14. 07. 19
Amidst the changing global environment, the Caribbean Community (CARICOM) Conference of Heads of Government at a 2014 meeting mandated the establishment of a Commission to consider issues relating to the reform of the legal regimes regulating cannabis in CARICOM counties. National discussions concerning cannabis reform were invigorated in August 2018, after the publishing of a report by the Commission which called for an end to prohibition and draconian criminal penalties for cannabis possession. It found that the existing regime induced more harm than any possible adverse consequences of cannabis/ marijuana itself:
Cannabis/ marijuana has deep historical, cultural and religious significance to Caribbean peoples. It was introduced during the post-emancipation period to the Caribbean countries of Guyana, Jamaica, and Trinidad and Tobago by East Indian indentured labourers. For most of our history, cannabis/ marijuana was a free substance, grown naturally and easily throughout the region before the advent of prohibition, or, at least, its strict enforcement.
Cultivation and importation of marijuana was officially criminalized in 1913 under the Opium Law in Jamaica and subsequent legislation expanded the scope of prohibition. Criminalisation elsewhere in the region came in the 1930s pursuant to the 1937 Dangerous Drug Ordinance in the UK.
Significantly, the criminalisation of cannabis / marijuana in the Commonwealth Caribbean region was initiated without indigenous analysis or debate, but was merely an automatic, unquestioning response to international treaty formation on the subject, itself emerging un-endowed with scientific grounding. This change in legal status instantly criminalised Caribbean peoples who had hitherto used cannabis / marijuana without condemnation. These were responses to international treaty formation which deemed cannabis/ marijuana a “dangerous drug” without value. Harsh, criminal penalties were imposed on cannabis in all its forms within a context of strict liability. This led to the demonization of the substance and the criminalisation and imprisonment of many persons in the Caribbean, often for possessing small amounts of the substance and even when using for medicinal purposes.
Regardless, use of cannabis/ marijuana persisted in many societies. The World Drug Report (2017) noted that an estimated 183 million people consume it, making it the most extensively used illicit drug in the world.
In early 2015, amendments were made to the Dangerous Drugs Act in Jamaica, so that possession of two ounces or less is no longer an offence for which one can be arrested, charged and have to go to court. Jamaica has also opened the door for a regulated system of cannabis permits and licenses, as well as use for medical, therapeutic and religious purposes. Each household is allowed to legally cultivate up to five cannabis plants on its premises.
The marijuana industry is considered to be a multibillion-dollar one that if legitimized, could generate huge profits from tax revenues for nations. Jamaica has already begun to reap economic benefits. Notably too, Jamaica has consequently experienced a considerable drop in youth crime and juvenile delinquencies. Apart from this, legalization would provide opportunities for persons engaged in the marijuana business to enter into lawful employment and entrepreneurship as well as create prospects for additional jobs in the area of marijuana commerce. The Jamaica experience mirrors that of other jurisdictions such as Portugal, The Netherlands and The United States.
In May, The Cannabis Bill 2019 was introduced before the National Assembly in St. Kitts and Nevis which will provide the legal framework relating to the cultivation and use of marijuana for religious, medicinal and recreational purposes. Similarly, following a legal amendment to the Misuse of Drugs Act in Antigua and Barbuda this year, adults can possess less than 15 grams of cannabis and cultivate a maximum of four plants for personal use. The government also plans to legalize cannabis in the near future. In December 2018, cannabis was also decriminalized in St. Vincent and the Grenadines for medical purposes and scientific research. Other islands, such as Guyana and Suriname, have relaxed enforcement on people found with small amounts. Barbados Prime Minister Mia Mottley also announced plans last year to establish an administrative framework for a medical marijuana program.
In Trinidad and Tobago, the Attorney General recently announced that the drafting of the legislation for the decriminalization of marijuana has been completed and that is awaiting Cabinet’s approval before it can be sent to Parliament for debate. He revealed that the legislation would seek to amend the Dangerous Drugs Act and the Food and Drugs Act which both currently criminalize possession of marijuana. The legislation proposes decriminalization for possession of small amounts of marijuana and regulatory framework for production, distribution and consumption of medical marijuana.
Trinidad and Tobago – the law at present
Marijuana advocate and head of the Caribbean Collective for Justice (CCJ), Nazma Muller called on Prime Minister Dr Keith Rowley to implement an immediate suspension of marijuana arrests and put a stop to the destruction of lucrative marijuana fields; nevertheless, reports like these are still commonplace. The manufacturing, possession and selling of Cannabis is still illegal in Trinidad and Tobago. Marijuana is classed as a narcotic drug and psychotropic substance under the Dangerous Drugs Act Chap 11:25 – the legislation that governs possession and trafficking of marijuana and other dangerous drugs in Trinidad and Tobago. According to the Act: –
> A person guilty of the offence of having marijuana in his possession is liable upon summary conviction to a fine of $25,000.00 and to imprisonment for 5 years; upon conviction on indictment to a fine of $50,000.00 and to imprisonment for a term of 5 to 10 years.
> A person guilty of the offence of cultivating or producing marijuana is liable upon summary conviction to a fine of $50,000.00 and to imprisonment for 10; upon conviction on indictment to a fine of $100,000.00 or 10 times the street value where there is evidence of same, or to imprisonment for 25 years to life.
> A person found in possession of more than 1 kilogramme of cannabis or cannabis resin, is deemed to have the dangerous drug for the purpose of trafficking unless the contrary is proved, the burden of proof being on the accused. A person who commits the offence of trafficking is liable upon conviction on indictment to a fine of $100,000.00 or where there is evidence of the street value, 3 times the street value and imprisonment for a term of 25 years to life.
> A person found in possession of marijuana on any school premises or within five hundred metres thereof is deemed to have the dangerous drug for the purpose of trafficking, unless the contrary is proved. Persons guilty of this offence is liable upon conviction on indictment to a fine of $150,000.00 or 3 times the street value of the dangerous drug where there is evidence of same and to imprisonment for a term of 35 years to life.
> Furthermore, a person who is found in any house, room or place where marijuana is being illegally used is guilty of an offence and is liable upon summary conviction to a fine of $10,000.00 and to imprisonment for 6 months. Similarly, any person who occupies, controls, or is in possession of any building, vehicle or place in or upon which marijuana is found shall be deemed to be in possession thereof unless he proves that the dangerous drug was there without his knowledge and consent.
The police can stop and search any person, vehicle, and anything in or on the vehicle for certain items, but they must have reasonable grounds such as the smell of marijuana or suspicious behaviour by occupants for suspecting that they will find evidence. Outside of this, a warrant is required under Section 41 of the Summary Courts Act 1918, as amended. The police can become trespassers if they do not act within the law because without their legal powers, they are considered regular citizens as established in the case of Entick v Carrington . However, if a crime has occurred and the police have been given permission to set up a road block, they can stop and search you without having reasonable grounds for suspecting they will find the aforementioned items.
Social Justice and Human Rights Considerations
According to the CARICOM report, a common denominator in the region’s laws on cannabis / marijuana is the application of strict liability to offences of possession, usage, control, trade and related offences. This means that the judiciary is not given discretion to determine conviction, since it does not depend on intent and mitigating circumstances are not applicable.
Persons have received harsh penalties, including imprisonment, for having in their possession very small amounts of cannabis, leading to the concern that the law and its penalties are disproportionate. On the other, some law enforcement personnel, believing the law to be too harsh, have refrained from enforcing the law at all, preferring to turn a blind eye to any offences. This results in a violation of the rule of law and/ or having laws on the statute books which are de facto unacceptable and unenforceable.
In Trinidad and Tobago, the High Court decision in Barry Francis and Roger Hinds v. The State Cr. App. Nos. 5 and 6 of 2010 the mandatory minimum sentence of 25 years imposed for possession of a dangerous drug for the purpose of trafficking imposed by section 5(5) of the Dangerous Drugs Act was challenged by the appellants on constitutional grounds. As mentioned above, this section states that someone convicted of drug trafficking is liable to imprisonment for a term of 25 years to life, and to a fine of $100,000.00 or in default an additional 15 years imprisonment (40 years). The Court of Appeal identified some of the rights violated by the draconian cannabis / marijuana laws, when ruling on stiff mandatory penalties that left no discretion to the judiciary and were disproportionate to the offences:
The removal of such considerations from the sentencing process erodes the fundamental right to liberty and cannot be justified in any society which has a proper respect for the dignity of the human person and the inalienable right with which we all, as human beings, are endowed. Thus, a provision which indiscriminately applies a mandatory minimum penalty to all offenders, irrespective of the nature of the offence, the degree of culpability of the offender and the mitigating circumstances affecting him resulting in the offender serving a total of forty years imprisonment for one point one six kilogrammes (1.16kg) of marijuana, is so grossly unfair and offensive of the fundamental principles of justice and the rule of law, that it cannot be reasonably justifiable in a society which has a proper regard to the rights and freedoms of the individual.
Sentences are also inconsistent, example, 1.2 grams attracted 2 years imprisonment, while in another matter 1.16 grams was given 8 years of imprisonment, adjusted to 4 years. Poverty also hampers persons arrested from posting bail. In terms of sentencing, however, the most damning indictment of the current regime is its inherent inequality when compared to penalties for other criminal offences, in particular, victim-based crimes:
It is an unfortunate truism that otherwise law-abiding CARICOM citizens can receive a much harsher sentence, including imprisonment for many years, for possessing a single ‘joint’ of marijuana, a victimless crime, than a person convicted of wounding another with intent (even where death occurs) and similar serious crimes. Indeed, the latter person may even receive a non-custodial sentence if mitigating circumstances are found, an option not available to the marijuana user. The injustice of such sentences seems more acute when compared to sentences for non-drug criminal offences which have affected victims seriously.
The report also called for cannabis to be declassified as a dangerous drug or narcotic in all legislation and reclassified as a controlled substance. Cannabis is categorised as a narcotic or dangerous drug in exactly the same way as other substances such as cocaine, crack which are known to have much more harmful, even deadly effects. Indeed, many participants in the consultations argued that while cocaine and crack are harmful and should be outlawed, cannabis is incorrectly made equivalent to such substances.
The scientific evidence supporting the medical benefits of cannabis highlights the defective classification of cannabis / marijuana as a substance without medicinal or other value. This defect strains the credibility of the law and law enforcement efforts and should be rectified. Further, the incongruity of the harsh laws and inaccurate classification of cannabis / marijuana is exacerbated by the fact that other harmful substances are not similarly treated under the law, leading to claims of inherent unfairness and injustice in the legal system.