The New Cannabis Law

Transcription

1 Speech delivered by the Rt Hon Mark GOLDING, Minister of Justice of Jamaica at the Symposium on Experience with New Evolutions in Drug Policy, 17 November 2015, Oslo I wish to commend the Pompidou Group for arranging and hosting this symposium. The timing is appropriate - as we prepare for the UNGASS 2016, it provides an opportunity to share experiences, to learn from each other and to identify those issues and concerns in respect of which we can find common ground. I believe this kind of engagement promotes a more efficacious approach to evaluating the impact of the current international drug policy under the relevant conventions in the social and cultural context of member countries, and in light of new scientific evidence, current developments and global trends. I am grateful for the invitation to share the Jamaican experience. In recent years many countries, including Jamaica, have been reviewing their drug policies and related laws. In Jamaica the focus is on cannabis, which is known as ganja in Jamaica. In June 2014, the government approved a new policy towards cannabis, resulting in the enactment of the Dangerous Drugs (Amendment) Act 2015, which introduced important changes to the way cannabis is treated in Jamaica. Before dealing with the changes to the law, I would like to say something about the circumstances leading to these changes, as they give an insight into the societal context and the underlying policy considerations. Background Jamaica is party to the main international drug conventions UN Single Convention on Narcotic Drugs (the Single Convention) and the 1972 Protocol Amending the Single Convention, the 1971 UN Convention on Psychotropic Substances, and the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Cannabis is included in the definition of drug for the purpose of these Conventions, and consequently the rigorous drug control regime imposed under those Conventions applies to cannabis. This is reflected in our domestic law, the Dangerous Drugs Act, which up until the recent amendments treated the smoking, possession and other activities involving cannabis as criminal offences which attracted heavy penalties (i.e. a fine or imprisonment, or both a fine and imprisonment) and a criminal record for the convicted user. Despite this rigid international and domestic legal framework, the use of cannabis for recreational, religious and medicinal purposes has long been, and remains, widespread in Jamaica. As a result of this widespread use, considerable debate has surrounded the decriminalization of cannabis in Jamaica, spanning several decades. In 1977, a Joint Select Committee of Parliament was set up to consider the matter of cannabis, and to make recommendations. The 1977 Joint Select Committee recommended that there should be no punishment for the personal use of marijuana, up to two (2) ounces, 1

2 by persons on private premises, and that the prescription of marijuana for medicinal purpose should be legal. These recommendations were not, however, acted upon. Over twenty years later, a National Commission on Ganja was appointed to conduct an all-encompassing review of the subject, including wide public consultations. In its report of August 2001, the National Commission recommended the decriminalization of the private use of small quantities of cannabis by adults, the decriminalization of cannabis for use as a sacrament by Rastafarians for religious purposes, the implementation of a public education campaign to discourage use by young persons, and the establishment of a Cannabis Research Agency, in collaboration with other countries, to coordinate research into all aspects of cannabis. The National Commission s 2001 Report was reviewed, and its recommendations endorsed, by a 2003 Joint Select Committee of Parliament. However, no action was taken to implement any of these recommendations until the approval of a shift in policy by Cabinet in June 2014, which has culminated in the enactment of the Dangerous Drugs (Amendment) Act It is noteworthy that in the interim years there has been a liberalization of the laws and regulations relating to cannabis in many other countries. In Canada and some twenty (20) states in the United States of America, marijuana has been decriminalized for medical purposes. In countries such as Australia, Argentina, Netherlands, Portugal, India and Ecuador, and in the U.S. states of Colorado and Washington, the use of small amounts of marijuana by adults in private is permitted. More recently, Uruguay has moved to an even greater relaxation of the legal strictures toward the legal production and distribution of cannabis. These developments abroad have helped to create a more receptive environment for the reform of the law in Jamaica. On the local front, support for the decriminalization of cannabis came from no less a source than the Executive Director of the National Council on Drug Abuse, who expressed the view that the smoking of cannabis was more appropriately treated as a health concern, and recommended the setting up of a drug treatment and rehabilitation programme for drug abusers, and a national education programme to inform persons of the possible dangers of using cannabis. The New Cannabis Law In June 2014, Cabinet approved certain changes to the law relating to cannabis, and I had the honour of piloting the resulting legislation as Minister of Justice. The Dangerous Drugs (Amendment) Act, 2015 was enacted earlier this year and came into force on April 15, Briefly, these changes relate to the penalties for small quantities of cannabis for personal use (possession of cannabis, and smoking of cannabis in private places), and the use of cannabis for medicinal and religious purposes and in scientific research. The changes also create a regulatory framework for the development of a regulated medical cannabis and hemp industry. 2

3 I will now speak to the specific amendments. 1. Personal Use Prior to these changes, the law imposed a total prohibition on the smoking and possession of cannabis. The possession of "pipes or other utensils" for smoking was also an offence. This offence was abolished by the amendment. The smoking of cannabis has now been aligned with the Public Health regulations that prohibit smoking in public spaces, making smoking cannabis an offence only if done in public. The possession of cannabis in small quantities (defined as 2 ounces or less), and the smoking of cannabis in public, are no longer arrestable offences giving rise to prosecution in court and a criminal record, but are now ticketable violations which attract a fixed penalty of J$500, payable at a tax office or online (similar to a traffic ticket), which does not result in a criminal record. Where the offender is a minor, or an adult who appears to be dependent on cannabis, the police, in addition to issuing a ticket, must refer that person to the National Council on Drug Abuse, where a rehabilitation programme will be made available. Prior to the amendments, the Police had lawful authority to arrest and detain persons for the smoking or possession of cannabis, resulting in prosecution of these cases in court and, on conviction, a punishment of a fine and/or imprisonment, and a criminal record. These minor cannabis cases have contributed significantly to the backlog of cases in our courts. A review of the Justice system in 2013 noted that reforming the law s treatment of possession of minor amounts of cannabis was most commonly mentioned by stakeholders as the best way to reduce the pressure and the backlog in the lower criminal Courts. During 2014, the total number of cases in the relevant criminal court in the capital, Kingston, was 19,840, of which cannabis-related offences comprised 26.1% (4,522 cases). This pattern was replicated in other courts outside Kingston, resulting in an estimated 15,000 cases per annum for personal use of cannabis. The changes to the law are intended to relieve the caseload in the lower criminal courts, allowing more time to be devoted to serious cases and crime-fighting activities, thereby enabling the more efficient use of police and judicial time. Of greater importance, in terms of the human capital, is the impact of these changes to the law on the persons who commit these minor drug offences. The attachment of a criminal record as part of the penalty for these offences has presented a serious social and economic handicap to a convicted offender, who is typically a young male. A criminal record often precludes such a person from engaging certain employment, affects his ability to get visas to travel overseas, and generally limits his life prospects. In reality the legal processes and sanctions applied under the old law were disproportionate to the wrong committed. The changes to the penalties under the new law, including the removal of the criminal record for violations amounting to personal use, reflect a greater sensitivity to the human and constitutional rights of the individual. 3

4 As a companion measure, Jamaica s Criminal Records legislation has been also amended to provide for the automatic expungement of criminal records for past convictions for offences involving the personal use of cannabis, upon applying for a Police certificate of your criminal record. Several thousand Jamaicans have already benefited from this facility. The old law fostered friction and animosity in the relationship between the police and youths in communities across Jamaica, and was a common basis for treatment of citizens that was perceived as abusive. This approach undermined the rule of law by weakening the social relationships between the Police and the communities on which effective community policing is based. The undesirable consequences of the old law were brought home forcibly by the recent case of Mario Deane, a 31 year old construction worker who was arrested and taken into custody for possession of a cannabis cigarette in August During the period of his detention he was severely beaten, sadly causing his death. While there may be controversy as to the precise circumstances of his injuries, the fact is that were this not an arrestable offence, he would not have found himself in that perilous situation. It is hoped that the recent changes to our law will remove this longstanding source of tension between police and the community, especially the youths. Apart from the new penalty structure, the new provisions are intended to provide a more holistic and focused approach to treating with the problem of recreational cannabis use, as reflected in the provision for referral of youth offenders and drug dependent adults to a drug treatment and rehabilitation programme. There is a view that the changes in the law relating to smoking and possession of cannabis may widen the accessibility and appeal of cannabis, especially among young people. While this possibility has to be acknowledged and prepared for, the truth is, the use of cannabis has long been prevalent despite the legal prohibition. The Government is of the view that the problem is more appropriately treated as a public health issue than as a matter for the criminal justice system, and is aware that a fulsome harm-reduction policy has to be pursued. Accordingly, an intensive education programme has been developed by the National Council on Drug Abuse, with a special focus on young persons. Initial budgetary support is being provided by the Ministries of Health, Education, National Security and Justice, pending the inflows of revenues from the licensing of participants in the medical and therapeutic cannabis industry, for which the recent law reform has provided a legal framework. Under the new law, a portion of those revenues must be allocated to certain specific objectives to ensure that they can be sustainably financed, including public education directed at discouraging cannabis use by adolescents and other vulnerable persons, and the strengthening of Jamaica s drug rehabilitation programmes and mental health services. Work is also being done on the design of special drug treatment programmes for young persons, and the adjustment of relevant legislation to facilitate referrals by the court to such programmes in appropriate cases. 4

5 2. Sacramental use Rastafarianism is a religion with roots in Jamaica which go back to the first half of the Twentieth Century. Rastafarians generally use cannabis as a sacrament, the smoking of which is an integral part of their rituals of spiritual meditation and worship. As stated earlier, the decriminalization of the use of cannabis by Rastafarians has been the subject of strong advocacy and recommendations by various specially appointed committees, and the Rastafarian community itself, as they have continued to be open to harassment and prosecution over their use of cannabis. Indeed, no reform of the law relating to cannabis could be undertaken without addressing the use of cannabis by Rastafarians. The denial of the religious freedom of Rastafarians would be extremely difficult to defend at this time in light of developments abroad and at home which support a more liberal approach to the use of cannabis, including changes to the legal landscape. Of particular significance is the 2011 amendment of the Jamaican Constitution to introduce a new Charter of Rights and the repeal of the savings provision preserving preindependence laws, like the Dangerous Drugs Act, which had been invoked to defeat a constitutional challenge brought by a Rastafarian against the cannabis law. The 2011 Charter of Rights requires that breaches of guaranteed rights have to be demonstrably justifiable in a free and democratic society, a threshold which could not now be met. The new law permits the possession of cannabis by adherents of the Rastafarian faith for sacramental use. It also makes provision for them to obtain approval for the cultivation of cannabis for sacramental purposes on designated lands, for the designation of their places of worship (which will be exempt from the laws relating to possession and smoking of cannabis), and for the exemption of events primarily to celebrate or acknowledge their faith to be exempted from restrictions relating to cannabis. A ministerial advisory committee, drawn from the various constituents in the Rastafari community and selected by them, has been appointed to guide the granting of these various authorizations by the Minister of Justice. It should be noted that, apart from the provision for the cultivation of cannabis on designated lands on the authorization granted by the Minister responsible for justice, the new law also permits the growing of up to five cannabis plants by each household. The changes to the law permitting the sacramental use of cannabis are based on the fundamental right to freedom of religion which is protected by the Jamaican Constitution, and are facilitated by the recognition, by the relevant international conventions, of the primacy of a country's Constitution over Convention obligations. 3. Medicinal, Scientific Research and Industrial purposes It is becoming widely accepted across the world that cannabis has various therapeutic uses. Medical and scientific research on cannabis has shown it to be effective in the treatment of a growing number of medical conditions. Persons who suffer from the effects of cancer, HIV/AIDS and other diseases, have found significant relief of various 5

6 symptoms from the use of marijuana, though in many cases they are forced to do so illegally. In Jamaica, the use of cannabis for medicinal purposes has been a cultural practice, and local scientists have long been engaged in research on cannabis, including the development in the 1970 s of the drug Canasol from the cannabis plant for the treatment of glaucoma. However, these research activities had to be facilitated by informal and ad hoc arrangements with the Jamaican Police for the supply of seized cannabis to the researchers, due to the absolute prohibition under the Dangerous Drugs Act. These informal arrangements were neither suitable nor sustainable for the pursuit of research at the level contemplated. In recent times, increasingly strong interest has been shown by Jamaica s leading universities and investors in the potential for the development of medicinal preparations from the cannabis plant. The need for the amendment of the law was therefore pressing, given the growing body of scientific evidence regarding the medicinal properties of cannabis, and the economic potential of its exploitation as a lawful regulated industry. An important consideration in this regard is the fact that our obligations under the international drug conventions permit these activities, provided the necessary regulatory controls are put in place. As regards the medicinal use of cannabis, the recent amendments permit the use of cannabis by persons for medical and therapeutic purposes upon prescription by a registered medical practitioner or other health practitioner approved by the Minister of Health. Persons who are suffering from cancer or other serious chronic illness are also permitted to import cannabis or products comprising cannabis, where their use is recommended by a registered medical practitioner, in an amount not exceeding that recommended by the registered medical practitioner. Persons visiting Jamaica may be permitted to purchase and possess up to two ounces of cannabis while in Jamaica, upon providing satisfactory evidence that their use of cannabis for medical or therapeutic purposes has been prescribed by a medical practitioner in the jurisdiction where they are ordinarily resident, and subject to payment of the requisite fee and any other requirements prescribed by the Ministry of Health, which is the responsible authority in this regard. As regards scientific research and the development of a regulated cannabis and hemp industry, the recent amendments provide for the establishment of regulatory regimes to govern the cultivation and use of cannabis for medical and scientific purposes as well as industrial hemp. The amendments also enable the Minister responsible for science and technology to authorize an accredited tertiary institution, or other body approved by the Scientific Research Council, to cultivate cannabis, and import cannabis plant material from authorised sources, for scientific research purposes. To date, research authorisations have been granted to the University of the West Indies and the University of Technology, and to a private entity. 6

7 The new law has also established a Cannabis Licensing Authority for the purpose of enabling the establishment of a lawful, regulated industry in hemp and cannabis for medical, therapeutic or scientific purposes. This Authority is empowered to make regulations establishing the procedures and criteria for licenses, permits and other authorizations for handling cannabis. The Cannabis Licensing Authority is now engaged in the development of the requisite regulations. The design of the regulatory system is critical. There are two important concerns to be met. One is the stipulation in the Act that the regulations must be compliant with the control regime dictated by the international drug conventions. The other is the need to ensure that this new lawful industry is accessible and attractive to entrepreneurs at different levels, especially small farmers who have been cultivating in the shadows of illegality for decades. This presents a challenge, as we are charting new waters. The success of the regulatory framework could well be dependent on how this aspect is managed. A desirable outcome is to encourage and facilitate participation in the lawful regulated industry and discourage diversion to the illicit trade in cannabis. It should be noted that hemp, which has been defined as cannabis sativa with a THC concentration of no more than 1%, has been excluded from the overall legal regime relating to cannabis. Hemp is nevertheless subject to regulation by the Cannabis Licensing Authority. Conclusion Jamaica s reform of the law relating to cannabis in Jamaica represents a bold attempt to bring the law more in line with the conditions and expectations in our social context within the limits permissible under the international drug conventions to which we are party. The stimulus for recent cannabis reform was a mix of local societal considerations and global developments and trends. Some reform measures were primarily driven by human rights and constitutional considerations prevailing in the Jamaican environment while others were impelled by a desire to position Jamaica to be an important player in the medical marijuana and industrial hemp industries. It is early days yet, therefore one is not able to evaluate the impact of the reform, but I have given an indication as to the expected outcomes of particular measures. In closing, a few observations on the reform exercise, based on our experience, might be worth sharing. 1. As noted, the changes to the law on the treatment of cannabis were subjected to widespread public consultation and a deliberative process which helped to inform the content of the new law and to promote public acceptance. There is need for on-going public sensitization to dispel misunderstandings and misgivings on the part of various stakeholders. We have been doing this by way of the preparation of a Fact Sheet setting out in simple language the changes effected by the new law, Town Hall meetings and presentations to service clubs and other groups. 7

8 2. It is clear that the retraining and adjustment of the mindset of those responsible for law enforcement is essential, as they have been schooled in the strict approach dictated by the absolute prohibition on cannabis under the old law. In the early stages of implementation, concerns were raised as to practical application of the new provisions, such as how the police would be able to determine the quantity of cannabis a person has in his possession. Policy directives have been issued to address these concerns. A training programme has also been designed for the purpose of sensitizing the police as to the policy objectives of the new law, and the operating procedures to be applied in achieving these. It is expected that with time these initial fears and concerns of the police, and also the public, will subside and the police will apply their usual discretion and good sense in implementing the new law. 3. Another area of concern that has emerged relates to the issue of drug abuse, especially by adolescents, and some practical issues regarding the implementation of the new law by the police. These concerns have highlighted the need for the liberalization of the law to be accompanied by a comprehensive public education and harm-reduction programme targeting vulnerable persons, including young persons Many persons are of the view that our reforms do not go far enough, and that the restrictive treatment of cannabis under the convention does not accord with our socioeconomic realities and global developments and trends. However, Jamaica cannot move ahead of the Convention regime to which it is a party. Jamaica joins with other countries in the call for the review and revision of the Convention provisions. We believe that the one size fit all approach is not appropriate. Ultimately, Jamaica would like to see the Treaty system afford greater autonomy at the level of individual State Parties in the design of domestic policies and laws, especially in relation to cannabis. Our constitutional arrangements, and our social, cultural and historic conditions and traditions, require us to be able to fashion our own rules in this regard, in the interests of social justice and a coherent and inclusive society. 8