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Canadian law may signal way out of constitutional impasse

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Canadian approach: British academic and lawyer Nicola Barker

Canada’s approach to legal cannabis could offer clues for how Bermuda might navigate a constitutional impasse over introducing a regulated industry for the drug.

Nicola Barker, a British human rights and constitutional lawyer, said a solution could be in the works given the Bermuda Government’s commitment to constitutional reform.

Kathy Lynn Simmons, the Attorney-General, said in March that the Government would task a steering committee with drawing up recommendations to negotiate “a more fit-for-purpose constitutional model for Bermuda” with the UK.

Dr Barker spoke yesterday in the wake of last week’s statement by Rena Lalgie, the Governor, that she had “no choice” but to reserve assent on the Cannabis Licensing Act 2022.

The legislation, aimed at bringing the drug under regulation for recreational and other uses, appears to run counter to Britain’s obligations under international drug laws.

In her reasoning for reserving Royal Assent, Ms Lalgie said UK and Bermudian officials could work together on the issue.

Britain’s obligations on cannabis are laid out in the United Nations 1961 Single Convention on Narcotic Drugs.

Dr Barker, who has extensively studied Bermuda’s Constitution, reiterated that Canada, which legalised cannabis in 2018, was also a signatory to the convention.

She cited a 2017 research paper exploring avenues for Canada to “claim exemption from the treaties for recreational cannabis that may also apply to Bermuda”.

Dr Barker noted that the paper rejected making the claim that international human rights obligations included a right of access to cannabis.

But she pointed out that “obligations within the convention are subject to the jurisdiction’s constitutional law”.

Canadian legal research suggested an exemption could apply if the courts were to interpret “an existing right to use non-medical cannabis” – or if “the Constitution is amended to include a specific right to recreational cannabis”.

“Given that the Government have already announced constitutional reform, this may be the way forward for Bermuda.”

Legalising cannabis: an easy route?

A potential fix for the Government’s standoff with the UK over legal cannabis was highlighted last year by lawyer Peter Sanderson, who said a constitutional impasse could be averted through the Misuse of Drugs Act.

Mr Sanderson said the law “gives the minister responsible for drug prevention very broad powers to make any regulation” sidestepping criminal provisions under the Act for a drug such as cannabis.

“This effectively gives the minister the power to rewrite the Cannabis Regulation Bill as the Cannabis Regulations, and bring it into effect without any involvement whatsoever of the Governor or Britain.”

Mr Sanderson added: “If the Government is able to pass its cannabis reforms as regulations, then if the Governor – or anyone else – believed any particular aspects of the reforms were susceptible to legal challenge, then those aspects could be challenged in court, while allowing the main substance of the reforms to be implemented.

“I believe this could be a mature and sensible way to allow the Government’s democratic mandate to be respected without triggering constitutional crises or bids for independence.”

Dr Barker said a route might have existed through the courts if cannabis were argued as being “part of someone’s religious or non-religious belief”.

It could then be argued that criminal prohibition was unconstitutional under the island’s existing Constitution, she said.

“Such a judgment would have meant that legislation was unnecessary because the Bermuda courts have the power to strike down unconstitutional laws.

“Ironically, the Bermuda courts’ interpretation of the constitutional belief provision in the OutBermuda same-sex marriage litigation would have provided a key precedent enabling them to reach that decision on cannabis.”

But Dr Barker said that the Privy Council’s March ruling against a constitutional right to same-sex marriage “pretty much shut down the type of generous constitutional interpretation that would be needed for this argument to succeed – even if the Government had been prepared to wait for someone to bring such a case rather than legislate”.

Canada’s move to free up recreational cannabis was met with “regret” by the International Narcotics Control Board, which said it was “incompatible” with the country’s obligations under the 1961 Convention.

In an October 2017 statement directly after cannabis was legalised in Canada, the board said: “INCB maintains that by moving forward with the legalisation of cannabis for non-medical purposes in disregard of its legal obligations and diplomatic commitments, the Government of Canada has contributed to weakening the international legal drug control framework and undermining the rules-based international order.”

In the UK, the drug is legal for medical but not recreational purposes, and Dr Barker pointed to a 2018 BBC report that the UK had become a major producer and exporter of cannabis-based medicines.

Dr Barker added that she would “very carefully” watch the constitutional implications on Bermuda’s next steps.

Ms Lalgie said last week she would notify Elizabeth Truss, the UK Secretary of State for Foreign, Commonwealth and Development Affairs of her decision to reserve assent.

Bermuda’s Government in turn said it would wait for Ms Truss to state her position on the matter.

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Published May 18, 2022 at 7:42 am (Updated May 18, 2022 at 7:42 am)

Canadian law may signal way out of constitutional impasse

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