By RASHAD ROLLE
Tribune News Editor
rrolle@tribunemedia.net
A SUPREME Court judge rejected a challenge from the Rastafarian community on the constitutionality of laws prohibiting the possession and use of marijuana, even for religious purposes.
“I find nothing anti-democratic or anti-rights in Parliament’s decision not to make allowances for the religious or recreational use of marijuana,” Justice Lorein Klein wrote in his long-awaited judgement. “There are many democratic states (in fact, the vast majority of them) that still maintain general prohibitions on the possession and use of marijuana. Further, even those states which have reduced restrictions on marijuana for medicinal or recreational use, still exercise stringent controls, having regard, inter alia, to their international obligations under the various conventions.”
Lorenzo Stubbs brought the case after he was arrested in December 2021 when police found 1.6 ounces of marijuana at his home.
His case questioned whether Section 29(6) of the Dangerous Drugs Act, which relates to marijuana, is constitutional.
Justice Klein accepted that the Rastafari faith is a belief system serious, cohesive and important enough to be protected by Article 22 of the constitution, which guarantees freedom of religion. He also accepted the connection between using marijuana as a sacrament and the underlying belief system of the faith.
However, he said some matters should be left for legislators to decide.
“In my view,” he wrote, “to subject every law to a strict forensic analysis of what is reasonably required in the interest of public policy objectives or for the protection of the rights and freedoms of others would diminish and second-guess the prerogative of Parliament to make laws for the “peace, order and good government” of the State.
“This is not to say that the power to make laws, wide though it may be, is not subject to limitations, which are set by the constitution itself or which may be found in general principles of administrative law. But if a law seeks to achieve any of the constitutionally-enumerated public policy objectives or the protection of the rights of others, and its provisions are rationally connected to achieving those objectives, the courts should not be astute to find fault with or unravel Parliament’s legislative intent. Were it otherwise, the question of whether or not a law is reasonably required would be reduced in many cases to an adjudicative exercise that is dependent on the cogency of the evidence presented in an individual case, and judicial imprimatur.”
Justice Klein said the applicant failed to produce evidence showing how less repressive measures –– as opposed to the blanket prohibition against marijuana use –– would adequately protect the public’s interest.
“For example,” he wrote, “there is no evidence or other material before the court on any of the following matters: the nature and frequency of the religious ceremonies during which cannabis/marijuana is used; what quantities are required for sacramental use and who would control the dispensing; who would be eligible to use it; how the system would be administered to ensure that religious claims are not asserted as a pretext for the possession and use of marijuana for recreational or more nefarious purposes (including the drugs trade); and what mechanisms would be put in place for protecting adolescents or other vulnerable persons within the Rastafari community.”
“Even if I had concluded that the blanket prohibition on marijuana was not justifiable and therefore a constitutional breach, I would still have been constrained from making the declaration in the form pleaded by the applicant. This is because the declaration sought is that s. 29(6) of the DDA, without more, is unconstitutional. As explained, that section enacts a blanket prohibition on the possession of marijuana. For the court to make such a declaration would be to judicially legalise the possession of marijuana by anyone, which the court has no jurisdiction to do on the application before it. The real complaint of the applicant is not against the general public prohibition, but only that such prohibition should contain an exemption for religious use.”
In dismissing the application, Justice Klein made no order for costs, citing precedent against awarding costs in constitutional challenges brought in good faith.
Attorney Bjorn Ferguson represented the applicant.
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