dangerous substance. Others point to the steel industry which faced competition from hemp. Even others place the illegalisation of marijuana , which before was a peace pipe associated with several ancient cultures, on the shoulders of race and social prejudices, an attempt to label, criminalise and oppress the Mexican and black races in the US.65 4.4. As to protecting individuals from harming themselves, some point out that many other natural substances are harmful and they are not criminalised, such as alcohol, tobacco and even cassava and ackee. As illustrated below, the lack of proportionality and human rights in the law and its administration also underpin the lack of trust in existing cannabis/ marijuana laws.
Moral and Ethical Issues – By-products of Criminalisation
4.5. The lack of a solid basis for prohibition includes the sparseness of a clear argument for illegality on moral grounds. Indeed, the issue of morality was seldom raised in the Consultations and this justification for the current law seems to be on the wane. It is apparent that whatever concerns remain about morality are predicated on the fact of the law being deemed illegal itself, that is, a by-product of the criminalisation. It does not appear to owe its existence to an independent concern. Rather, it is clear that our moral and ethical concerns spring from the classification of the substance as unlawful and banned. It has acquired an unsavoury character. It may well be that decriminalisation will correct this problem, in the same way that alcohol, demonised and leading to criminal gangs while under prohibition, was sanitised after it was legalised.
Current Status of Strict Liability Criminal Offences and Harsh Penalties
4.6. The laws making cannabis a criminal offence are substantially similar throughout the region and can be described as draconian. The main statutes are found in specific laws that outlaw all drugs or narcotics, with cannabis being named as a substance belonging to this category. In keeping with the requirements of the Conventions, cannabis is classified as a ‘dangerous drug,’ or narcotic, which means a substance with no medicinal, or other value. The legal regime encompasses wide prohibitions, from mere possession, to production, handling, supply, trade, trafficking, cultivation and even possession of “pipes, equipment or apparatus intended for use of marijuana.”66 4.7. 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 a discretion to determine conviction, since it does not depend on intent and mitigating circumstances are not applicable. The strict liability nature of the relevant offences has resulted in two paradigms, each of which is concerning. On the one hand, 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. 4.8. Significantly, some legislation goes a step further and imposes fixed, steep minimum, or mandatory penalties for conviction, which exacerbates the strict liability condition and the harshness of the law. A good example is the statute of Guyana which imposes minimum fines together with imprisonment for up to 10 years if convicted on indictment and up to 5 years on summary conviction.67 A similar provision is found in St. Vincent and the Grenadines.68 In fact, such laws contradict the spirit of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, which proposes alternatives to imprisonment for offenders convicted of possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption. Non-custodial sanctions suggested include education, rehabilitation and social reintegration, treatment, aftercare rehabilitation and social
Steven W. Bender ‘The Colors of Cannabis: Race and Marijuana’ University of California, LR, Vol. 50:689 See, e.g. s.9 of the Grenada statute, the Drug Abuse (Prevention and Control) Act, 1992 as amended 2011. 67 Narcotic Drugs and Psychotropic Substances (Control) Act chp.35.1 of Guyana. Marijuana is listed as a narcotic under the First Schedule. 68 The Drugs (Prevention of Misuse) Act of St. Vincent and the Grenadines does not provide for any alternatives with regard to drug offences, including possession, which is an offence punishable by terms of imprisonment of 3 years on summary conviction and a fine of EC$100,000, and 7 years, plus a fine of EC$200,000, on indictment. 65 66
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