Canada in 2018 and the End of the Prohibition Consensus

BY Blair Gibbs   /  13 March 2018

The Canadian Prime Minister, Justin Trudeau, returned last month from a long and disastrous visit to India – a country of huge importance to the West.  The foreign policy failure of this visit will sting for some time.  It is just not what friendly Canadians are used to.  They rarely alienate other nations; they leave that to the Americans.

Diplomatic missteps aside however, foreign policy could be about to get even trickier for Trudeau in 2018, as his Liberal government continues to lose its shine.  Since he was elected in 2015, Trudeau has been keen for Canada to play its traditional role of consensus-builder.  But we are in a period where some key pillars of international consensus are breaking down – from the divided response to the regime in Syria, to the UK’s departure from the European Union, and America’s withdrawal from the Trans-Pacific Partnership, and possibly even NAFTA.

It is timely therefore that Canada is chairing the G7 this year, including a major summit in Quebec that will try and build consensus around the future of jobs, clean energy, and security.  But the Canadians are about to cause some disruption of their own, by simultaneously moving ahead with the legalisation of recreational marijuana – a domestic policy that will abruptly end 40 years of international agreement on the control of illicit drugs.

Because of its implications for international rules on prohibition, the trade impact of the export industry that is already emerging, and because of the country’s position and reputation, Canada’s lurch to legalisation is about to be a very public moment of exceptionalism, from a nation that rarely, if ever, upsets the apple cart.

Breaking with consensus

If there is one country that epitomises consensus it is Canada.

Under Trudeau’s Liberal Party – and as a deliberate statement against the isolationist tone of the Trump administration – Canada is striving to safeguard the NAFTA treaty, and continues to be fully engaged with other liberal alliances and institutions like the United Nations.

A government’s foreign policy is no longer entirely separate from how it chooses to govern itself, and its own domestic policy agenda.  On the issue of drug control, the matter was gradually internationalised over the course of the 20th century, and how a country regulates a controlled substance is not simply a domestic matter anymore.

Clearly, legalising cannabis sets Canada apart from, and directly challenges the federal policy stance of their powerful southern neighbour and it puts the national government in Ottawa in contravention of international agreements and out of step with every nation it considers to be counterparts. Canada’s reputation for upholding the international rules-based order is at stake.

Too big to ignore

Admittedly, smaller, less powerful countries have gone down this path already, but none are considered real trend-setters.  Portugal and Holland have both ducked the international complications by only decriminalising, and keeping domestic laws prohibiting production and supply in place.  And Uruguay has fully legalised, but has tried not to champion its own public health approach too loudly.

After next summer, politicians and officials across major G7 nations are going to have to adjust their perspectives on legalisation, to accommodate the reality of Canada’s new position.  This will no longer be an interesting experiment happening in some freedom-loving part of the United States, or in a tiny country like Uruguay (population 3.4 million).  It will be a reality in a Western country of 36 million people, and of all places, the safe, sensible nation of Canada.

The timetable for passing the Cannabis Act has slipped, but barring a major upset, by the time the House of Commons rises here on 22 June, the legislation will have passed and in just a matter of weeks later, Canadians will be free to legally buy a substance which in other countries people are arrested and sent to prison for.  That reform is politically in-ignorable.

International obligations

Most experts accept that at least on the face of it, legalising recreational use conflicts with Canada’s United Nations obligations, contained in at least three treaties, which this country (like the United Kingdom) otherwise takes very seriously indeed.  Ottawa will need a plan to address the consequences at the United Nations.  What will that look like?

In a book that speculated on what might happen when the first nation legalises cannabis, two of the world’s leading drug policy experts – Mark Kleiman and Beau Kilmer – argued that a country’s only path involves withdrawing from the relevant UN rules and then immediately seeking to rejoin but with a qualification that would keep Canada notionally compliant, despite its creation of a legal, recreational cannabis regime (medical regimes are already tolerated).

Under UN processes, other signatory nations would then have a set period to accept the Canadian application or contest it, at which point a special summit might be necessary.  It would get difficult for Trudeau if other nations objected and it became a voting issue at a special session.  If no dispute arose, then Canada could be readmitted quietly and continue to be a signatory, with other countries looking the other way, but it would cast the long-term viability of the rules into doubt.

This approach might give Canada a way to remain part of the UN conventions, and continue to stand behind the joint efforts to combat illicit markets in the harder, more harmful substances. But no major nation has tried this since the drug conventions were instituted (Bolivia was the exception, on another issue) so it is hard to predict how others will respond.

The American response

Most importantly, it is difficult to know for sure how the country that remains the biggest advocate for prohibition will react.  America was the champion of these UN agreements starting back in the 1960s, and their current government is not about to welcome a dialogue about replacing or repealing them, or anything that might question their relevance.

As more and more US states opt to legalise, the stance of the Federal government is being watched closely.  And whatever Congress might be contemplating in the wake of  California’s law change, the American government is nowhere near changing its international stance.

Remarkably, since the Trudeau government moved forward with legislation to lift the prohibition on cannabis, the United States has been entirely silent.  That could not hold once Canada notified the UN of its intention to withdraw, so it will be critical how the US chooses to respond to that.

Lessons for Britain

Unlike the trip to India, cannabis legalisation is a self-inflicted diplomatic headache that Trudeau’s government can see coming.  And it is the kind of difficulty that most governments would regard as yet another reason not to legalise cannabis, or at least not to do so unilaterally.  That is undoubtedly how British civil servants would view it.

With the Brexit effort all but overwhelming the minority government of Prime Minister May, it is inconceivable that the UK would attempt something similar – maybe at any time, and certainly not now.  The British civil service is far too conservative at the best of times, and currently has its hands full.  But Brexit should be about renewal, and a re-engagement with the wider world, and that should mean closer partnerships with those commonwealth nations that have something to teach the UK.  For drug law reform, Canada is just such a country at the moment.

Ottawa’s decision to push ahead with legalisation is a sign that despite its best traditions of consensus-building, Canada is free and willing to dump a failing status quo and stand apart – even if that decision creates foreign controversy and could yet upset your allies.  Might a Britain outside of the European Union choose to be sovereign like this, and forge its own domestic policy path in the same way, or will it turn in on itself and retreat from any domestic reform that is distinctive, progressive and yes, risky?

Canada’s legalisation is six months away from becoming a reality, and you don’t have to support the policy to see it as a stark example of how independent countries can set aside old conventions and shape their own distinctive national policy.  A timely lesson for British politicians in what sovereignty looks like, if only they would lift their sights.

Blair Gibbs is a consultant living in Vancouver and former policy advisor to Michael Gove