Canada: It Should Be Happy Canada & Cannabis Day 2018, Eh – But What About Our International Drug Treaty Obligations?

Last Updated: May 16 2017
Article by Amanda Branch

It looks like we may have a Happy Cannabis Day by July 2018.

The federal Liberal government introduced a suite of bills in the House of Commons on April 13, 2017. The proposed legislation, Bill C-45, entitled An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the "Act") would legalize recreational marijuana consumption and sales in Canada. The government hopes to implement the legislation by July 2018.  

Elements of Bill C-45

Under the Act, it will not be an offense for a person over 18 years to possess in a public place up to 30 grams of dried cannabis, or the equivalent in other forms of cannabis. An adult over 18 years old may grow up to four cannabis plants that are not budding or flowering, with the plants not to exceed one metre in height. Sales of cannabis are to be restricted to people aged 18 and older; however, provinces will be permitted to increase the minimum age.

Promotion

The Act sets out strict rules for promotion. It is prohibited to promote cannabis or cannabis accessories and services by:

  • communicating information about its price or distribution;
    • unless the promotion is at the point of sale and the promotion indicates only its availability and / or its price.
  • by appealing to young people;
  • by using a testimonial or endorsement;
  • by using a mascot, whether real or fictional, person or animal; or
  • by presenting it in a way that associates cannabis or your brand with a lifestyle that appears glamourous, risky, or exciting.

There are exceptions. Subject to the regulations, you may promote cannabis or any accessories or services related to cannabis, so long as the promotion is:  

  • addressed and sent to a named individual over 18 years old;
  • in a place where young people are not legally allowed to go;
  • communicated by telecommunication, so long as reasonable steps are taken to ensure the promotion won't be accessed by a young person; or
  • done in a way that is prescribed by the regulations.

Additionally, you may promote cannabis or a cannabis accessory or service by "displaying a brand element" of cannabis on a "thing that is not cannabis" so long as that "thing" is not associated with young people; is not of appeal to young people; and is not associated with a glamourous, risky or exciting lifestyle.

You cannot promote cannabis or cannabis accessories in a way that is false, misleading or deceptive or in a way that is likely to create an incorrect impression about its characteristics (such as strength, potency, purity, safety or health risks). You also may not engage in prohibited promotions outside of Canada.

Finally, subject to the regulations, this prohibition on advertising does not apply to:

  • A product placement, so long as no direct or indirect consideration is given (i.e., a "literary, dramatic, musical, cinematographic, scientific, educational or artistic work, production or performance that uses or depicts cannabis, an accessory or a service, or a brand elements)
  • an editorial opinion or commentary work, so long as no direct or indirect compensation is given;
  • business to business promotions – that is, a promotion from one person authorized to produce, sell or distribute directed to another, but not directly or indirectly targeted to consumers;

Packaging and Labelling

You cannot sell cannabis or cannabis accessories in a package or with a label that:

  • is appealing to young people;
  • uses testimonials or endorsements;
  • uses a mascot, whether real or fiction, person or animal;
  • associates the cannabis or the brand with a lifestyle that appears glamourous, risky, or exciting; or
  • contains any information that is false, misleading or deceptive or that is likely to create an incorrect impression about the characteristics of the cannabis or the accessory.

Much of the legislation is specifically targeted at limiting potential exposure to young people. For example, it is prohibited to display cannabis or any cannabis accessory in such a way that may result in the product, package or label being seen by a young person, and you cannot sell cannabis or a cannabis accessory that has an appearance, shape or other sensory attribute or function that could reasonably be believed to be appealing to a young person.

The Act addresses packaging limitations, but does not appear to go so far as to contemplate blanket "plain packaging" akin to what has been discussed for tobacco. Instead, the Act, and presumably the future regulations, seems to be focused on preventing activities or branding that would be appealing to young people.

What about our international obligations?

Canada's decision to legalize has attracted international attention. The United Nation's ("UN") International Narcotics Control Board ("INCB") in their 2016 Annual Report, released on March 2, 2017, reiterated its position that any such legislation is contrary to the provisions of the international drug control conventions, namely:

  1. Article 4, paragraph (c) of the 1961 Convention as amended, which requires State parties to "limit exclusively to medical and scientific purposes the product, manufacture, export, import, distribution of, trade in, use and possession of drugs; and
  2. Article 3, subparagraph 1(a) of the 1988 Convention which obligates each State party to adopt such measures as may be necessary to establish as criminal offences under its domestic law the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug contrary to the provisions of the 1961 Convention.

The UN pointed out that Canada is a party to these drug control treaties and the legalization of marijuana would be inconsistent with the requirement that the use of narcotic drugs is limited exclusively to medical and scientific purposes.

In the same report, the UN also condemned Uruguay, who in 2013 became the first country to enact legislation to legalize and regulate cannabis, for their decision to do so; however, the reality is that these treaties lack any real teeth, so the ramifications against Uruguay for failure to comply have been minimal. The report also called out the US states that had legalized or regulated the drug (to date: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington) as failing to comply with the treaties, although marijuana is still illegal at a federal level.

Canada has been moving towards legalizing marijuana despite our obligations under these treaties. The marijuana task force report does acknowledge the existence of these treaties and offered the opinion that legalization of cannabis did actually meet the objectives of the task force, including protecting vulnerable citizens and implementing evidence-based policies, but ultimately was of the opinion that suggesting a solution was beyond its mandate. 

As we move towards legalization, it will be interesting to see how the government of Canada intends to deal with our international commitments under these treaties. We have some options: we could follow the US model and allow provinces to legalize or regulate while still maintaining a federal ban on cannabis; we could follow Uruguay and legalize unapologetically; or we could withdraw from the treaty on the basis that we cannot comply, with the potential to legalize marijuana and then re-accede. There is precedence for the latter – in 2012, Bolivia withdrew from the international drug treaties because of the traditional practice of chewing cocoa leaf, the raw ingredient for cocaine and a narcotic under the 1961 Convention. The following year, Bolivia was allowed to re-accede with a reservation for chewing coca.

Given that the Canadian legislation is expected to include regulation at both the federal and provincial level, it seems unlikely that we're following the US model. But will we legalize boldly or withdraw from the treaties entirely? Either way, it looks like Canada will have to blaze its own trail through the legalization of cannabis.

Conclusion

Canadians would be well advised to remember that possessing and selling cannabis for non-medical purposes is still illegal (and punishable) everywhere in Canada. The NDP has called for an immediate decriminalization of marijuana until a new law is passed; however, Prime Minister Justin Trudeau has insisted that Canadians must follow the existing law until has been officially changed. As a result, it is possible that further raids of marijuana dispensaries will continue and police can continue to charge people with possession and trafficking.

Further, despite the fact the Liberals have recognized that the enforcement of cannabis law traps people in the criminal justice system for minor, non-violent offenses, the Government of Canada has been clear that they do not intend to grant blanket pardons for previous convictions of simple possession of cannabis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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