduct, including simple possession, to be subject to the penal provisions of Article 36, subparagraph 1(a), it is no longer obliged to punish the perpetrators of that behaviour so long as they are drug "abusers." As the official United Nations Commentary on the 1972 Protocol Amending the Single Convention on Narcotic Drugs 1961 (1976:76-77) indicates:

Parties may substitute measures of treatment (in the broad sense including also "education," "aftercare," "rehabilitation" and "social reintegration") for conviction or punishment of all abusers of narcotic drugs who have intentionally committed an offence covered by subparagraph (a), no matter how serious that offence may be. (Emphasis added.)

The emphasized words make clear that even those drug abusers who are demonstrably engaged in illicit trafficking need not be convicted of or punished for their offences.

"Possession" and the confiscatory obligation. Apart from those behaviours specifically delineated in article 36, parties to the Single Convention are not obliged to impose penal sanctions for any drug-related activities. There are, however, certain non-penal provisions which pertain to possessory conduct. The Convention's "general obligations" include the requirement that all parties limit the "use and possession" of drugs "exclusively to medical and scientific purposes." (Art. 4, para.(c)) Elsewhere, parties are mandated to "not permit the possession of drugs except under legal authority." (Art. 33) It is generally acknowledged that "possession" in these two articles includes possession for personal consumption. It is also recognized that these provisions are to be read together. (See United Nations, 1973:402). Their combined effect is to prohibit parties from permitting the possession of drugs for other than medical or scientific purposes. In short, Canada cannot, at present, affirmatively authorize the possession of cannabis for personal consumption without contravening its treaty obligations.

While Articles 4 and 33 do not oblige parties to the Single Convention to impose penal sanctions on possession for personal use, they do require the utilization of non-penal measures to discourage it.² Some of these are referred to in the Commentary (1973:402) which notes that parties which,

choose not to impose penalties on the unauthorized possession for personal use...still must use their best endeavours to prevent this possession by all those administrative controls of production, manufacture, trade and distribution which are required by the Single Convention....

Further, the obligation to restrict possession of drugs, including cannabis products, to authorized medical and scientific purposes suggests the use of confiscatory measures. Article 37 of the Convention reads, in part: "Any drugs...used in or intended for the commission of any of the offences, referred to in Article 36, shall be liable to seizure and confiscation." The issue is less clear, however, where a party does not conceive of simple possession, as contrasted with possession for the purpose of trafficking, as an offence within Article 36. The United Nations Commentary (1973:402-403) argues, somewhat unconvincingly, that:

Parties which do not consider such possession (for personal use) to be an offence under article 36, and therefore are not required to apply article 37 regarding the seizure and confiscation of drugs, are nevertheless bound to confiscate the drugs found in the unauthorized possession of persons for personal consumption. This obligation appears to be implied in the provision of article 33.

While a confiscatory obligation may impliedly flow from Article 33, it does not necessarily follow from this provision. Nonetheless, the American Shafer Commission adopted the construction proposed by the Official Commentary, recommending that cannabis possession no longer be an offence, but that it be classified as contraband subject to summary seizure and forfeiture. (1972:165-6, 152) The Le Dain Commission majority proposed a similar policy but, unlike its American counterpart, the Canadian Commission did not rationalize confiscation on the grounds of international treaty obligations.

Amendment and withdrawal. Canada's international narcotics obligations may be amended, or withdrawn from completely. Amendments may be proposed by any party. The Economic and Social Council then decides whether the proposed amendment is to be considered at a special conference or circulated to the parties for their acceptance and comments. If the latter route is chosen, the amendment comes into force eighteen months after its circulation, so long as no party has rejected it. If it is rejected by any party, the Council, in light of comments received from the parties, may still decide to call a conference to consider the proposed amendment. (See, Art. 47)

Any party may withdraw from the Single Convention (a procedure described as "denunciation") by depositing a written instrument with the Secretary-General. If this denunciation is received by July 1st of any year, it becomes effective on January 1st of the succeeding year. If received after July 1st, the denunciation does not take effect until January 1st of the second succeeding year. (See, Art. 46.)

The Convention on Psychotropic Substances, 1971, which creates international obligations with respect to THC and its isomers, contains parallel provisions to those in the Single Convention with regard to the general control regime and the processes of amendment and denunciation. Unlike Article 36 of the Convention, which requires that specified types of drug-related conduct be made punishable offences, the equivalent COPS provision does not detail specific kinds of behaviour but, instead, refers generally to each party's obligation to penalize "any action contrary to a law or regulation adopted in pursuance of its obligations under this Convention." (Art. 22, s-para. 1(a)) This approach appears to offer even more interpretative flexibility as to the range of conduct which parties are bound to render punishable offences than is the case with Article 36 of the Single Convention.

Summary. In summary, there is considerable constructive latitude in those provisions of the international drug conventions which obligate Canada to make certain forms of cannabis-related conduct punishable offences. It is submitted that these obligations relate only to behaviours associated with illicit trafficking, and that even if Canada should elect to continue criminalizing consumption-oriented conduct, it is not required to convict or punish persons who have committed these offences. The obligation to limit the possession of cannabis products exclusively to legally authorized medical and scientific purposes refers to administrative and distribution controls, and although it may require the confiscation of cannabis possessed without authorization, it does not bind Canada to criminally penalize such possession.