Health Protection Branch

Canada is a party to the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol. This treaty determines Canada's international obligations regarding the domestic control of cannabis products. It subjects "cannabis," "cannabis resin" (hashish) and "extracts and tinctures of cannabis" to stringent general control measures governing, among other things, import, export, manufacture and domestic distribution. "Cannabis" is defined as "the flowering or fruiting tops of the cannabis plant...from which the resin has not been extracted." It is generally conceded that this definition permits the legalization of the leaves of the cannabis plant, provided they are not accompanied by the flowering or fruiting tops. THC and its isomers are governed by the Convention on Psychotropic Substances, a distinct treaty to which Canada has not yet acceded.²

The primary object of the Single Convention is to restrict the trade in and use of controlled drugs, including cannabis products, to exclusively medical and scientific purposes. To this end, a number of elaborate reporting and licensing measures have been developed. As well, the sole penal provision of the Single Convention (article 36) requires that,

...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....

Consequently, Canada is bound to treat these activities, with respect to cannabis, cannabis resin, and extracts and tinctures of cannabis, as punishable offences. However, the prevailing view is that article 36 is directed towards illicit traffickers rather than drug users. As a result, it is generally accepted that the word "possession" in article 36 refers to possession for unauthorized distribution and not simple possession for personal consumption. Other consumption-related conduct described in article 36 may be similarly excluded from the treaty-prescribed obligation to impose penal sanctions. Thus, "cultivation" for personal use and even non-commercial "distribution" such as sharing, would, like possession for personal consumption, fall outside the mandatory penal provisions of article 36.

Certain "general obligations" in the Single Convention prevent Canada from affirmatively authorizing cannabis possession except for medical or scientific purposes. While these general obligations (articles 4 and 33) do not oblige treaty parties to impose penal sanctions on possession for personal use, they do require that non-penal measures be taken to discourage such possession. This, essentially, is Canada's present policy with respect to the "controlled drugs", such as amphetamines and barbiturates: these drugs may only be obtained upon prescription but their unauthorized possession is not a criminal offence. One such non-penal measure that may be employed is confiscation. Parties are expressly bound to seize and confiscate drugs involved in the commission of article 36 offences, but there is no explicit parallel confiscatory requirement for consumption-related conduct that, as indicated, falls outside of this penal provision. At least one country, the Netherlands, has found an implicit treaty obligation to confiscate drugs possessed for personal use. However, such a confiscatory obligation does not appear to necessarily flow from Single Convention requirements.

In summary, the Single Convention provision which obliges Canada to render certain cannabis-related conduct punishable offences allows considerable constructive latitude. The obligation to criminalize the specified behaviours apparently depends on the purpose of the behaviour. A party is required to impose criminal sanctions on conduct in furtherance of commercial trafficking, but not on conduct — be it possession, cultivation or distribution — that relates solely to personal consumption. Consequently, Canada is not required to criminalize consumption-related activities, although it may continue doing so. Further, even If continues to criminalize persons engaged in consumption-oriented conduct, the 1972 Protocol no longer requires a party to convict or punish such offenders. Finally, the general obligation to limit the possession of cannabis products exclusively to legally authorized medical and scientific purposes refers to administrative and distribution controls. Although this provision may require confiscation of cannabis possessed without authorization, it does not bind Canada to criminally penalize such possession.

A more detailed analysis of Canada's international obligations, including a discussion of the amending and withdrawal provisions, appears as Appendix A: The Single Convention and Its Implications for Canadian Cannabis Policy.