5.43. On this matter, the Commission prefers to err on the side of caution and is of the view that there should be a total ban on driving while under the influence of cannabis/ marijuana. The length of time after usage when it could be considered safe would have to be determined.
Human Rights and Health
5.44. As discussed below, there is already case law in the US and Canada that hold that an individual has the right to cultivate and use cannabis/ marijuana for personal health reasons in her private home.127 Such precedents are persuasive in the region and the continued prohibition on home-grown plants, even small amounts, may well be deemed unconstitutional as the right to health becomes more entrenched. There is also the question of perpetuating a paternalistic law that takes health decisions out of the hands of citizens and according to law enforcement, cannot be effectively enforced. The lobbying for access to Medical Marijuana by a burgeoning number of CARICOM citizens points to this becoming an important constitutional and public health issue. This right to health is also related to the right to privacy and the relative inability of law enforcement to monitor small amounts of home-grown herbs, discussed below.
Comparative Harm re Other Substances
5.45. Instructively, for policy-makers desirous of re-designing a legal regime, the health risks for cannabis/ marijuana are significantly lower than tobacco or alcohol, neither of the latter being prohibited or criminalised. Cannabis‐related harm is reported to be concentrated among a limited group of high‐risk users. “At the levels and patterns of use reported by most adult cannabis users, the health risks are modest – significantly lower than tobacco or alcohol.” The incongruity of a law that prohibits cannabis, a substance apparently more benign that alcohol and other substances which are not illegal but impose more risks to individuals and societies, was pointed out in each Consultation held and several submissions. The table below lists the estimated intrinsic or inherent risks of six different drugs, rated along different dimensions of harm on a scale of 0 to 100 (with 100 representing the highest risk).”128 Lethality (death)*129 Damage to physical health Impairment of mental function
Alcohol 50 80 65
Tobacco 0
Cannabis 0
Amphetamines 0
Heroin 100
Cocaine/Crack 22.5
100
20
30
20
40
0
30
60
30
80
Further, the health risks of cannabis increase significantly with intensity of use; frequency of use is a strong predictor of cannabis‐related harms.130 Problems with cognitive, psychomotor, and respiratory functioning, as well as dependence and mental health problems, are all concentrated among people who use cannabis daily or near‐daily – an estimated 20‐30% of users.131
Views of Scientific/ Medical Community
5.46. Apart from the research data, the Commission received both written and oral submissions from the medical community in the Commonwealth Caribbean, including from the Faculty of Medicine, UWI, St. Augustine.132 They all recommended decriminalisation of marijuana to reduce both social harms and to promote an appropriate health strategy, with safeguards for children. Portugal and Israel models were cited as evidence of best practice, in contrast to the ineffective approach under prohibition, with potentially positive effects for public health. The Faculty of Medicine, UWI paper concluded:
Allard et al v. Canada [2016] F.C.J. No. 195[2016] 3 F.C.R. 303, 394 D.L.R. (4th) 694, Federal Court, Vancouver, British Columbia, discussed below. Cannabis Policy Framework, Centre for Addiction and Mental Health (CAMH), Canada, 2016, p.5. 129 Expressed as ratio of lethal dose and standard dose, ibid. 130 Fischer et al., 2011. 131 CAMH Study, Cannabis Policy Framework, above, p 5. 132 ‘MARIJUANA LEGISLATION – Review of the Social, Economic, Health and Legal Issues Surrounding Use’, Faculty of Medical Sciences the University of the West Indies St. Augustine, prepared by Dr. Sandra Reid MBBS, DM(Psych), MPH; Written submissions were also received from Dr. Stephen King, CMO, Saint Lucia and President of the RISE Foundation. 127 128
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