8.4. Just recently, the right to a private life/ privacy was affirmed in the landmark Trinidad case of Jason Jones v The Attorney-General of Trinidad and Tobago,187 declaring the Sexual Offences Act null and void since the limitations to the right to privacy, equality . . . were “not reasonable justifiable in a society that has a proper respect for the rights and freedoms of the individual.” In the cannabis/ marijuana context, criminalising individuals for usage in the privacy of their homes strains the justness of the law as understood in recent jurisprudence. 8.5. Courts from the US and Canada have already ruled that laws which prohibit a person from homegrowing cannabis/ marijuana in order to use for self-medicating purposes, are not reasonably required and are unconstitutional. In the Canadian cases of Allard et al v Canada and R v Terrance Parker188 the courts have considered that laws prohibiting cultivation and possession for such purposes violate rights to liberty. They have held that to prevent persons from accessing a treatment by threat of criminal sanction constitutes a deprivation of his security of the person and infringes an individual’s security by interfering with his/her physical and psychological integrity. Section 7 of the Charter protected his right to make choices concerning his own body and control over his physical and psychological integrity free from interference by criminal prohibition. Given that the Trinidad and Tobago Constitution is modelled on Canada’s and other regional constitutions are similar, courts are likely to follow such precedents, especially in the light of the new data on medicinal usage.
Courts from the US and Canada have already ruled that laws which prohibit a person from home-growing cannabis/ marijuana in order to use for selfmedicating purposes, are not reasonably required and unconstitutional.
8.6. Notwithstanding the legitimacy of the human rights violations in these matters, litigation can and has failed because of the existence of saving law clauses in some of the countries in CARICOM, or in determining whether the relevant rights could be appropriately limited. Saving law clauses preserve existing preindependence law even in the face of violations of human rights contained in the various constitutions. This was the hurdle faced in the case of Forsythe v DPP and the AG of Jamaica,189 when a Rastafarian was arrested for the possession of ganja and dealing in ganja under the Dangerous Drugs Act. He contended that the Act contravened his constitutional right to the enjoyment of his freedom of conscience in the practice of his religion as a Rastafarian, since using ganja was a part of the sacrament and essential practices of his Rastafarian faith. The court dismissed the application on the ground that the Dangerous Drug Act had been saved by the Constitution and was enacted in the interests of public health. 8.7. Importantly, while the saving law clause obstacle has derailed some of these cases, it does not override legislative will and can be easily defeated should CARICOM and the respective Parliaments agree to change the law. This is because saving law clauses do not proclaim the human rights appropriateness of the challenged laws. Rather, they protect them from being overturned by the Courts on the grounds of unconstitutionality, leaving the change in law up to the Parliament. On several occasions courts have lamented that a particular challenged law violated the rights of citizens, but that they were powerless to
Claim No. CV2017-00720, decided April 12, 2018 (HC, Trinidad and Tobago). 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: “[282 I agree that the Plaintiffs have, on a balance of probabilities, demonstrated that cannabis can be produced safely and securely with limited risk to public safety and consistently with the promotion of public health.” In R v Terrance Parker, (2000) 146 C.C.C. (3d) 193, the accused, an epileptic who experienced frequent, severe and potentially life-threatening seizures, cultivated and possessed marijuana to self-treat his seizures when he was unable to access it lawfully. The court found that the prohibition against marihuana infringed his rights under s. 7 of the Canadian Charter of Rights and Freedoms. In order to protect the accused and others like him who needed to use marihuana for medicinal purposes, the trial judge read into the legislation an exemption for persons possessing or cultivating marihuana for their "personal medically approved use". On appeal, the Ontario Court of Appeal held that Parker's liberty interest under section 7 of the Charter was affected by the marihuana prohibition. The Ontario court also held that a blanket prohibition on possession was unfair and that of all of the drugs with potential therapeutic effects, marihuana stood out because it was subject to a complete prohibition, making it impossible for a physician to prescribe it. The court acknowledged that the state has an interest in protecting against the harmful effects of marihuana, such as psychomotor impairment; and possible long- term cognitive effects in children; Despite this, it held that a blanket prohibition on possession and cultivation of marihuana, without an exception for medical use, does little or nothing to enhance the state interest, if it deprives those persons of the drug who require it to maintain their health. 189 (1997) 34 JLR 512. 187 188
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