The Government of Canada, in Bill C-7, the Controlled Drugs and Substances Act, continues the policy of criminal prohibition of drug use. The Bill continues to criminalize the possession and trafficking of "soft" and "hard" drugs (e.g., marijuana and heroin respectively). There has been some small movement towards a less punitive response as a result of House of Commons sub-committee hearings: i.e., possession of cannabis in small amounts is now to be treated as a summary conviction rather than a hybrid offence. Nonetheless, drug prohibition by resort to the criminal law remains the norm.

    The explanatory notes to Bill C-7 at first reading stated that "[t]his enactment consolidates Canada's drug policy to fulfil Canada's international obligations under the Single Convention on Narcotic Drugs [(1961)], the Convention on Psychotropic Substances [(1971)] and the relevant portions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances [(1988)]". The assumption is that these treaties are capable of only one interpretation: that Canada under these treaties is obligated to continue the broad criminal prohibition approach to drug use found in Bill C-7.

    This assumption, however, is false. Other interpretations are possible that would limit resort to criminal prosecutions, at least with regard to personal consumption of narcotics for those dependent on these substances. These treaties contain qualifications and provisions that, in fact, allow parties to these conventions the scope to adopt measures that move away from the policy of criminal prohibition towards that of harm reduction.

         But first, an examination of the provisions of the 2 major treaties most on point is in order. These are the 1961 Single Convention on Narcotic Drugs and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

1. Single Convention on Narcotic Drugs, 1961

    Article 4 of this Convention sets out the general obligations imposed on the parties to this Convention. It provides, in part, that the parties "shall take such legislative and administrative measures as may be necessary" :

    (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. (emphasis added)

Thus, the trade in, use and possession of drugs for medical or scientific purposes is permitted by the terms of this Convention.

    Article 36(1) of the Single Convention provides:

    1. Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering for sale ... 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. (emphasis added)

    Note the qualifications that exist here: (a) the treaty cannot override a party's constitutional limits; (b) only the production or possession of drugs that is contrary to the Convention is caught; and (c) there is a distinction made between punishable offences on the one hand and serious punishable offences that lead to deprivation of liberty on the other.

    A party to the Convention may seek to amend or withdraw from the Convention. Article 47 allows a party to propose an amendment to the Convention. Article 46 allows a party to withdraw its consent from the Convention by formally denouncing it.

    A 1972 Protocol amended the Single Convention by strengthening its provisions relating to the prevention of illicit production, traffic and use of narcotics, while highlighting the need to provide treatment and rehabilitation to drug users.

2. United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988

    Article 2(1) of this Convention sets out its purpose: "to promote co-operation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotic drugs and psychotropic substances having an international dimension. In carrying out their obligations under the Convention, the Parties shall take necessary measures, including legislative and administrative measures, in conformity with the fundamental provisions of their respective domestic legislative systems."

    Article 3 obliges the parties to create certain criminal offences and sanctions. A number of criminal offences, as would be expected, relate to trafficking. These are found in Article 3(1). Here, for example, is set out the prohibition of the cultivation of the opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention and the 1961 Convention as amended. The obligation to create criminal offences relating to possession, cultivation, and purchase of narcotics for personal consumption is set out in Article 3(2). It provides as follows:

    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 substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention. (emphasis added)

    Note the qualifications built into this treaty regarding personal consumption offences: First, any such criminal offence must be consistent with constitutional principles and the basic concepts of the party's legal system. Secondly, the prohibition must be one caught by the terms of the 1961 Convention, as amended or the 1971 Convention. (This last Convention is the Psychotropic Substances Convention, which deals with synthetic hallucinations, stimulants and sedatives).

    Article 3(4) sets out sanctions that may be applied. Article 3(4)(a) provides that, as regards the offences set out in Article 3(1), (i.e., trafficking offences), sanctions should take into account the grave nature of those offences, such as imprisonment or other forms of deprivation of liberty. Generally, in addition to punishment and conviction, the parties may provide for measures such as education, treatment or aftercare. (Article 3(4)(b)). However, Article 3(4)(c) specifically provides that:

    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. (emphasis added)

    In relation to the personal consumption offences set out in Article 3(2), Article 3(4)(d) provides:

    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. (emphasis added)

    Finally, like the 1961 Convention, the 1988 Convention allows parties (a) to withdraw from it by denouncing it at any time (Article 30) or (b) to seek an amendment to it (Article 31).

    What are the implications of these treaties? To what extent do their provisions tie the hand of governments to prevent them from adopting harm reduction policies that move way from resort to the criminal law to deal with drug abuse? Consider the following 2 major issues.

1. Feasibility Trials for Heroin Users

     (a) Introduction:

    The Chief Coroner of British Columbia, in his recent report on illicit overdose deaths in that province, argued that "[t]he so-called 'War on Drugs' which is conducted by the Justice System can only be regarded as an expensive failure."See footnote 2 He pointed out that illicit drug use was the leading cause of death for both males and females in the 30-44 year age group in 1993.See footnote 3 In his examination of the issue of decriminalization of drug use (as distinct from drug trafficking), he said:

    Some users have minimal or no contact with the health care system and may be unwilling to acknowledge the risk associated with their behaviour. For this group, access to a system that controls the legal distribution of their drug of choice may be the only way to reducing the immediate prospect of death from drug overdose. Many of these individuals are injecting unknown substances of uncertain quantity and

quantity. Access to standardized, quality-controlled substances may be the safest option for them.See footnote 4

    Would allowing dependent drug-users to receive hard drugs such as heroin within a controlled medical setting be consistent with our obligations under these international treaties?

     (b) Australia

    Consider the case of Australia. Australia is a signatory to both the 1961 and 1968 Conventions. In 1995, the National Centre for Epidemiology and Population Health (NCEPH), after 4 years of work, a 2-volume earlier study and, at last count 13 working papers, reported that it was feasible to undergo pilot projects to determine whether the provision of heroin on a carefully controlled basis would be a useful addition to current maintenance treatment options for dependent heroin users.See footnote 5 The Australian Capital Territory is considering whether to proceed with this trial. Earlier, NCEPH had addressed the issue of whether such a trial would violate Australia's obligations under the 1961 and 1988

Conventions. It concluded no. Jennifer Norberry's analysis of this issue for NCEPH is particularly useful. After analyzing the provisions of the Single Convention of 1961 and the 1988 Convention, Ms. Norberry concluded that a trial of controlled opioid availability would be consistent with Australia's obligations under these Conventions because the trial would be for a medical or scientific purpose. She stated, in part:

    If a controlled trial of opioid availability can be regarded as a medical or scientific purpose, then it would not place Australia in breach of international treaty obligations. Indeed, reference could be made to the practice of other participating states -- for example, the United Kingdom -- as a guide to the interpretation of the relevant treaties, according to the Vienna Convention on the Interpretation of International Treaties ....

    ...

    The 1961 Convention is of particular importance in determining whether a controlled availability trial would place Australia in breach of international treaty obligations. Its provisions have been described as 'regulatory as opposed to merely prohibitionist' (Woltring 1990, p. 19). The one policy option which the commentators appear to agree would not be accommodated by the Convention is that of legalization .... (Woltring defines legalisation as 'total deregulation permitting the availability of drugs for purely recreational use', p. 19.)

    Woltring concluded that so long as they served a medical or scientific purpose, a number of policy options were available to the Government of a Party. These included the manufacture, trade in and distribution of heroin or cannabis either by a state enterprise or a licensed private enterprise, and supplying or dispensing 'drugs to drug abusers or AIDS/Hepatitis B risk users under appropriate programs' (p. 20).See footnote 6

2. Reforms to the laws governing cannabis use.

     In the context of cannabis use, consider the view of the Attorney-General's Department of Australia on the effect of these treaties. In a 1994 letter to the Queensland Criminal Justice Commission, the Attorney General's Department said that the 1961 and 1988 Conventions with respect to "personal consumption" conduct required the elimination of all possession/use (outside certain specified exceptions). However, neither required criminal proceedings for personal consumption and that therefore the "expiation notice" schemes in place in some states such as South Australia (where the police issue a ticket for simple possession) was consistent with both Conventions.See footnote 7 The Department's explanation of the effect of the 1988 Convention shows an awareness of the complexities of the wording of these conventions:

    5. In relevant respects, the requirements of the 1961 and 1988 Conventions with respect to 'personal consumption' conduct are not significantly different:

        *  &nbs p; both require the elimination of all possession/use (outside certain specified exceptions);

        *  &nbs p; neither therefore permits 'legalization' of personal consumption;

        *  &nbs p; both are aimed at particularly at 'trafficking' conduct;

        *  &nbs p; neither requires criminal proceedings for personal consumption.

    ...

    6. There is no doubt among experts on the 1961 Convention that Article 4 rules out "legalization' of the relevant drugs i.e. adoption of a regime of unrestricted personal use.

    ...

    7. The difference of opinion is as to whether parties are obliged by Article 36 to apply penal sanctions for unauthorised use/possession for personal use. Having regard to the history of the 1961 convention, the view is reasonably open, and several countries have acted on it, that parties are not bound to apply penal sanctions to such conduct. That view is based on the argument that Article 36 is directed to conduct relating to trafficking and that possession there referred to is possession for the purpose of the distribution and not personal consumption.

    8. Furthermore, even if the wider view of the conduct in Article 36 is adopted, parties need not provide for mandatory imprisonment, but may impose only minor penalties such as fines or censure.

    ...

    10. [As regards the 1988 Convention], the position of personal users was preserved in a way consistent with the 'narrow' scheme of Article 36 of the 1961 Convention, by the following scheme:

        First, the 'trafficking' conduct offences (Article 3.1) are to be subject to appropriately heavy penalties (Articles 3,4(a), 3.5, 3.6 and 3.7) except where such offences are of a 'minor nature' (Article 3.4(c)).

        Secondly, personal consumption offences are dealt with separately. While these are to be established as 'offences' (Article 3.2), they may be offences of a kind that do not involve conviction or punishment. A party may provide an alternative procedure leading to 'measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender'.

        11. It should be noted that the 1988 Convention has the same prohibitive scope as the 1961 Convention: the conduct to be proscribed is that 'contrary to the provisions of the 1961 [and certain other related] convention[s]'. (See the offence descriptions in Article 3.) The offence provisions therefore pick up the medical and scientific exceptions in the 1961 Convention.

        12. [I]t must be noted that under both [Conventions] there is a wide freedom for a party with respect to the government-controlled use of drugs for medical purposes. Also, it is open to a party to adopt more stringent control or prohibition measures. A concrete example of one policy approach is the present law in South Australia providing the option of an 'expiation fee' rather

than prosecution for a 'simple cannabis offence' (as defined). In the Department's view that approach is consistent with both Conventions.See footnote 8

    As well, in addition to studies on cannabis reformSee footnote 9, the National Task Force on Cannabis reported to the National Drug Strategy in September 1994.See footnote 10 That report rejected the total prohibition model that provides criminal penalties for minor cannabis offences. It recommended that while activities relating to the possession, cultivation, sale and non-therapeutic use of cannabis should remain illegal, "jurisdictions should consider discontinuing the application of criminal penalties for the simple personal use or possession of cannabis, without compromising activities aimed at deterring cannabis use".See footnote 11 Among the monographs accompanying the report was Legislative Options for Cannabis in Australia. It discusses the effect of these international treaties on options for reform of Australia's drug laws. It points out that there are several interpretations of the effect of these conventions. In the context of personal use and possession of cannabis, several policy options are available under these conventions: total prohibition; removing criminal penalties and imposing civil ones instead; partial prohibition (personal use and possession would not be offences at all); and regulating

the commercial sale of cannabis within the context of a medical or scientific model. Only free availability could be said to be definitely in breach of these conventions.See footnote 12 Since this report was published, the Federal Minister of Justice has supported a national project to study the impacts of the cannabis laws in different states. This research will continue for the next two years, with a major report due in June, 1996.

    Moreover, as already noted by Jennifer Norberry, Herman Woltring, a former principal policy adviser with the Attorney General's Department in Australia, has written that the effect of the 1961 and 1988 Conventions would be to allow a government to permit the cultivation of the cannabis plant and the opium poppy; to manufacture heroin and cannabis; to trade in and distribute cannabis and heroin; and to supply or dispense drugs to drug abusers, provided that the activity is in the context of a scientific or medical purpose ( according to Woltring, recreational use would not be permitted).See footnote 13

3. Other countries

    Finally, the practices of other countries who are signatories to some or all of these treaties also belies the notion that only the criminal prohibition model at least as regards drug users must be pursued:

    * England, a signatory to both the 1961 and 1988 Conventions, has never absolutely prevented physicians from prescribing heroin or cocaine to dependent drug users, although restrictions were put in place in 1968, in particular limiting the availablity of this option by requiring the licensing of physicians able to prescribe these substances.See footnote 14

    * Holland, a signatory to both the 1961 and 1988 Conventions, permits the possession of small amounts of cannabis and its sale in controlled circumstances, as in coffeeshops (although such activity is still prohibited on the books).See footnote 15 As well, in the context of possible government regulation of cannabis cultivation in Holland, others have argued that, by Articles 22, 23 and 28 of the Single Convention, "it is up to each individual nation to decide for itself which measures are most appropriate for protecting public health and welfare and for deterring illicit trafficking. If a country becomes convinced that prohibiting the cultivation, of, say, the cannabis plant is not the most appropriate means, that country is not obligated by virtue of the Single Convention to enforce prohibition, provided that it establishes a government agency that regulates and controls cultivation."See footnote 16

    * 3 year trial projects that allow in controlled circumstances the provision of heroin, morphine and intravenous methadone to a number of drug users presently underway in Switzerland, which began in January 1994 and are to end at the end of 1996. (Switzerland has ratified the 1961 Single Convention, but not, as of September 1 1995, the 1988 Convention). These trials were to involve initially 700 placements (since expanded). A preliminary January 1995 Status Report pointed out that, as of January 1 1995, a total of 422 persons had been admitted to these projects, of which 232 were treated in heroin prescription programs. As well, in heroin groups, patients were easily recruited and treatment was well accepted; compliance in the trials was good; the retention rate in heroin groups was close to 80%; health status was stabilizing and mostly improving; and social integration was improving too.See footnote 17

    * in France, the 1994 Henrion Report on drug use recommended, among other things, the decriminalization of simple cannabis use and the possibility of future government regulation of its commerce.See footnote 18 (The government, however, rejected this recommendation.)

    In short, countries that wish to pursue a policy of harm reduction by moving away from a policy of criminal prohibition have done so while continuing to be parties in good faith to these international conventions. Moreover, if a policy of harm reduction could not be accommodated by the terms of these conventions, a party could always seek to amend the treaties or to denounce them and thereby legally withdraw from them, as those treaties provide.

    Or consider the issue of the effects of these international treaties in this way. If they compel Canada to have narcotic laws as set out in Bill C-7, what does this say about other nations examined above? Are the following countries breaching their obligations under these treaties? Australia, examining how to reform its cannabis laws, and in which the Australian Capital Territory is considering setting up trial programs to provide heroin to dependent drug users? Switzerland, currently undergoing feasibility trials of prescribing heroin to dependent drug users? The Netherlands, with its policy of de facto decriminalization of small amounts of cannabis? England, where licensed physicians may prescribe heroin to drug users?

    In short, while Canada is not in breach of its international obligations under these international treaties by proposing Bill C-7, it has not taken the opportunity to pursue harm reduction measures that are permitted under them, most notably the exemption for the manufacture and possession of drugs for medical or scientific purposes (including clinical trials). Otherwise, this law would allow feasibility trials to provide opiates to dependent drug users. Nor has the government considered options based on the limitations to the obligations to create criminal offences found in the treaties. As noted, the 1988 Convention restricts personal consumption offences to ones consistent with the constitutional principles and basic concepts of the party's legal system. Arguably, a basic principle of our criminal legal system is that the criminal law should be used with restraint. After all, the Department of Justice itself has approved the following principle: "[T]he criminal law should be employed to deal only with that conduct for which other means of social control are inadequate or inappropriate, and which interferes with individual rights and freedoms only to the extent necessary for the attainment of its purpose".See footnote 19 Can it not be argued that this principle is a "basic concept" of our criminal legal system? It is difficult to take seriously an argument that Bill C-7 is rooted in this principle of restraint; for if it were, more likely than not this Bill would have to address the issue of decriminalization and regulation of much of this activity. Has the government considered alternatives to conviction and punishment that a party may pursue (although not obligated to), as provided in Article 3 of the 1988 Convention for minor trafficking offences and for personal consumption offences? In this regard, does the

government agree with the Australian Attorney General Department's argument that the treaties do not require that criminal proceedings be pursued in respect of personal consumption offences? If so, could not the government pursue Holland's de facto decriminalization policy of possession and controlled sale of small amounts of cannabis, or at the very least create the fine expiation schemes found in some Australian jurisdictions regarding simple possession of cannabis? In conclusion, what is the government's interpretation of these treaties that is used to justify such an unimaginative approach to a complex social problem that is ill-suited to be solved by broad resort to the criminal law?