Lorenzo Stubbs v The Attorney General of The Commonwealth of The Bahamas
| Jurisdiction | Bahamas |
| Judge | Klein, J. |
| Judgment Date | 17 November 2021 |
| Docket Number | 2021/PUB/con/00001 |
| Court | Supreme Court (Bahamas) |
In the Matter of Article 22 of the Constitution of The Bahamas
And In the Matter of Article 28(1) of the Constitution of the Commonwealth of the Bahamas And In the Matter of Section 29(6) of the Dangerous Drugs Act
The Hon. Mr. Justice Loren Klein
2021/PUB/con/00001
COMMONWEALTH OF THE BAHAMAS
IN THE SUPREME COURT
Public Law Division
Constitution of The Bahamas — Fundamental Rights — Freedom of Religion — Rastafari faith — Applicant an adherent of the Rastafari faith, charged before the Magistrate's Court with possession of a small amount of Indian hemp — Dangerous Drugs Act (DDA), Ch. 228 — Possession said to be for religious purposes — Marijuana claimed to be used as a religious sacrament by Rastafari — Constitutional motion — Constitutionality of s. 29(6) of the DDA — Limitations on Fundamental Rights and Freedoms — Reasonably required for the protection of public health or safety — Reasonably justifiable in a democratic society — Article 30 (1) of the Constitution, “Savings Law Clause” — Whether DDA 2000 a saved law — Dangerous Drugs Act 1938, Ch. 12 — Approach to Constitutional adjudication — Evidence in support of Constitutional application — Need for legislative and adjudicative facts.
Mr. Bjorn Ferguson with Ms. Rhodreka Strachan for the Applicant
Ms. Cordell Frazer for the Respondent
[1] The criminal case out of which this constitutional motion arises concerns a charge before the magistrate's court for possession of a tiny quantity of the dried-out parts of a plant described in the statutory text as Indian hemp — an amount said to be about 1.6 ounces in weight and purchased for $60.
[2] Those simple facts, however, give rise to a far weightier question in the application before this court, namely: whether the freedom to manifest one's religion, which is guaranteed by the Constitution, trumps the prerogative of Parliament to make laws prohibiting the possession and use of substances considered harmful in the public interest, but which certain persons or groups consider are essential to manifesting their religious beliefs.
[3] The issue arises in the following way. Indian hemp is classified as a dangerous drug under the Dangerous Drugs Act 2000 (“the DDA” or “the Act”), the possession of which is banned, except for very limited scientific and medical purposes by authorized personnel.
[4] To the contrary, the applicant, who is charged with possession of Indian hemp, claims that the plant — which he knows (perhaps with greater botanical accuracy) as marijuana — is a ‘sacred herb’, used as a sacrament in manifesting his faith as a Rastafarian. He contends, therefore, that he has a constitutional right to possess and use it and, to the extent that the DDA does not contain an exemption for religious use, it is incompatible with his constitutional right to freedom of religion.
[5] By way of background, I start with a brief botanical and historical excursus.
[6] As indicated, what is criminalized under the DDA is “Indian hemp”. This is defined to include “all parts of any plant of the genus cannabis whether growing or not from which the resin has not been extracted; the resin extracted from any part of such plant; and every compound, manufacture, salt derivative, mixture or preparation of such plant or resin”.
[7] The plant that I suspect we are really concerned with, however, goes by the botanical name Cannabis sativa or Cannabis indica. In common parlance it is known as marijuana, ganga, pot, weed and hashish — although strictly speaking hashish is the resinous secretions obtained from the marijuana plant.
[8] While Indian hemp and marijuana both belong to the genus cannabis, they are in fact very different varieties of the hemp family. Marijuana was created by the selective cultivation of Indian hemp to produce plants containing a higher level of tetrahydrocannabinol (“THC”), the compound that produces psychoactive effects in humans. Hemp plants cultivated for industrial purposes only contain a tiny amount of THC. In fact, the level of THC present is often used to scientifically distinguish hemp (0.3% or less THC) from marijuana (greater than 0.3% THC). This distinction is not found in the DDA. It enacts a general prohibition on the possession of Indian hemp, whatever the level of its psychoactive component.
[9] Hemp has been lawful for millennia and was used in India and China for medicinal and other purposes for thousands of years. It is one of the most widely grown commercial crops in the world, and it is cultivated for a wide range of horticultural and industrial purposes. Modern therapeutic uses of the marijuana plant are said to include, among others, a role in reducing the side-effects of cancer treatment, and in treating glaucoma, epilepsy and multiple sclerosis.
[10] The manner in which hemp/cannabis became listed as a dangerous drug, both under the various international treaties and in domestic legislation, is also worthy of comment. It was not until the early 20th century, following the International Opium Conference at the Hague in 1925, that the international criminalization of Indian hemp began. In fact, according to some accounts, the decision to ban the import and export of Indian hemp at the 1925 conference was based on a claim by the Egyptian delegation (then grappling with an opium epidemic at home) that Indian hemp was as dangerous as opium, even though there was no scientific evidence to support this, and Hemp was not even on the conference agenda!
[11] At the time of the adoption of the 1961 United Nations Single Convention on Narcotic Drugs (see further below), the main active compound in cannabis had not even been established. As a result, cannabis and cannabis resin were listed alongside other known drugs, whose active compounds are specified, while “extracts and tinctures of cannabis” were included in the active compound table in lieu of a known active substance.
[12] For convenience, and for the purposes of this Ruling, I shall refer to Indian hemp, cannabis and marijuana synonymously.
[13] The facts which give rise to the criminal proceedings are not in dispute, save for two issues, neither of which is material to these proceedings. They may be gleaned from the affidavit of the applicant, filed 6 January 2021, and that of Corporal 3532 Danielle Brown, filed 22 June 2021. The latter also exhibits the police report of Constable 3620 Dormeus and the applicant's record of interview. I should mention that these “facts” are still matters to be determined by the magistrate, and they are only recounted here to provide the necessary background to the application.
[14] According to the police report, on 28 December 2020, police officers arrested the applicant at his home, #3 Casterella Street, Pinewood Gardens, and charged him with being “in possession of a quantity of dangerous drugs, namely Indian hemp”. This followed a search of the house based on information the police said caused them to become suspicious that drugs were being sold from the residence. It is averred that a search warrant was obtained for this purpose.
[15] Dormeus recounts that he and another officer breached the door after they identified themselves as police officers and got no response. He stated that he smelled a “high aroma” of marijuana emanating from the house once the door was forced open. The police sniffer dog, K-9 Rexo, apparently detected a scent leading to the kitchen near the dish drainer, where the officers discovered a clear plastic bag containing suspected cannabis. Six persons, all residents of the home, were cautioned and initially arrested in connection with this incident.
[16] As indicated in his record of interview and statement, dated 29 December 2020, the applicant took sole ownership of the substance and claimed that he possessed it for his religious and “personal” use. He was arraigned in the Magistrate's Court on 6 January 2021 before Chief Magistrate Joyann Ferguson-Pratt on the charge of possession of dangerous drugs contrary to section 29(6) of the Dangerous Drugs Act, which is punishable under section 29(2)(b) of the Act. He was granted police bail in the amount of $ 1,500.00, with one surety. It was represented to this Court that the criminal proceedings against him in the magistrate's court had been adjourned pending the determination of the constitutional application.
[17] The first factual dispute is that the applicant claims that the search of the premises was done without a warrant. The police on the other hand assert that they were in possession of a valid warrant. A warrant dated 28 December 2020 is in fact exhibited to the affidavit of Danielle Brown. However, no constitutional issue is being taken before this court as to the legality or otherwise of the search and so nothing turns on this issue.
[18] The second is the statement of the applicant (at paragraph 17 of his affidavit) that he had no previous convictions. This is contradicted in the Brown affidavit. There, it is averred that the applicant was previously convicted on 9 July 2014 before Magistrate's Court No. 8, after pleading guilty to possession of marijuana, for which he was placed on three months’ probation. It is indicated that the applicant, then 27, was found in possession of a marijuana ‘joint’ which was hidden in his turban, after being stopped on his motorcycle while enroute to Paradise Island for work.
[19] The issue of prior conviction is also not of any direct relevance to the constitutional claim, although the Crown seeks to exploit the failure of the applicant to mention his religious beliefs during the 2014 incident as indicative of a lack of sincerity in his adherence to Rastafari...
To continue reading
Request your trial