Canada and Cannabis: A More Complicated History

Editor’s Note: Today’s post comes from Michael Couchman, a PhD candidate in history at Queen’s University in Kingston, Ontario. It’s based off his presentation at the Cannabis: Global Histories conference held at the University of Strathclyde, Glasgow, from April 19-20, 2018. Enjoy!

At the United Nations General Assembly Special Session on the World Drug Problem in 2016, Canadian Health Minister Jane Philpott proclaimed that, “Our approach to drugs must be comprehensive, collaborative and compassionate. It must respect human rights while promoting shared responsibility. And it must have a firm scientific foundation. In Canada, we will apply these principles with regard to marijuana.” Although Canada’s upcoming decision to legalize cannabis presents considerable difficulties in the context of the many international drug control treaties to which it adheres, this challenge presents a unique opportunity to promote some much-needed reforms in the realm of multilateral drug laws. Being the first G7 country to tax and regulate cannabis at the national level, Canada has the potential to help redefine the global regulatory apparatus and its directives concerning cannabis and other illicit drugs.

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Michael Couchman presents his work at the Cannabis: Global Histories conference at the University of Strathclyde, Glasgow, on April 20, 2018. Photo by Morgan Scott, Breathe Images

In this sense, Canada might once again be pre-empting future changes in international drug law for the second time in the past century. For reasons that remain ambiguous, cannabis was prohibited in Canada in 1923, when it was discretely appended to the Opium and Narcotic Drugs Act, a piece of legislation that had evolved partially as a means of fulfilling Canada’s obligations to the international opium conventions concluded at Shanghai (1909) and The Hague (1912). Although the drug was virtually unheard of in the country at the time, Canada became the first western state to ban cannabis at the national level. This bizarre and seemingly needless decision predated even the first international controls placed on cannabis by the Opium Advisory Committee (OAC), a sub-agency of the League of Nations that had been entrusted with upholding and amending The Hague Opium Convention following the First World War.

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Henri Beland

Henri Beland, Health Minister and head of the Canadian delegation at the OAC’s first plenipotentiary conferences in 1924-1925, had been instrumental in crafting and implementing the Opium and Narcotic Drugs Act. Strangely, however, he did not participate in the OAC’s subcommittee on cannabis that formulated the first international controls on the drug, nor did he even mention that Canada was one of the few countries in attendance that had already prohibited it. The apparent obliviousness of Beland on the issue of cannabis would seem to belie a similar lack of awareness on behalf of the legislators who had chosen to add it to the list of controlled substances in Canada.

Cannabis prohibition went largely unquestioned in Canada until the federally authorized Le Dain Commission reported in 1972. They recommended the repeal of all laws applying to possession and cultivation for personal use, though the 1961 Single Convention (the United Nations’ consolidation of the OAC’s previous protocols and treaties) precluded the federal and provincial governments from removing criminal penalties for these offences.

Justin Trudeau’s nationwide legalization campaign faces similar hurdles at the international level, though Canada actually has several options for extricating itself from the UN drug control treaties as they apply to cannabis. The simplest and most expedient course of action would be for Canada to denounce these accords and exempt itself entirely from this system, though this would prevent it contributing to the ongoing debate surrounding global drug policy reform. Alternatively, Canada could make a late reservation regarding its accession to these agreements, just as Bolivia did in order to permit the chewing of coca leaves under its constitution. However, any attempt to codify the legality of cannabis in the Canadian Charter of Rights and Freedoms would be met with tremendous political opposition.

The inter se modification of these agreements might be the most effective and diplomatically amicable means of achieving treaty reform. This approach would allow for Canada and any like-minded states to alter the terms of these accords between themselves, so long as this did not interfere with the rights of the other signatory parties and was not “incompatible with the effective execution of the object and purpose of the treaty as a whole.” A strong case could be made that the creation of a legal, regulated market in cannabis is consistent with the UN’s increasing emphasis on taking a harm reduction approach to drug use. This group of inter se states could also collectively lobby for a comprehensive medical and scientific review of cannabis by the World Health Organization, and establish an independent international commission to provide impartial oversight for national experiments in legalization and decriminalization.

Canada’s experiment in creating this government sanctioned legal market in cannabis has the potential to prompt a complete reconsideration of the multilateral policy framework that now governs official attitudes towards illicit substances. One can only hope that this initiative will be guided by principles far more informed, effectual, and compassionate than those that have historically characterized Canadian drug policy.