Comprehensive Cannabis Policy Review -- Bermuda -- Alan Gordon
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Comprehensive Cannabis Policy Review -- Bermuda -- Alan Gordon



Cannabis Policy Reform suggestions for the Bermuda Government's new Cannabis Reform Collaborative committee. Includes medicinal, recreational, and other considerations to repair what are the Western ...

Cannabis Policy Reform suggestions for the Bermuda Government's new Cannabis Reform Collaborative committee. Includes medicinal, recreational, and other considerations to repair what are the Western Hemisphere's toughest cannabis laws (Bermuda's).



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Comprehensive Cannabis Policy Review -- Bermuda -- Alan Gordon Comprehensive Cannabis Policy Review -- Bermuda -- Alan Gordon Document Transcript

  • 2nd January, 2014 Bermuda Cannabis Policy Reform: Medicinal and Recreational Considerations for the Bermuda Cannabis Reform Collaborative Committee Alan Gordon, BA, LLB 441-293-2538 NOTE: Some footnoted references refer to highly confidential sources of information who have been anonymized for privacy and legal reasons. If the Collaborative wishes further information and is willing to guarantee confidentiality, please contact the author for further information. Page 1 of 58
  • Table of Contents 1. Introduction 4 2. Medical Cannabis 6 Background 8 General Medical Cannabis 10 Supply Sources 14 Forms and Amounts of Cannabis 16 Reciprocity of foreign medical cannabis permits for visitors 16 Obligations to the UN and UK 18 Financial Costs/Benefit to Government 24 Patient-Physician Relationship Requirements 24 Conclusions 25 Specialised Medical Cannabis 27 Alternatives to Smoking 27 Refined Cannabis Oil for Cancer 28 “Medibles” -- Other Edible Cannabis Products 35 “No-High” Cannabis Medicine: THC vs. CBD 36 Specialised Medical Cannabis Conclusions 38 Medical Cannabis Conclusions [Contents continued next page] Page 2 of 58 39
  • [Table of Contents Continued] 3. Recreational Cannabis 41 Background 41 Options 42 Decriminalization (“De-crim”) 44 Legalization or Regulation 48 Treaty Compliance 48 Form of Regulation 53 Tourist and Other Visitors 54 4. Cannabis Myths De-Bunked 54 Lung Damage 54 Psychosis 55 Cannabis Myth Conclusions 56 5. Retroactivity: What About Those Already Criminalised? 57 6. Conclusions 58 Page 3 of 58
  • 1. INTRODUCTION Cannabis policy reform is occurring in increasing numbers of jurisdictions around the world. Bermuda, on the other hand, has possibly the Western Hemisphere’s strictest cannabis penalties. It is inadvisable for a tourism and international business centre to have such a policy affecting visitors, let alone inflict it upon our own people. Key areas for reform in Bermuda include: (1) Cannabis medicine; and (2) Removal/reduction of criminal penalty for possession and acquisition/supply, including: A. Draconian penalties for both personal possession and supply, B. Persistent racial disparity in cannabis law enforcement, C. Immigration hurdles to the US and Canada caused by petty criminal cannabis charges; and Page 4 of 58
  • Each topic will be addressed in turn, with several policy options offered. Full assessment of policy options leads to emergent but inescapable themes, specifically: A. Decriminalization of only personal possession (as opposed to legalization) is actually not even possible, due to Bermuda’s current legal structure; and B. Various types of legalization or regulation of possession/acquisition of cannabis must be assessed for United Nations (UN) Treaty compliance, because the required UK assent to Bermuda legislation will only occur if the UK’s UN Treaty obligations are substantially met; and C. Without a supply of Bermuda-grown medical cannabis (and not mere artificial synthetics), demand will lead to increasing health and safety risks, mistrust of government, and unlawful behaviour. In addition, there appears to be overwhelming popular support for controlled access to medical cannabis. If delays in access lead to suffering or loss of life, then immediacy is therefore both required and justified. The legal, medical and ethical distinctions related to cannabis policy are numerous and subtle. This painstakingly referenced report concisely addresses virtually all questions, topic by topic, and so Parliament and Cabinet are encouraged to learn as much as they can from it. The life-or-death immediacy inherent to medical cannabis reform gives that topic a heavy priority in the report, and readers are asked to thoughtfully judge these matters on the evidence presented and then seek immediate action for the sake of the suffering. Page 5 of 58
  • 2. MEDICAL CANNABIS Due to complex legal subtleties, this report recommends that the way forward on medical cannabis is for Parliament to choose between 2 options: A. Enact legislation either: (1) allowing the relevant Minister to remove cannabis and cannabis resins from the Schedule to the Misuse of Drug Designation Order 1973 (so that doctors and pharmacists may produce, handle and distribute it); or (2) directly removing cannabis (and its resins) from the Schedule and barring the Minister from restoring it; or B. Enact no legislation, but, within the existing exemptions for medical cannabis afforded the Minister through the Misuse of Drugs Act 1972 s.12, allow patients to either produce their own medical cannabis, or obtain it from caregivers and/or commercial growers, without requiring physicians and pharmacists to handle the drugs (since other medical marijuana jurisdictions rarely if ever require it). Within the latter broad stroke approach, Cabinet will have to devise a reasonable set of conditions for medical cannabis applications. The following section outlines options and considerations for such conditions. It is important to note that the Ministry of Public Safety has indicated1 that it will entertain applications for medical cannabis permits. 1 Dunkley, Hon Minister of Public Safety. Personal correspondence with the author and separately with Michael Brangman, as well as Facebook comments on Ruling Party OBA page in response to a query by Craig th Looby, 30 December 2013, retrieved the same date at alliance/ 561439153940141/? notif_t=group_ comment_reply. ; later deleted. Page 6 of 58
  • To date, no guidelines have been issued by which would-be applicants can predict success, placing an expensive, time-consuming and intimidatory burden on patients, many of whom are dying and have little time for repeated lengthy applications without any predictable chance of success. The current lack of published rules for successful medical cannabis permit applications is probably an unlawful omission. This is because, in the words of England’s highest Court (the House of Lords, now called the Supreme Court): “In our system of law, surprise is the enemy of justice”2, and "it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by statute.” 3 and “What must . . .be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.”4 The Ministry should allow the sick and dying a chance to see what rules they must abide by before those patients waste their dying gasps on applications which have invisible rules. It is strongly recommended that the Ministry should act lawfully, and not flagrantly contradict leading English case law from the House of Lords. 2 R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, per Lord Steyn at 622C. R (Salih) v Secretary of State for the Home Department [2003] EWHC 2273 (Admin) per Stanley Burnton J in p 52, as cited in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011) by Lord Dyson at p 36. 4 Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011) per Lord Dyson at p 38. 3 Page 7 of 58
  • Background: Cannabis medicine dates back thousands of years5. Its ancient origin, however, does not mean that herbal cannabis is too “primitive” for modern medical use -- a consensus has been achieved among both medical experts6 and patients7 that herbal cannabis is a valuable and effective medicine that modern science has not yet been able to match. Cannabis’ first recorded medical use can be found in the world’s oldest medical text, the 4700 year old pharmacopoeia of Chinese Emperor Shen Nung8. This ancient text reveals that cannabis was a useful but controversial medicine. Since that time, cannabis has been widely used as a medicine around the world for a wide range of ailments, typically with similar controversy. Other ancient examples of this medicine’s use and controversy include Middle Eastern archaeological and Biblical evidence, for example: A. Actual cannabis found in Biblical-era medical settings9,10; and B. Biblical depictions of a sacred plant medicine called in Hebrew “‫”וּקנֵה-בֹשׂם‬ ֶ ְ 11 (“kaneh-bos) ” , which closely resembles modern cannabis. The use and distribution of kaneh-bos was a source of great contention in scripture’s narrative story (whatever the plant’s botanical identity). 5 Mechoulam R. The cannabinoids: an overview: therapeutic implications in vomiting and nausea after cancer chemotherapy, in appetite promotion, in multiple sclerosis and in neuroprotection. Pain Research and Management. 2001 Summer; 6(2):67-73. 6 American Herbal Pharmacopoeia. Cannabis Inflorescence and Leaf QC. 2013. 7 Hazekamp A. The Medicinal Use of Cannabis and Cannabinoids—An International Cross-Sectional Survey on Administration Forms. Journal of Psychoactive Drugs. 2013;45:3. 8 Hui-Lin L. (1975) in Cannabis and Culture, ed Rubin V(Mouton, The Hague), pp 51–62. 9 Zias J. Cannabis sativa (Hashish) as an effective medication in antiquity: the anthropological evidence. In: Campbell S, Green A, editors. The archaeology of death in the ancient near east. Oxford, UK: Oxbow Books; 1995. pp. 232–234. 10 Zias J, et al. Early medical use of cannabis. Nature. 1993;363:215. 11 Exodus 30:23 JPS Hebrew Bible. Page 8 of 58
  • Western use of cannabis as medicine was accepted and widespread from the 1850s through the 1930s12. Its use stagnated, however, with the advent of modern chemistry, which coincided with general bans on cannabis and general medical/popular disfavour of herbal remedies compared to patented synthetic medicine. In 1941, cannabis was removed from the US Pharmacopeia13, signalling the end of an era of cannabis use in Western medicine, until the contemporary era. Cannabis medicine’s popularity re-surged from near-total latency in the 1990s, as underground cannabis users, armed with a relatively new internet, began sharing anecdotes about cannabis’ medicinal benefits with physicians, friends and the general public, while increasingly larger jurisdictions voted in referenda to allow it. This 1990s shift culminated in the USA’s most populous State, California, legalizing home production of medical cannabis in 1996, and Canada’s most populous province, Ontario, legalizing it in 2000. This upsurge, in turn, sparked 20 other US States, plus Washington DC, as well as France, Italy, Germany, Spain, Switzerland, and other jurisdictions to legalize medical cannabis to varying degrees. The end result has been a chain reaction spawning popular demand for legal access, legal changes, and new medical research, which has exploded into an industry unto itself, in terms of the volume of publications and available research funding. Bermuda is encouraged to capitalize on this new economy. 12 Grinspoon L. History of Cannabis As a Medicine. Expert Witness Statement in Craker v United States th Department of Justice, Drug Enforcement Agency, Volume 1, 16 August 2005. 13 Ibid. Page 9 of 58
  • General Medical Cannabis While no reasonable person supports a blanket ban on prescription of any cannabisbased medicines, “medical cannabis” typically refers to herbal, not pharmaceutical products, and so public demand is far broader in scope than just cannabis-based patented commercial products. Lawful medical cannabis access (via a doctor’s recommendation) in Bermuda appears to be overwhelmingly supported, based on: A. preliminary informal surveys in Bermuda14; and B. 80+% popular support in the US15; and C. 72% support by physicians in the US and Canada16. Licensed consumers of medical cannabis products have made clear in international surveys that real cannabis outperforms its industrial pharmaceutical counterparts17. Modern science has simply not yet devised any way to separate most of cannabis’ medical effects from the “high” (euphoria) which policy-makers have been so keen to prevent. One reason for this is that with whole herbal cannabis, patients have been able to select cannabis varieties which tailor effects to the specific ailment and personal genetic factors, in ways which synthetic cannabis-like prescriptions have been unable to achieve18. Many jurisdictions’ doctors and policy makers (often one and the same) have fallen far behind their own patients’/constituents’ knowledge of plant varieties and their respective medical effects, and could learn more from observing underground patients than from drug prevention or medical textbooks. 14 Future Bermuda Alliance. Survey collected 15th Sept 2013 in hard copy, later via www. Sanger, G. High Support for Medical Marijuana. ABC News Poll. Jan 13 2010. 16 Adler J, Colbert A. Medical Use of Marijuana -- Polling Results. New England Journal of Medicine; 36:e30. th 30 May 2013 17 Hazekamp A. The Medicinal Use of Cannabis and Cannabinoids—An International Cross-Sectional Survey on Administration Forms. Journal of Psychoactive Drugs. 2013;45:3. 18 ibid 15 Page 10 of 58
  • As with any medicine, cannabis’ patient desirability causes concern among physicians and policy makers, owing to fears that patients simply prefer getting “high” to the actual medical benefits. It is unfortunate that physicians and policy makers, fearing cannabis’ pleasurable effects on patients, commonly reject medicines which patients say have the best medical effect, and go against a patient’s wish by only allowing access to forms of cannabis medicine which patients feel are not effective. Bermuda’s medical cannabis policy has aggressively guarded the threshold between: A. on one hand, patients’ desire for inappropriate drugs which make the patient “feel good” but sicken rather than heal the patient; and B. on the other hand, a patient’s legitimate desire to feel better. Given cannabis’ recognised medical utility, its propensity to make some patients feel well should not become an excuse to ban its medical use. This has reached absurd levels in which: A. One Bermuda government Medical Officer was heard to say that even if the public voted with over 80% support to allow herbal medical cannabis, doctors must still exercise legal powers to ban its use19; and B. Bermuda’s Chief Medical Officer has stated that not even terminal patients should be allowed to self-administer cannabis20 (despite the fact that doctors and pharmacists, but not patients, are banned from even getting special permits to administer cannabis in Bermuda21). No physician or policy-maker has been entrusted with the moral duty to unilaterally override the wishes of such an overwhelming majority of the public, and this must be avoided. 19 Anonymous retired Bermuda Government Medical Officer in personal conversations with the author, October 2013. 20 Peek-Ball, C. Correspondence to Michael Brangman, viewed by the author, date unknown. 21 Schedule to the Misuse Of Drugs (Designation) Order 1973, referencing Section 12(3) and (4) of the Misuse of Drugs Act 1972. Page 11 of 58
  • This second-guessing by untrained physicians and politicians has led to ironic situations in which: A. Cynical decision-makers claim the intoxicating properties of THC in herbal cannabis make its medical value not worthwhile; B. THC itself, however, is prescribable in patented pill form -- notwithstanding policy-makers’ complaints that it is too dangerous when in herbal cannabis. Patients persistently complain that these legal THC pills not only get them “too high” but also that they fail to alleviate symptoms for which they were prescribed, and that the effects of the pills vary wildly from dose to dose (due to inconsistency in absorption)22, and yet policy makers are comfortable with THC’s “high” so long as it is patented (i.e. not in herbal form). C. Nay-saying policy-makers insist that only pure patent-protected THC can be used, and that raw cannabis’ numerous components (outperforming synthetics in every patient test23) are too non-standard to be allowed. Critics have noted that incorrect medical decisions, made under the demonstrably false/errant guise of public or individual health and safety, have reduced the effectiveness of patients’ health care in favour of a system of patent protection for corporate prescription medicine24. Allegations that pharmaceutical profits have compromised medical integrity are not fanciful flights of conspiracy-minded imagination -- in fact the opposite is true, for example, Bermuda-based pharmaceutical industry giant Novartis recently paid hundreds of millions of dollars in fines for giving illegal kickbacks to health care professionals for prescribing mis-marketed drugs, sometimes attempting to hide these payments from regulators via increasingly ridiculous prizes and awards 25,26. 22 Hazekamp A. The Medicinal Use of Cannabis and Cannabinoids—An International Cross-Sectional Survey on Administration Forms. Journal of Psychoactive Drugs. 2013;45:3. 23 Ibid. 24 Aggarwal S. Adequate and Well-Controlled Studies Proving Medical Efficacy of Cannabis Exist but are th Ignored by Marijuana Schedulers. 15 April 2013; The Huffington Post. 25 rd Vaughan B. US Sues Novartis, Alleging Kickbacks to Pharmacies. Reuters. 23 April 2013. 26 Volkov, M. Anti-Kickback Laws, False Claims and Recidivists. Corporate Compliance Insights. 7th June 2013. Page 12 of 58
  • Policy makers and medical authorities may be unwitting participants in the profitdriven compromise of patients’ health care, since medical authorities’ training and textbooks have been funded primarily by pharmaceutical interests who stand to gain. Policy makers around the world, in turn, have deferred not only to the misled medical authorities, but also to direct lobbying from the pharmaceutical interests who will profit27. It is no wonder that the industry’s policy proposals sound so seductively sensible and official to policy-makers, despite lapses in factual or legal credibility -- the industry has the best-paid physicians and marketers. Such a system is unlikely to be deliberately cruel or unfair, yet publicly appears corrupt, whether or not any party’s intentions are. When individual corporate profits trump health care, such appearances will exist. It is inadvisable for the Bermuda Government to adopt a stance giving the appearance of economic corruption of Bermudians’ health care interests. For this reason, and as a matter of compassion, primary or secondary legislation (reasonable in scope) should be promptly enacted in order to allow patients to access medical cannabis via a set of publicly accessible rules. When considering how to implement medical cannabis law access, factors which must be considered include: 27 Aggarwal S. Adequate and Well-Controlled Studies Proving Medical Efficacy of Cannabis Exist but are Ignored by Marijuana Schedulers. 15th April 2013; The Huffington Post. Page 13 of 58
  • A. Supply Sources Should patients be allowed to grow? Patient home grows are allowed by 14 of the 20 US States allowing medical cannabis28. Should only patients be allowed to grow? Or, should Bermuda follow the model used in some US States like California29 and Maine30 in which patients who are too sick to grow are allowed to nominate qualified caregivers to grow for them? Of the 15 US States which do allow patients to grow, only one, New Mexico, disallows caregivers from growing on sick patients’ behalf31. Should patients be denied the ability to grow, and instead be restricted to licensed commercial vendors only, like in Canada32 and Illinois33? In jurisdictions where governments or government vendors produce medical cannabis, deficient government and/or contractor expertise in site selection, growing, curing, handling, storage, shipping and cannabis variety selection have led to serious toxic contamination problems, specifically: (1) Fertilizers; and (2) Lead and arsenic; and (3) Bacteria; and (4) Mould34 (all of the above); and (5) Pesticides35 28 Marijuana Policy Project. The Twenty States and One Federal District With Effective Medical Marijuana Laws and a 21st State With a Research-oriented Program and a Limited Defense. Summary of State Medical th Marijuana Laws. WWW publication accessed 29 December 2013 at 29 California Health and Safety Code, Section 11362.5 (b)(1)(A) 30 Maine Medical Use of Marijuana Act. Maine Revised Statutes, Title 22 §2423-A.1.B. 31 Marijuana Policy Project. The Twenty States and One Federal District With Effective Medical Marijuana Laws and a 21st State With a Research-oriented Program and a Limited Defense. Summary of State Medical Marijuana Laws. WWW publication accessed 29th December 2013 at MMJLawsSummary.pdf. 32 st The Canadian Press. Medical marijuana users worry about prices as market expands. CBC News Canada.21 December 2013. 33 State of Illinois, Compassionate Use of Medical Cannabis Pilot Program Act Ss 25 (g) and (h) 34 Canadians For Safe Access. Open Letter of Concern for the Health and Safety of Canada's Medicinal Cannabis Community. 1st January 2005. Page 14 of 58
  • It is recommended that any medical cannabis produced by government or commercial sources be subject to strict controls regarding: (1) Potency; and (2) Purity (specifically regarding moisture/mould, fertilizers, pesticides and fungicides). This will require an on-island gas chromatography or mass spectrometry device and trained operator capable of generating timely test results, for which vendors should pay. If Government wishes to avoid this avenue of employment and revenue, private industry will likely take it upon themselves, as a way to boost marketability. It is also recommended that commercial producers, whether governmental or private enterprise, offer consumers an independent lab test showing potency expressed with (at a minimum level of detail) a ratio of tetrahydrocannabinol (THC) to cannabidiol (CBD) percentages, in order to help patients and doctors identify which cannabis variety will work best with minimal unwanted effects, for a given patient’s condition. This, too, will require an on-island gas chromatography or mass spectrometry device and trained operator capable of generating timely test results, for which vendors should pay. If Government wishes to avoid this avenue of employment and revenue, private industry will likely take it upon themselves. For personal use growers and/or non-commercial “caregiver” growers, it is recommended that guidelines be issued for cannabis cultivation/storage safety, but that purity be left to the producer rather than to regulators, as per the models used by jurisdictions allowing patients and or (when too sick to grow for themselves) nominated caregivers. 35 th Shepherd M. Main Medical Marijuana Company Fined $18,000 for Using Pesticides. 6 December 2013; Portland Press Herald. Page 15 of 58
  • B. Forms and Amounts of Cannabis Will only smokable cannabis be permitted, or will edible and/or topical preparations (such as concentrated resins/oils, diluted oil infusions, baked goods, candies, tinctures, and salves) also be allowed? It is not recommended that edible products be banned, since smoking is generally dis-recommended as a matter of common sense. If edible products are allowed, rules should be in place to safeguard the material (which may look and taste like ordinary foods) via strong warning labels and child-proof storage areas. Concentrated cannabis oil products (see below), edible or otherwise, are in increasing demand, and given the growing wave of cannabis oil cancer treatments, outright bans on such products are not likely to be heeded. Likewise, Bermuda will need to set limits to the amount of cannabis a patient (or provider) may have. US States allowing medical cannabis allow as much as 1.5 pounds (Oregon and Washington) and an additional 30 plants (Oregon)36. C. Reciprocity of Foreign Medical Cannabis Permits for Visitors How will Bermuda deal with foreign prescription holders? Many jurisdictions honour foreign cannabis prescriptions, often by treaty. As a matter of expediency, however, it is recommended that any Bermudian reciprocity be restricted to, on one hand, allow mutual prescriptions, but on the other, to deny medical cannabis imports/exports. 36 Marijuana Policy Project. Key Aspects of State and D.C. Medical Marijuana Laws. State-by-State Medical Marijuana Laws. WWW publication accessed 29th December 2013 at Medical-Marijuana-Grid.pdf . Page 16 of 58
  • In such a system, if a foreign patient’s prescription is deemed up to Bermuda standards, he would simply purchase his material here, in order to maximise Bermudian capital influx and minimise travel/shipping problems. Likewise, patients holding Bermuda prescriptions, travelling to other medical cannabis jurisdictions, should simply obtain new medicine while there, since it is almost certain to cost less, owing to high Bermudian agricultural production costs rendering Bermuda-grown cannabis 5-10x the price of its US and UK equivalent 37,38. For those visitors seeking medical cannabis here, whose home jurisdiction’s prescription process is not up to Bermuda standards, it is recommended that patients seeking to purchase cannabis here provide their medical records and application to the Health Department for a local prescription, in advance of travel, along with a processing fee. A www site explaining the procedures and non-compliance penalties should suffice to stem rule-breaking -- visitors’ motivation for compliance will be high if medicine can be lawfully procured here. This would mirror Bermuda’s current policy with regard to foreign guests’ prescription methadone -prescriptions are honoured, but cannot be imported, and methadone must be acquired on-island instead. With regard to concern that Bermudian medical cannabis might escape our borders to the US, Canada or England, that will simply not be a problem for two reasons: (1) Even illegal US, UK or Canadian cannabis is less expensive than legal Bermudian medical cannabis would be (owing to higher production costs in Bermuda), dramatically reducing smuggling pressure; and (2) Cannabis smuggling has always been into Bermuda (from the US, Canada and UK), and not the other way around -- perhaps owing to a simple matter of cost. 37 38 th THQM. Pot Prices October 2013. High Times. 24 October 2013. th Independent Drug Monitoring Unit. Imported Bush. Cannabis Prices 2011. WWW site accessed 29 December 2013 at Page 17 of 58
  • There is simply no practical risk of medical cannabis being smuggled out of Bermuda, as there would be no advantage to doing so. Parliament is urged to allow limited prescription reciprocity, with an eye towards basic economics. D. Obligations to the UN and UK The United Nations (UN) bans cannabis by Treaty in most member states39. It is recommended that Bermuda avoid a compliance fight with the UK and the need for the Governor’s assent to new legislation by expanding the Ministerial negative resolution power discretion granted40 to the removal of cannabis and cannabis resins from the Schedule to the Misuse Of Drugs (Designation) Order 1973 (“the Order”) of drugs to which s 12(4) of the Misuse of Drugs Act 1972 (“the Act”) applies. At present, the relevant Minister has the power to grant exemptions for production and supply of medical cannabis to anyone but a licensed practitioner or pharmacist (whom may not be allowed to manufacture, possess or distribute or administer cannabis, owing to a prior designation). In a nutshell, the UK will not grant its assent to legislation which allows cannabis, even for medicine, more widely than the UN treaty ban entails. It is therefore advisable to proceed wherever possible under Ministerial discretion afforded in domestic law, which (unlike primary legislation coming from Parliament) is not subject to UK approval. Cannabis and related product bans may be exempted for patients by Ministerial discretion, but were previously removed from Cabinet’s ability to make case-by-case doctor-and pharmacist exemptions. This means that the relevant Minister may not grant exception to health care professionals except for research, under s 12(4) of the 1972 Act, now that cannabis has been designated in such a fashion by the Schedule to the Misuse Of Drugs (Designation) Order 1973. Nowhere, however, is the Minister prevented from making allowances for patients. 39 40 Articles 19-21, 28 (referencing Article 23), 30-31, United Nations Single Convention on Narcotic Drugs, 1961. Misuse of Drugs Act 1972, S 12. Page 18 of 58
  • Many states, in fact, do not allow doctors and pharmacists to handle medical cannabis (since they are not trained or licensed to deal with herbal remedies), but instead allow only patients and suppliers to handle it. If Parliament wishes to restore the medical profession’s ability to be granted case-by-case exemptions by the Minister, Parliament will have to either: (1) Grant a new power to the relevant Minister: the authority to remove cannabis, via negative resolution power (in which it becomes law if Parliament does not specifically object) from the list of substances for which the Minister may not grant exemptions (a list which the Minister currently has the power under the Act’s section 12(4) to enlarge, but not to diminish); or else (2) Parliament will have to remove cannabis and its resins from the Schedule to the 1973 Order of drugs to which s. 12(4) of the 1972 Act applies. It might be simpler just to leave it alone, and cut doctors and pharmacists out of the loop of handling medical cannabis, and leave their role as pre-requisite advisory capacity, as most other jurisdictions do. The UN Single Convention of Narcotic Drugs 1961 (“the Treaty”) has specific exemptions for licensed medicine41 which must be legislatively heeded, owing to the UK’s likely refusal to grant assent to legislation which does not materially comply with the Treaty to the degree found in other countries. Due to the Treaty -- which binds the UK, and Bermuda by extension -international shipment of medical cannabis is tremendously burdensome42, and so importation efforts are dis-recommended due to complexity and associated administrative cost. No jurisdiction ships medical cannabis. Further, cannabis, a perishable produce, degrades in shipping -- when this is considered with the burdensome treaty obligations factors, importation seems an unwise, expensive, and unreasonably restrictive (for patients) policy direction. 41 42 Articles 2.5(b), 4 (c), 22.2, United Nations Single Convention on Narcotic Drugs, 1961. Articles 18.1.(d) and 18.2, 19.2(b), 20.3, 21.4, and 31 Page 19 of 58
  • With importation of foreign cannabis impracticable, domestic production is the only other option. Bermuda is an Overseas Territory of the UK, and the UK is required by UN Treaty to provide the UN with records of all cannabis grown for medical purposes43. In order for the UK to do so, Bermuda would presumably be required to present that information to the UK Foreign Secretary. Other countries’ compliance with medical cannabis treaty obligations varies by degree. This is important to note because the US and UK (both of which are UN policy-driving superpowers), as well as other countries, often fall far short of their cannabis treaty obligations, thereby lowering the compliance threshold Bermuda must meet. Treaty compliance by those UN member States, especially the UK, sets the minimum scope of the degree of compliance to which Bermuda must adhere. In the wake of Uruguay’s recent outright legalization of cannabis, in which individuals may grow personal amounts even non-medically, and the government sells commercially, the UN anti-cannabis treaty has recently featured in the news. Uruguay’s formal response44 to UN criticism has been twofold: (1) Accusing the UN of hypocrisy for not going after the United States, Sweden, Denmark, the Netherlands and other jurisdictions allowing unreported recreational and/or medical use. (2) Pointing out that the UN ban has in no way stifled cannabis, and has merely led to criminal gang activity. Uruguay has neither suffered, nor is it expected to suffer, trade sanctions over the issue. Nor have the Netherlands, US, or other places with limited or unbridled supra-legal cannabis legalization, even for recreational purposes, in prima facie violation of the Treaty. It is submitted that Bermuda’s Treaty compliance, with regard to medical cannabis, need not exceed that of the US, to say nothing of the Netherlands, Italy and Uruguay. 43 44 Articles 23 28 (referencing Article 23), United Nations Single Convention on Narcotic Drugs, 1961 th El Presidente de Uruguay, Jose Mujica and Senator Lucia Topolansky. Television interview on Canal 4, 13 th Dec 2013, cited in 'Stop lying': Uruguay president chides UN official over marijuana law, RT, 14 December 2013. Page 20 of 58
  • In order for any UN sanctions to be issued against any State, they would have to be approved by the UN Security Council, without any vetoes by the Permanent Five (P5) members. This is highly unlikely, given that: (1) the US, a Security Council P5 member (and both the original author and the main proponent of the cannabis ban) allows medical and even recreational cannabis without UN Treaty reporting and custody compliance, in US States which have legalized it -- the US would therefore be politically hard-pressed to pressure either the UK or Bermuda on the matter; and (2) Much of the cannabis and cannabis resins (hashish) entering Bermuda comes from the major transhipment points of the US and UK (both in the Security Council’s P5); on the other hand it is highly unlikely that cannabis flows from Bermuda to those jurisdictions. This is a simple matter of cost: Bermuda street cannabis is easily 5-10 times more expensive than the same material in the US45 or UK46, and so smuggling cannabis out of Bermuda would not be financially feasible even if it were risk free. Given the direction in which cannabis flows, neither the US nor UK are in a position to complain, as the border security hazard has always been Bermuda’s alone, without effective protection from the jurisdictions which ship their illegal cannabis to us. Complaint from the US or UK, therefore, would be absurd and embarrassing to them. It is advised that UN obligations regarding medical cannabis are of minimal import, yet the UK, however, will predictably refuse to grant assent to any Bermudian legislation which seems likely to bring the UK afoul of its treaty obligations. 45 46 th THQM. Pot Prices October 2013. High Times. 24 October 2013. th Independent Drug Monitoring Unit. Imported Bush. Cannabis Prices 2011. WWW site accessed 29 December 2013 at . Page 21 of 58
  • The UK does not allow home-grown medical cannabis, and the drug’s lawful medical use at present is limited to a single prescription product from a single company, for a very limited number of illnesses, and which is notoriously expensive and difficult to obtain47,48. This strict approach has been heavily criticised 49,50 but has not changed -- although England, unlike Bermuda, occasionally exercises discretion to allow prescription holders to import and declare foreign medical cannabis, without arrest or seizure51,52. Any UK refusal to grant assent to the overwhelming wishes of the Bermudian populace can would be absurd, because of: (1) The conflict of interest inherent in the UK policy, which denies medicine to all patients unless funnelled from a single vendor with deficient supply, with only one strain of cannabis, at several times the already inflated price of illegal street cannabis53; and (2) The UK already suffered withering international criticism for applying cannabis bans at all, when it fired its top cannabis researcher for disobeying a gag order to not tell the truth about the drug’s relative harmlessness54,55 -- the UK cannot afford more of this criticism if it expects to maintain public credulity; and (3) The denial of the fundamental right to self-determination, should the UK refuse to grant assent to such an overwhelmingly backed (estimated 80+% popular support, see above) Act of Parliament, would be politically damaging for the UK. 47 th United Kingdom Cannabis Internet Activist. “GW Pharmaceuticals”. WWW site accessed 29 December 2013 at 48 Reynolds P. GW Pharmaceuticals And The UK Home Office – Corruption On A Grand Scale. CLEAR www site, 24th Jan 2012, accessed 29th December 2013 at 49 Aggarwal S. Adequate and Well-Controlled Studies Proving Medical Efficacy of Cannabis Exist but Are Ignored by Marijuana Schedulers. 15th April 2013; The Huffington Post. 50 Reynolds P. GW Pharmaceuticals And The UK Home Office – Corruption On A Grand Scale. CLEAR www site, th th 24 Jan 2012, accessed 29 December 2013 at 51 th McCollogh S. About CLEAR and that “Legal Medical Cannabis” claim… 17 October 2013; Sarah McCollogh th .com. Blog WWW site viewed 29 December 2013 at . 52 Reynolds P. Legal Medicinal Cannabis in Britain ACHIEVED! 14 September 2013; CLEAR www site viewed 29th December 2013 at 53 Ibid. 54 Tran M. Government Drug Advisor Dr. David Nutt Sacked. 30th October 2009; The Guardian. 55 Aggarwal S. Adequate and Well-Controlled Studies Proving Medical Efficacy of Cannabis Exist but are Ignored by Marijuana Schedulers. 15th April 2013; The Huffington Post. Page 22 of 58
  • In light of these factors, and while popular support for medical cannabis access is so overwhelming (over 80%, see above), the UK will predictably not wish to be seen engaging Bermuda in a fight over medical cannabis access for dying patients (see “Cannabis and Cancer”, below). International news coverage of such a dispute would make the UK’s favouritism of corporate protectionism, at the expense of human life, look like lethal bullying for the sake of profit protection for a single English corporation. Regardless, if UK assent to medical cannabis legislation is not forthcoming, then it is not strictly necessary, anyway. This is because the power to exempt cannabis production, distribution and possession/use from criminal penalty (except for doctors and pharmacists) has long been granted to Bermuda’s Cabinet, as a matter of Ministerial discretion, by Section 12 of the Misuse of Drugs Act 1972. While the Schedule to Misuse Of Drugs (Designation) Order 1973 (unless amended) bars the Minister from giving exemptions to doctors and pharmacists, patients and laypersons may still be granted exemptions under domestic law. Using Ministerial discretion alleviates the problems associated with adopting the UK model and importing their sole product. Importation of the licensed English product, while it might be helpful in some cases, is insufficient for 4 reasons: (1) The product is simply not the right type or amount for many patients and ailments -- it is over-limited in terms of cannabis type and delivery methods (under the tongue spray, as opposed to edible, inhalable or topical preparations), directly contradicting global patient surveys56 about effectiveness; and (2) Importing the product into Bermuda entails unacceptable delays obtaining UK export/import permission; and (3) The product in England, before importation, is prohibitively expensive57 for patients and insurers; and (4) Supply appears to be severely limited58. 56 Hazekamp A. The Medicinal Use of Cannabis and Cannabinoids—An International Cross-Sectional Survey on Administration Forms. Journal of Psychoactive Drugs. 2013;45:3. 57 Reynolds P. GW Pharmaceuticals And The UK Home Office – Corruption On A Grand Scale. CLEAR www site, th th 24 Jan 2012, accessed 29 December 2013 at Page 23 of 58
  • Exercising Ministerial discretion to allow domestic manufacture of cannabis, via publication of clear guidelines and conditions, seems the path of least resistance, requiring neither (1) new legislation; nor (2) UK assent; nor (3) reliance on sources which are impracticable non-options. E. Financial costs/benefit to government Licensure and enforcement of cannabis patients and commercial/noncommercial growers will entail labour costs to Government, from registration to inspection. It is recommended that these costs should be offset by licensure application fees. Structured correctly, these could be revenue generators. F. Patient-Physician Relationship Requirements If allowing medical cannabis on a prescription or doctor’s recommendation basis, Bermuda will have to decide how burdensome such requirements should be. Some jurisdictions (such as Illinois59 and Arizona60) limit prescriptions to specific medical conditions, most often including cancer, MS, Parkinson’s, lack of appetite, glaucoma, lupus/Crohn’s disease and other serious ailments. 58 th United Kingdom Cannabis Internet Activist. “GW Pharmaceuticals”. WWW site accessed 29 December 2013 at 59 State of Illinois. Compassionate Use of Medical Cannabis Pilot Program Act, Section 10 (h) 60 Arizona Revised Statutes, Title 36 -2801.3. Page 24 of 58
  • Other jurisdictions, such as New Hampshire61, provide a list of ailments for which cannabis is available, and also allow doctors to treat particular conditions not on the list, if the doctor affirms it to be “debilitating” and the State approves on a case-by-case basis. Parliament or Cabinet will also have to decide how well a physician need know a patient before prescribing cannabis. Some jurisdictions, like California62, allow physicians to prescribe cannabis after a single visit with only cursory examination if any at all. Other jurisdictions like Illinois63, require that prescribing doctors be in a “bona fide” relationship with the patient, defined as “after the physician has completed an assessment of the qualifying patient's medical history, reviewed relevant records related to the patient's debilitating condition, and conducted a physical examination. “ 64 The more restrictive Illinois model, requiring a “bona fide” doctor-patient relationship, is advised. G. Conclusions While the complexity and subtle distinctions inherent to medical cannabis access may be intimidating, patients in need of medical cannabis are often gravely ill and cannot endure lengthy waits while policy is made perfect. It is argued that even an imperfect medical cannabis access policy, in need of later “tweaking”, would be better than the current system. Timely medical cannabis access is literally a matter of life and death in many cases. US States where medical cannabis is legal have seen direct benefits without measurable harms, for example: 61 State of New Hampshire, Revised Statutes, Title X Chapter 126X-1(IX (a)-(b). California Health and Safety Code Section 11362.5 . 63 State of Illinois. Compassionate Use of Medical Cannabis Pilot Program Act, S 10(y). 64 Ibid. 62 Page 25 of 58
  • • No increase in cannabis use among minors65, • 9% lower road traffic fatality rates66, • Dramatically lower suicide rates67, including an 11% drop among males aged 20-29. The mere possibility of minor problems or hiccups, as basis for holding back cannabis medicine availability, seems a disproportionate ground for such an oppressive response to the growing public support and demand for medical cannabis. This is especially true given the abuses and harms caused by prescription anti-biotics, painkillers, steroids, anti-inflammatories, stimulants, sedatives, soporifics, and other commonly prescribed drugs, which would never have been permitted if subjected to the same worry-fraught delay seen in making medical cannabis accessible. Delays will increasingly lead to lawlessness and lack of faith in Government as cannabis’ medical popularity continues to spread, since inactive, sluggish governments will be publicly viewed as increasingly outdated hurdles to crucial health care access. Fears that medical cannabis may be used as a skirting mechanism for non-medical use appear unfounded, because persons willing to abuse a medical system certainly already abuse cannabis’ serious criminal restrictions. It is argued that since the practical effect of medical cannabis legalization upon recreational users is nil, that this fear, however prevalent, cannot conscionably be used to block patients’ access to actual medical cannabis, especially in life or death scenarios. Bermuda must not leave honestly-intended medical use more difficult to achieve than mere illegal recreational use. Such a policy would be wrong even if the general ban on cannabis were in any way effective. It is especially wrong, however, given that Bermuda cannabis bans have catastrophically failed, as evidenced by the fact that use rates are in the same general range as can be found in jurisdictions where recreational use is tolerated. 65 Anderson D and Rees M. Medical Marijuana Laws, Traffic Fatalities and Alcohol Consumption. Institute for the Study of Labour. November 2011; Discussion Paper No. 6112. ILZ, Germany. 66 ibid 67 Anderson D et al. High on Life? Medical Marijuana Laws and Suicide. Institute for the Study of Labour. January 2012; Discussion Paper No. 6280. ILZ, Germany. Page 26 of 58
  • Specialized Medical Cannabis: A. Alternatives to Smoking While recreational cannabis users generally smoke cannabis, common sense opposition to taking medicines via smoking has led to alternative delivery system development. The recent growing popularity of treating cancer with edible concentrated cannabis oils (known informally as “Rick Simpson Oil”, “Phoenix Tears” or by other colloquial names) has further fuelled demand, development and supply of non-smoked cannabis preparations. This does not, however, limit medical cannabis to non-smoked forms, despite concerns about lung health (see “Cannabis Myths De-Bunked”, below). According to the US Government’s top anti-cannabis smoking lung health expert, cannabis smoke, while far from ideal, is far less harmful than previously thought68. Certain conditions respond best to smoked cannabis69, and so it should not be ruled out, especially given that it is deemed legal and acceptable in so many other places, from the US to Canada to Israel to Italy. Even still, the medical community and common sense dictate that if cannabis’ medical effects can be realized without smoking, this would be optimal. Until recently, non-smokable forms of cannabis (such as edible products) were found unacceptable due to inconsistency of effect, and time lag between administration and effect. In recent times, however, the advent of vaporizers has allowed cannabis users to inhale steam, rather than smoke, circumventing both lung problems and the problems associated with edible cannabis products. The entry of the vaporizer onto the market has created additional reasons not to ban whole cannabis, as it can now be even inhaled safely. In conclusion, the risks of cancer smoke are not only less than feared, but can be circumvented entirely, and so this is not a reason to prohibit the medical use of herbal cannabis. 68 Tashkin D. Effects of marijuana smoking on the lung. Annals of the American Thoracic Society. June 2013; 10(3):239-47. 69 Hazekamp A. The Medicinal Use of Cannabis and Cannabinoids—An International Cross-Sectional Survey on Administration Forms. Journal of Psychoactive Drugs. 2013;45:3. Page 27 of 58
  • B. Refined Cannabis Oil for Cancer In recent years, alarming numbers of people have begun treating cancers with refined cannabis oils70, which are not smoked, but instead taken orally, topically, or by suppository. This trend is the result of some 900 peer-reviewed medical journal articles indicating anti-cancer properties of at least 7 different cannabis chemicals71. While many persons scoff almost reflexively at the idea that cannabis can be an actual remedy for cancer (as opposed to providing mere palliative effects), the medical and pharmaceutical industries take the matter seriously enough to have begun human clinical trials in England72. These tests use cannabis oil extracts made very similarly to the manner in which patients have made such products at home, albeit with the enhanced uniformity to be expected from industrial sized batches. A prevalent attitude has been that whichever cannabis chemical is best at fighting cancer should be extracted and refined -- this is the normal manner of development of plant-derived medicine, since it allows maximisation of benefits while achieving uniformity of dose which raw plants (greatly variable in content depending on age, variety, geography, and other factors) cannot usually offer. However, this tried-and-true theory does not work in the case of cannabis oils and cancer: one recent study73 tested the effects of 6 different cancer-killing natural cannabis chemicals (“cannabinoids”), and found that: (1) Each of the 6 cannabinoids tested kills cancer (some better than others); but (2) Each cannabinoid kills cancer best when in the presence of the other cannabinoids. Scientists calls this result synergy, meaning that the total effects on cancer of the 6 tested cannabinoids are greater than the sum of the parts. 70 Romano L and Hazenkamp A. Cannabis Oil: chemical evaluation of an upcoming cannabis-based medicine. Cannabinoids. 2013;1(1):1-11 71 Scott K, et al. Enhancing the Activity of Cannabidiol and Other Cannabinoids In Vitro Through Modifications to Drug Combinations and Treatment Schedules. Anti-Cancer Research. October 2013 vol. 33 no. 10 43734380. 72 GW Pharmaceuticals plc. GW Pharmaceuticals Commences Phase 1b/2a Clinical Trial for the Treatment of Glioblastoma Multiforme (GBM) 73 Scott K, et al. Enhancing the Activity of Cannabidiol and Other Cannabinoids In Vitro Through Modifications to Drug Combinations and Treatment Schedules. Anti-Cancer Research. October 2013 vol. 33 no. 10 43734380. Page 28 of 58
  • This strongly suggests that whole cannabis oils, rather than a single-molecule drug, will work best on cancers. These results starkly contradict the standard pharmaceutical model, in which isolated plant chemicals always outperform naturally-occurring plant compounds. Instances of cannabis oil being used to send cancer into remission have not yet been standardized enough to yield formal medical “proof”. Nonetheless, the successes and failures which have been reported indicate startlingly high rates of success (complete cancer remission): (1) Dr. Constance Finley reported a 96+% rate of complete remission among Stage 4 cancer patients74. (2) Approximately 70% of cases observed by other cannabis oil manufacturers, distributors, administerers and observers with who have each observed over 100 cases75,76,77,78 79. According to these sources, success rate is purportedly variable primarily by cancer stage and by the amount of bodily damage done by previous treatments such as chemotherapy and radiation80. One peerreviewed published study81 even showed, conclusively, that cannabis oil (and not chemotherapy, radiation, surgery or spontaneous remission) sent a 15 year old “terminal” leukaemia patient into full remission, who then died as a result of bowel damage caused by prior chemotherapy. Additionally, at least two celebrities, actor Tommy Chong, and activist Michelle Aldrich (who suffered from “terminal” Stage 4 lung cancer), sent their cancers into remission using cannabis oil, and have spoken openly about it. 74 Roberts C. "Miracle" Cannabis Oil: May Treat Cancer, But Money and the Law Stand in the Way of Finding Out. 24th April 2013; San Francisco Weekly. 75 Sweeny J MD. Personal correspondence with the author, 31st December 2013. 76 O’Toole P. Personal correspondence with the author, 31st December 2013.. 77 Smith R. Personal correspondence with the author, 31st December 2013. 78 st Bayer, J. Personal correspondence with the author, May 2013 through 31 December 2013. 79 st Yelland C. Personal correspondence with the author, 31 December 2013. 80 ibid. 81 Singh Y. Cannabis Extract Treatment for Terminal Acute Lymphoblastic Leukemia with a Philadelphia Chromosome Mutation. Vol. 6, No. 3, 2013; Case Reports in Oncology. Page 29 of 58
  • Reported successes include brain, lung, breast, prostate, and liver cancer as well as leukaemia. Many of these patients kept meticulous records of imaging scans, blood markers of cancer, other treatments used, and cannabis regimens over time, and while these individual cases do not rise to the standard of medical proof, they do serve as reminders of: (1) The need for formal human trials (2) The absurdity of denying such medicines to out-of-option, terminal patients in the meanwhile, since (A) Cannabinoids enhance the effectiveness of both chemotherapy82, 83 and radiation84, 85, 86 (especially where those standard treatments are ineffective on their own); and (B) Cannabis is less harmful than radiation and chemotherapy currently available, in terms of side effects 87,88; and (C) Cannabis oil, in laboratory testing and live animals (and in human anecdotal reports), appears more effective than chemotherapy89, 90, at least in some types of cancer. 82 Donadelli M, et al. Gemcitabine/cannabinoid combination triggers autophagy in pancreatic cancer cells through a ROS-mediated mechanism. Cell Death and Disease. 2011 Apr 28;2:e152. 83 Torres S, et al. A combined preclinical therapy of cannabinoids and temozolomide against glioma. Molecular Cancer Therapeutics. 2011 Jan;10(1):90-103. 84 Emery S, et al. The cannabinoid Win55, 212-2 enhances the response of breast cancer cells to radiation. Cancer Research: April 15, 2012; Volume 72, Issue 8, Supplement 1. 85 Emery S, et al. Combined antiproliferative effects of the aminoalkylindole WIN55,212-2 and radiation in breast cancer cells. J Pharmacol Exp Ther. 2013 Nov 20. 86 Gustafsson S et al. Cannabinoid receptor-independent cytotoxic effects of cannabinoids in human colorectal carcinoma cells: synergism with 5-fluorouracil, Cancer Chemotherapy and Pharmacology, vol. 63, no. 4, pp. 691–701, 2009. 87 del Pulgar, T et al. De novo-synthesized ceramide is involved in cannabinoid-induced apoptosis, Biochemical Journal, vol. 363, part 1, pp. 183–188, 2002. 88 Carracedo A, et al., Cannabinoids induce apoptosis of pancreatic tumor cells via endoplasmic reticulum stress-related genes, Cancer Research, vol. 66, no. 13, pp. 6748–6755, 2006. 89 American Association for Cancer Research (2007, April 17). Marijuana Cuts Lung Cancer Tumor Growth In Half, Study Shows. 90 De Petrocellis L, et al. Non-THC cannabinoids inhibit prostate carcinoma growth in vitro and in vivo: proapoptotic effects and underlying mechanisms. British Journal of Pharmacology. 2013 Jan;168(1):79-102. Page 30 of 58
  • In the Spring of 2013, the Bermuda Ministries of Public Safety, and Health, respectively, were warned in writing to allow medical cannabis oil access to patients in Bermuda, for the simple reason that if it were not allowed, Bermudians facing imminent death or disfigurement from cancer would predictably attempt it anyway. The predictable consequences of failing to allow drug production in Bermuda, according to the written warning, were that Bermudian patients would eventually: (1) Travel to overseas areas in which the product is legal, but where unknown predatory vendors might take advantage of them with impure, contaminated or fake products (as has happened to patients elsewhere91); or (2) Attempt to mail order such products from overseas, facing the same risk of predatory merchandisers as well as importation difficulties; or (3) Attempt to make the product themselves in Bermuda, risking solvent fires/explosions, toxic vapours, or contaminated products. Despite the repeated written warnings, in October 2013, numerous government administrative and law enforcement officials approved an importation of a cannabis oil product for a Bermudian cancer sufferer, which purported to contain only legal cannabis chemicals92. The shipment was not properly approved, and was seized on the correct instructions of Bermuda’s Attorney General for testing93. Before and since that time, serious questions have been raised about the product and its vendor, specifically: 91 Smith, R. Personal correspondence with the author by a well known US mail order vendor of cannabis oil, who admits to having sold inferior material via mail both within the US and internationally. June-December 2013. 92 th Anonymous Ruling Party MP, personal conversation, 9 December 2013, 93 Ibid. Page 31 of 58
  • (1) The alleged exporter’s94 company executives have been credibly implicated in previous unethical business practices, including mimicking of other companies’ names for marketing purposes95. This practice appears also to have been the case in the attempted Bermudian cannabis oil importation, in which a product labelled “Real Scientific Hemp Oil”, or RSHO, appears to mimic the name of Rick Simpson Oil, or “RSO”, a non-trademarked but immensely popular nick-name for home-made cannabis oil. (2) Nearly every industry standard 96 was broken by the product’s “Certificate of Analysis” (COA). The COA’s shortcomings related to: (A) Lack of independence, as evidenced by (i) Initially (prior to 9th December 2013), simply no listings of the testing laboratory’s name, contact information and certificate number97; and (ii) Sometime after 10th December 2013 but before 28th December 2013, a new COA was issued with increased standards compliance, but still lacking independence as per the manufacturer’s own admission98. (B) Lack of listing of specific ingredients and specific amounts of those ingredients, a problem which has since been addressed in the company’s new COA post- 9th December 2013, but which still suffers from selfadmitted lack of independence99. 94 Ibid. Brochstein A. Did Dixie Narc On Medical Marijuana, Inc. To The SEC? Seeking Alpha: Read, Decide, Invest. 10th Dec 2013. 96 International Organization for Standardization. ISO Guide 31:2000. 97 th HempMeds Px. Certificate of Analysis (sic). Allegiance Wellness Center. Company www site viewed 28 December 2013 . 98 th “Lab Tests”. Real Scientific Hemp Oil. 28 December 2013 at 99 Ibid. 95 Page 32 of 58
  • (3) Contamination, via: (A) Extraneous unknown material, in large quantities, possibly including toxic mould and e coli bacteria100; and (B) High content of illegal cannabinoids such as THC, despite the claim that it contained only trace amounts of THC101 (4) Illegality -- the product, even if it contained only what it claimed to contain, is possibly illegal in both the US102 and Bermuda, in any case, being an extract of whole cannabis resins. (5) Failure to comply with UN treaty obligations (for both the US and UK) for labelling and record-keeping. (6) The fact that the treatment, even if it contained only what it purported to, has never been observed providing anti-cancer benefit to any human patient, and the use of it in that form (without any THC) flies in the face of considerable research showing that cannabis-based cancer therapies not only (A) work better if they include THC, but also (B) that the increased effectiveness of CBD +THC (as opposed to CBD alone) over-rides concerns about negative consequences of THC, which is prescribable anyway, in its pure form, ironically. From this perspective alone, even if the seized product were legitimate in every other way, the attempt to use it (instead of a THC-containing product) was possibly a wild goose chase from the outset, made seductively attractive by the commercial CBD fad and by hurdles to medicinal acquisition of actual cannabis. 100 Lee, M. “Dixie Elixirs Unfit For Human Consumption”, citing a 20th November 2013 social media post by Tamara Wise. O’Shaugnessy’s PrintEedition On-line 21st November 2013, viewed 28th December 2013 at . 101 Author’s personal correspondence with patient who was offered money by the manufacturer to return a th product which purportedly contained illegal THC in conflict with marketing claims that it did not. 10 December 2013. 102 U.S.C.S. Title 21 802 Definitions Page 33 of 58
  • It is anticipated that as news of cannabis oil’s efficacy against cancer spreads, demand will continue to increase, and that Bermuda will continue to face problems as Bermudian cancer sufferers clamour for real high-THC cannabis oil. Failure to allow such access will undoubtedly (as was previously warned) lead to rip-offs, home fire/explosion risk, and contaminated and/or diluted products. Asking a dying person to wait for legislation, testing and timid Government seems an unfair burden. It is submitted that access should be immediate, with published application rules, and that future fine-tuning can wait, as no one seems likely to suffer serious harm from it, while the alternative could cost lives. Patients should not be written off as not truly in need of help, due merely to overseas availability of these treatments which are inaccessible in Bermuda. Travel is simply not an option for many patients, nor a good option for others. Since such banishment does not even protect Bermuda from illegal recreational cannabis use, it is pointless, and can be no justification for denial of medicine in Bermuda. If this as-of-yet unproven cancer remedy were just another passing fad like apricot seeds or DMSO cancer treatments, but not illegal, then it would be acceptable to keep it excluded from formal medical use. The differences, however, are 3-fold: (1) Cannabis oil shows far greater promise in the lab and in anecdotal human use than any fad remedy to date; and (2) Other fad treatments are generally not banned (despite usually being riskier than cannabis), and so patients are free to -- and often do -- take it upon themselves to undergo such treatments, with or without doctors’ approval. (3) Cannabis is popular in its own right, and has gained a degree of cultural acceptance even for non-medicinal use, making attempts to suppress it unlikely to succeed without any showing of the treatment’s inefficacy. Further, no study yet suggests it does not work. Parliament is urged to consider the warnings sent to the Health and Public Safety Ministers in Spring of 2013, and to consider that the warning has come partially true: the predicted problems did arise. Failure to heed the warnings led to the problems which were warned of. The predicted problems will increasingly manifest in the future, and probably with worse consequences, while the matter remains un-addressed. Page 34 of 58
  • C. “Medibles” -- Other Edible Cannabis Products Two main concerns arise with regard to edible cannabis medicines, or “medibles” which some patients prefer over inhaled versions: (1) These products are occasionally accidentally ingested by unsuspecting persons, including children, especially if available as sweet products. In cases of accidental ingestion, discomfort may arise. Fortunately, there is no way for any person, even a small child, to eat a lethal overdose of cannabis103. It is actually impossible. Still, any legalized form of “medibles” should be prominently labelled, individually packaged, and stored in child-proof packaging. Such precautions should suffice to prevent children from accidentally being made uncomfortable. (2) When “medibles” (containing mostly food, and small amounts of cannabis) are weighed, they often exceed maximum amount limits which have been set for the raw drug. US States have struggled with this, with some initially only allowing smokable cannabis -- which seems an ironic requirement for a medicine. The more recent trend has been to allow edible products, and to count their weight not be the weight of inert foods around the cannabis, but instead by the actual amount of cannabis in the product. For this reason, Parliament is again urged to require strict labelling of all commercial medical cannabis products, especially edible ones with regard to how much cannabis is contained in each unit. 103 Opinion And Recommended Ruling, Findings of Fact, Conclusions of Law and Decision. Alliance for Cannabis Therapeutics, et al., vs. US Drug Enforcement Administration (IRS), Re: Marijuana Rescheduling Petition. per Judge Frances Young at part VIiI, Point 4, Paragraph 3. 6th December 1988, Docket No. 86-22. Page 35 of 58
  • D. “No-High” Cannabis Medicine: THC vs. CBD THC is cannabis’ main psychoactive and medical ingredient. Other psychoactive medicines such as opiates and Valium have not been banned, despite dependency and overdose issues at least as bad as cannabis’. Conversely, THC’s psychoactivity has been seen as a hurdle to its use in medicine. This has caused medical professionals to seek ways to achieve cannabis’ medical effects without a “high”. Cannabidiol (“CBD”) is another medical component of cannabis, but does not cause a “high”. In fact, CBD directly counteracts many of THC’s medical effects104, making it attractive to researchers, policy makers, doctors and patients seeking a “no high” solution. While CBD has tremendous value in stopping psychosis and severe epilepsy, and shows some anti-cancer properties, its medical value pales in comparison to THC and/or whole cannabis containing both THC and CBD (see above and below). It is important to note that pure THC is legally prescribable, but in pill form has presented significant problems among patients: it gets people too “high” compared to herbal cannabis, it sticks in the throat and does not dissolve properly causing hours-long delays before taking effect, it leads to paranoia and panic, and causes wildly varying effects from dose to dose owing to variability in absorption and digestion105. CBD, which occurs side-by-side with THC in cannabis plants, has been shown to reduce negative effects of THC, in part because it acts as a direct antagonistic competitor to THC for neural cell surface receptors, directly blocking and even reversing many of THC’s drug effects106. At present, CBD sits in a legal gray area. While not banned in many places, it can only be affordably made by illegal extraction from cannabis plants. Nonetheless, in part due to a recent CNN special hosted by neurology surgeon Dr. Sanjay Gupta107, parents of severely epileptic children have applied pressure in the US for access to either pure CBD, or else CBD-rich strains of cannabis with little or no THC. 104 Schubart C. Cannabidiol as a Potential Treatment for Psychosis. 04 December 2013; European Neuropsychopharmacology. 105 Hazekamp A. The Medicinal Use of Cannabis and Cannabinoids—An International Cross-Sectional Survey on Administration Forms. Journal of Psychoactive Drugs. 2013;45:3. 106 Ibid. 107 Gupta S. “Weed”. CNN Special. 11th August 2013. Page 36 of 58
  • Anecdotal evidence108 and lab studies109, however, suggests that even better results are obtained when these patient also take small amounts of THC with their CBD. One doctor specializing in CBD-intensive therapy for human patients says that optimal results come from taking it with THC110. Another doctor, endocrinologist Dr. Robert Melamede, credits this effect to the fact that CBD blocks receptors for naturally-occurring “endoccannabinoids” (marijuana-like chemicals produced in the human body), causing “dys-phoria”, and leading to anger and violence such as that reported by parents of epileptic children taking pure CBD111. Ironically, whole cannabis is seen by many policy makers as bad medicine due to its “high” while: (1) Many worse psychoactive drugs, such as Valium, morphine and amphetamines, are legal and widely used; and (2) Pure THC (the cannabinoid most responsible for cannabis’ “high”) is legal in pill form, despite patient complaints that it is ineffective and problemfraught112; and (3) CBD (which counteracts THC’s worst effects) is less illegal than THC and is increasingly legally/medically acceptable and available. 108 Lockwood R and Abby N (parents of severely epileptic children). “From Seed to Cure: Dr. Robert Melamede th Talks About Pediatric Cannabis Treatments” (radio talk show). 14 December 2013 Blog Talk Radio. th Reviewed 28 December 2013 at . 109 Mechoulam R. Cannabidiol: An Overview of Some Pharmacological Aspects. Journal of Clinical Pharmacology. 2002; 42; 11. 110 Frankel A, Dr.. Personal correspondence with Lee M, cited in “Medical Marijuana, Inc, Pitching CBD Products” O”Shaughnessy’s. Winter/Spring 2013, p 25. Viewed online 28th December 2013 at 111 Melamede R. “From Seed to Cure: Dr. Robert Melamede Talks About Pediatric Cannabis Treatments” (radio th th talk show). 14 December 2013 Blog Talk Radio. Reviewed 28 December 2013 at . 112 Hazekamp A. The Medicinal Use of Cannabis and Cannabinoids—An International Cross-Sectional Survey on Administration Forms. Journal of Psychoactive Drugs. 2013;45:3. Page 37 of 58
  • There is growing reason to believe that both THC and CBD work best as medicines when mixed together in appropriate ratios (as is found in herbal cannabis). In fact, a pharmaceutical company has patented a range of THC+CBD treatments113. There is therefore no reason evident to artificially refine and reblend them, as opposed to using them in whole cannabis with cannabis’ other non-psychoactive chemicals, 6 of which have been shown to kill cancer114 and have other positive medical effects. The recent CBD “no-high” bandwagon has been a miracle for patients with severe epilepsy, but has not borne out some clinicians’ hopes of nonpsychoactive cannabis medicine for other conditions. Sadly, a Bermudian cancer patient attempted in October 2013 to legally import a CBD-rich product into Bermuda as a cancer remedy, and encountered importation difficulty (see “Refined Cannabis Oil as a Cancer Remedy”, above). The CBD-only bandwagon is not, nor will ever be, a clever way to obtain cannabis’ medical effects without euphoria -- most of cannabis’ medical benefit comes from THC115, and there is no way around this truth. E. Specialized Medical Cannabis Conclusions The numerous types, uses and forms of specialised medical cannabis are new to Bermuda, and may take some time to digest, and yet dying patients cannot wait. Bermuda is strongly urged to immediately publish guidelines not only by which successful applications can be tendered for actual medical cannabis, but also for the circumstances under which patients may safely obtain refined oils and other products -- or else they will make them at home, perhaps using unsafe techniques. Pesky details can be sorted at a more leisurely pace, once patients’ lives are being saved. Death is the worst consequence of medical cannabis bans, and yet death cannot occur as a result of medical cannabis, and so the choice should be clear. 113 GW Pharmaceuticals, plc. GW Pharmaceuticals plc Announces US Patent Allowance for Use of Cannabinoids in Treating Glioma. Press Releases. 11th Dec 2013, viewed 28th December 2013 at company www site US%20Patent%20Allowance%20for%20Use%20of%20Cannabinoids%20in%20Treating%20Glioma.aspx . 114 Scott K, et al. Enhancing the Activity of Cannabidiol and Other Cannabinoids In Vitro Through Modifications to Drug Combinations and Treatment Schedules. Anti-Cancer Research. October 2013 vol. 33 no. 10 43734380 115 Melamede R. “From Seed to Cure: Dr. Robert Melamede Talks About Pediatric Cannabis Treatments” (radio th th talk show). 14 December 2013 Blog Talk Radio. Reviewed 28 December 2013 at Page 38 of 58
  • Medical Cannabis Conclusions It is apparent that Ministerial discretion for medical cannabis allowance already exists, as evidenced by the Cabinet’s position on: A. The ongoing court case of R (on the application of Michael Brangman) v Minister for Public Safety (application for leave for judicial review, 2013, unreported); and B. The public request of Bermudian Craig Looby for a medical cannabis dispensary license, which the Hon. Public Safety Minister publicly answered with advice to apply to that Ministry116 (suggesting one could be granted); C. Personal correspondence of the author in which the Honourable Minister indicated that the Public Safety Ministry was the ministry to which applications should be tendered for approval. Given that the Ministry itself feels it already has authority to issue medical cannabis licenses (despite disagreements with applicants as to how to go about it), the Ministry likely does have such authority under section 12(3) of the 1972 Act. What the Ministry does not have, to date, is a series of publicly accessible rules by which patients may successfully apply. This Ministerial decision may be unlawful unto itself. 116 th Dunkley, Hon Minister of Public Safety. Facebook comments on Ruling Party OBA page 30 December 2013, retrieved the same date at 561439153940141/? notif_t=group_comment_reply (since deleted). Page 39 of 58
  • The lack of such publicly-available rules, especially in such a serious application, places the Ministry afoul of English case law 117, 118, because “What must . . .be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.”119; and “In our system of law, surprise is regarded as the enemy of justice”120. Rather than wait for someone to sue Government to require the publication of such rules under the English case law121, it is advised that the rules for successful medical cannabis applications simply be published forthwith. This is not only a matter of legality, but one of basic procedural fairness. And at the end of the day, it is a matter of mercy for ailing, intimidated patients, so that they can make a single application rather than slowly dying while application after application gets rejected for failing to meet invisible rules. Cabinet seems unwilling to allow medical cannabis acquisition (even though Cabinet has repeatedly announced willingness to consider tolerating simple recreational possession to some degree). This conclusion is based on the fact that the Ministry has refused to allow on-island medical cannabis production, based in part upon the advice of Health Ministry officials 122 who, in giving this advice, likely relied upon incorrect personal assumptions and/or outdated studies. Such medical opinions, as CNN Chief Medical Correspondent and neurosurgeon Dr. Sanjay Gupta pointed out, are improperly biased123 due to the abundance of outdated, and now disproven studies. Local medical officials are in need of up-to-date training, since patients in Bermuda occasionally self-medicate with illegal cannabis at present. 117 R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, per Lord Steyn at 622C: “In our system of law surprise is regarded as the enemy of justice”. 118 E.g. as expressed in Marriott v Secretary of State for the Environment, [2000] EWHC 652 (Admin) (10 October 2000) at pp 92-98 of Sullivan J’s judgment. 119 Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011) per Lord Dyson at p 38. 120 R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, per Lord Steyn at 622C: “In our system of law surprise is regarded as the enemy of justice”. 121 Ibid. 122 Telemaque M, Permanent Secretary for the Ministry of Public Safety, Bermuda, personal correspondence th 4 July 2013. 123 Gupta S. Why I changed My Mind on Weed. .9th august 2013. Page 40 of 58
  • 3. RECREATIONAL CANNABIS Background: Around the world, a growing movement to reduce or eliminate criminal bars to cannabis use, possession and acquisition is occurring. In the United States, 2 States (Colorado and Washington) have outright legalized possession, cultivation and sale via referenda, while another State (Alaska) has long allowed home growing and use of cannabis as a matter of constitutional privacy124,125. The US Federal government has (despite UN Treaty obligations to the contrary) made a formal non-interference policy with States’ cannabis laws126, which includes lifting of banks’ restrictions on cannabis-related financial transactions127. It is tempting to think that since only 3 States out of 50 have legalized, that US support is minimal. In fact, however, the other States’ legislative apparati are simply not heeding the clear wishes of their electorates: US popular support for removal of all cannabis penalties has achieved 58% support128, a majority percentage which would be considered overwhelming in any national election. Many theories have been proposed as to why the US State and Federal legislatures are refusing to honour the wishes of the populace (e.g. campaign contributions from competitor industries like alcohol, pharmaceuticals, police and prison worker unions, and even the alarming suggestion that US politicians may be involved in the lucrative drug trade via laundered campaign contributions). None of those reasons for ignoring public sentiment are good ones, and such strongarming by the US Government, whatever the cause, can only be bad for civic morale, trust in Government, or other key relationships between elected officials and those they represent. Bermudian legislative blocking of similar public wishes (should surveys indicate such sentiments) is strongly inadvisable, as it will look “crooked” even though honest and well-intended. 124 Ravin v. State, 537 P.2d 494 (Alaska 1975). Noy v. State, 83 P.3d 538 (Alaska App. 2003). 126 Southall A. US Won’t Sue to Reverse States’ Legalization of Marijuana. 29th August 2013; New York Times. 127 Finlaw J, Chief Counsel to Colorado Governor the Hon John Hickenlooper, cited in “Cannabis Banking Could Get ‘Yellow Light’ From Feds”. 19th December 2013; Marijuana Business Daily. 128 Swift A. For First Time, Americans Favor Legalizing Marijuana. Gallup Politics. 22 October 2013. 125 Page 41 of 58
  • Some legislators abroad have refused to proceed with reform, citing anti-cannabis publications highlighting alleged harms of cannabis. Such tactics by Bermudian legislators are likewise inadvisable, for two primary reasons: A. Many or most such studies are outdated having been disproved (see “Cannabis Myths De-Bunked”, below), yet are often mis-stated as fact. This causes wellread constituents to question politicians’ motivations. B. Most anti-cannabis studies, and later repetitions of those studies, are funded by sources with obvious conflicts of interest129. For example, the most prominent anti-cannabis groups receive the majority of their funding from the alcohol industry130 (a competitor); the studies published by those groups are therefore suspect. Likewise, the US government only funds anti-cannabis studies, without looking into its medical properties or its relative harmlessness. The US government, therefore, having been lobbied by various competitor industries to keep cannabis illegal, appears ethically and scientifically compromised. The bizarre US federal position that cannabis has no medical use suggests such compromise has actually occurred131. Options: Two options exist for softening cannabis policy: de-criminalization (“decrim”) and legalization. Generally, “de-criminalization” refers to reducing penalties for cannabis possession (and or distribution and cultivation), sometimes removing such penalties from criminal to civil status. Generally, “legalization” refers to a system of regulation, in which users may actually obtain (instead of just possess) cannabis. This type of reform typically involves no penalties for those who comply with limits as to age, amount, time, place and manner of cannabis use. 129 Platshorn R. Greed and Evil. As of yet unpublished book due out 2014. Ibid. 131 Aggarwal S. Adequate and Well-Controlled Studies Proving Medical Efficacy of Cannabis Exist but are Ignored by Marijuana Schedulers. 15th April 2013; The Huffington Post. 130 Page 42 of 58
  • Many false beliefs about the terms “legalization” and “de-criminalization” exist. For example, many Bermudians feel that de-crim refers to allowing possession (but not sale or cultivation). This perspective is not only incorrect in general parlance of cannabis decriminalization (because US States in which cannabis possession is still criminal but with reduced penalties are said to have decriminalized), but it fails to address the origin of the available supply of cannabis. This unwittingly and tacitly supports smuggling, illicit sales and clandestine cultivation, activities which currently plague Bermuda, and which will not be eased by de-criminalization. Similarly, many Bermudians are under the false impression that “legalization” refers to a free-for-all in which unfettered cannabis activity is allowed. Such persons typically believe that if legalization occurs, use will be uncontrolled and rampant, with ugly public street sales and smuggling allowed (such as occurs under the current system, but worse). It should be noted that under the current system all of these activities already occur, but sometimes with dire consequences for participants. Generally, under a system of legalization, cannabis activity is more regulated than where illegal. The best way to prevent street sales is to either “crack down” by enforcement of existing laws, or to move sales into a regulated arena. No Bermudian survey has been published which delineates the distinction between the two terms “legalization” and “decrim”. Several questions on one recent survey, the results of which purported to support decrim over legalization, were criticised by a professional statistician132 as invalid due to a lack of clear definition of terms, the order in which questions were asked of participants, and presentation problems133 which appeared to unwittingly push upon respondents a pre-stated conclusion that only decriminalization could occur as a first step. Whether this is true or not is conjecture, except that the surveyor had already expressed that reform must come in “baby steps” in order to succeed134. This borders on unethical “push-polling”, and so it not only must be disregarded, but in the future, it need be avoided. If further survey work is needed, professional and unbiased questions must be asked to obtain accurate public opinion on the topic, without foregone conclusions. In order to highlight the pros and cons of each option, a clearer explanation of them will be of value. 132 Reilly, C. Personal correspondence Autumn 2013. Future Bermuda Alliance, personal correspondence with the author, September 2013. 134 ibid 133 Page 43 of 58
  • A. De-criminalization (“Decrim”) It is submitted that Bermuda cannot actually decriminalize cannabis at all, due to the fact that Bermuda has already done so to a degree of “zero-penalty” (not even an administrative fine, see below) -- there is no room for further decriminalization, unless we wish to start giving cash awards to those caught with small quantities of cannabis. Decrim gained popularity in Europe and North America in the 1970s, due to mounting pressure on the criminal justice system and growing awareness that cannabis was not the violence-inducing “demon-weed” it was thought to be when first illegalized in the 1930s. Many US States in the 1970s lowered penalties for both possession and supply/ cultivation, or else lowered penalties for possession but raised penalties for supply. Even in those States which did not lower penalties, for smaller offences, probation and fines were issued without any criminal guilty plea under a system called Accelerated Rehabilitative Disposition (ARD) first enacted in Philadelphia under then-Chief City Prosecutor Arlen Specter135, who later became a 6-term US Senator after achieving wide praise for the ARD system’s success; it later became the US’ national model, now used by all 50 States and the federal government there. 135 Specter, Hon Sen A. “Way Out of Courts’ Gridlock”.23rd May 2011. The Philadelphia Inquirer. Page 44 of 58
  • UK jurisdictions, such as Bermuda, on the other hand, do not use “ARD”, but instead use a “conditional discharge” system for small-time cannabis offenders, so those Crown subjects accused of even simple possession end up making a formal criminal admission of guilt (in order to avoid stiff Bermuda penalties for those found guilty without admitting it). Under US Immigration law136, such admissions of guilt hinder travel into the US, education and professional growth in ways which Americans arrested for the same crime never suffer. This easily-remediable situation ironically leads to a state of affairs in which: (1) A Bermudian, living in the US, if he pleads guilty to a small pending Bermudian cannabis charge, will be deported from the US and never again granted entry clearance , but (2) If the same Bermudian were charged in the US for the same crime, he would neither be deported nor banned from future travel to the US137, because ARD entails voluntary probation without a plea, after which the charge is dropped, without an admission of guilt, if the probation is successfully completed. Whether or not Bermuda opts to decriminalize or legalize cannabis, Bermuda should consider following the Bermudian US Consulate’s 2010 advice138 that implementation of an ARD system would prevent Bermudian first-time petty offenders, whether charged with a drug related offence or any other petty crime, from being “Stop Listed”. It should be noted that Bermuda has already decriminalized cannabis possession as far as can be done, and so no more de-criminalization can actually be achieved, other than reducing cultivation and/or supply penalties. 136 US Immigrations & Naturalization Act, Title II, Chapter 2, Act 212. Rosholt J (US Consular Officer in Bermuda) and Gordon A. Criminal Hurdles to Immigration: Contrasting US, th UK, Canadian and Bermudian Policy. 17 April 2010; Bermuda Bar Association Continuing Legal Education Programme. 138 Rosholt J (US Consular Officer in Bermuda) and Gordon A. Criminal Hurdles to Immigration: Contrasting US, th UK, Canadian and Bermudian Policy. 17 April 2010; Bermuda Bar Association Continuing Legal Education Programme. 137 Page 45 of 58
  • Specifically, Bermuda has a formal policy in place in which people arrested for simple possession are released with a mere “Caution” where there is no criminal charge or penalty of any sort, so long as they are compliant, honest and remorseful when caught139,140. This means that any new decrim utilising civil, rather than criminal fines, would either (1) raise, rather than lower the penalty (since there is none at present), or else (2) lower penalties for those caught with cannabis who are not compliant, remorseful or honest, but not soften policy at all (or even worsen it) for those who are compliant, remorseful and honest. Either option would be rewarding dishonesty, and penalizing or failing to reward honest people. This would not likely go over well with the public. Additionally, our existing “caution” policy, like the UK’s, is already in violation of our UN Treaty obligations141 -- in much the same way that the US’ tolerance of State-legalized cannabis fails to comply with the Treaty’s Article 22(2) obligation to destroy all cannabis which it has not nationally permitted. In practice however, this trivial technical non-compliance has brought no consequences to Bermuda, the UK, or the US. Finally, critics142, 143 have noted that decrim is a fractured approach, sending mixed messages that cannabis is safe enough to tolerate, despite its risks, but that it can in practice only be obtained by participating in what are still labelled serious crimes of purchase, importation, sale, and/or cultivation. These policies, implemented as long as 40 years ago in the United States, have not borne much in the way of achieving results other than those we can observe: widespread and growing majority public support for a regulated supply of cannabis. 139 Smith, P. “Pressure Mounts for Marijuana Reform in Bermuda”. 23rd September 2013, Issue 802; Drug War Chronicle. 140 th Pearman M. “Know the law: You can be jailed for life for growing ‘weed’”. 16 August 2013; Bermuda Sun 141 Article 36(1)(a), United Nations Single Convention on Narcotic Drugs. 142 Hummer B, The New Jersey Prevention Network, cited in Livio S. Bill to decriminalize marijuana possession is advanced by N.J. Assembly committee. 21 May 2012; Trenton Star Ledger. 143 Op-Ed. Don’t Decriminalize Drugs. 8th December 1988 p 15; Christian Science Monitor. Page 46 of 58
  • Decrim policy is dangerous because: (1) Decrim gives tacit approval to (A) street sales by gangs; and (B) importation from the established “narco-terror” cells in Jamaica144 and Mexico145, the two jurisdictions from whence most of Bermuda’s cannabis originates (as evidenced by its unique curing style, the presence of seeds in the cannabis, and the unique strains of cannabis present in Bermuda but only grown in Mexico and Jamaica); Jamaican and Mexico drug cartels have infiltrated police, government and political parties146,147, and in Mexico, drug cartel violence has killed at least 60,000 (and possibly as many as 100,000) in the past 6 years148. (2) Decrim presents a lack of rules regarding time, place, manner and age of use. (3) Derim fails to address the weightiest, most destructive aspect of institutional racism: imprisonment. At present, personal cannabis possession does not generate prison sentences, so if all supply is left as an imprisonable offence, prison rates for cannabis offences will not be lowered by even a single prisoner. 144 Government of Jamaica. National Security Policy For Jamaica. Organization of American States (OAS). Page 17, paragraph 2.51. Undated OAS/Jamaican Publication viewed on-line 31st December 2013 at spanish/documentos/National%20Security%20Policy%20-%20Jamaica%20202007.pdf 145 Durbin R. International Narco-Terrorism and Non-State Actors: The Drug Cartel Global Threat. Winter 2013, Volume 4, Issue 1; Global Security Studies. 146 th Cook C. Mexico’s Drug Cartels. 16 October 2007. CRS Report for Congress. United States Government 147 th OpEd. Drug Money and Politics. 11 February 2003; The Jamaica Gleaner. 148 Booth, William (). "Mexico's crime wave has left about 25,000 missing, government documents show". 30 November 2012;The Washington Post. 30 November 2012. Page 47 of 58
  • In summary, decrim is not a good option for Bermuda on its own, for the following reasons: (1) Cannabis possession has already been de-criminalized maximally here, beyond what is even allowable under the UK’s UN Treaty obligations, and cannot be further decriminalized except for lowered penalties for sale, importation and cultivation. (2) Any apparent public support for decrim is highly suspect, as the populace and both political parties have demonstrated confusion as to the term’s basic meaning. (3) The policy is fractured in its intent, at odds with itself, and dangerous. (4) The policy fails to solve most of the problems associated with cannabis (gang violence and utter lack of regulatory control, and the most severe/costly forms of institutional racism) B. Legalization or Regulation Since “de-crim” is not a practicable or even available policy option (due to maximal decriminalization already in place, see above), it is submitted that any policy reform can only take a form of “regulation”, an inoffensively termed type of actual cannabis possession and acquisition allowance. (1) Treaty Compliance Given that Bermuda is UN Treaty-bound (through the UK) not to legalize149, Bermuda’s UK representative, the Governor, will not grant assent to any such legislation -- he is simply not allowed to do so. It is submitted that by utilizing the Treaty’s exemption for scientific research150, Bermuda can prevent interference by the UK. While the UK may deny assent to legislation, this is no hurdle to the research exemption’s utility, because: 149 150 Articles 22, 28 and 36(1)(a), United Nations Single Convention on Narcotic Drugs, 1961 Articles 2 (5)(b), 22, United Nations Single Convention on Narcotic Drugs, 1961 Page 48 of 58
  • (A) The UK may not deny assent to Ministerial discretion, and (B) Scientific research comes under Ministerial discretion, and can be achieved in a Treaty-compliant fashion without the UK’s permission. If the UK wishes to exert pressure against regulation, despite a lack of authority by which to do so, then they may do so, and suffer the consequences of globally appearing to deny Bermuda the right to legislatively and popularly selfdetermine her own secondary legislation (a matter of Ministerial discretion not relying upon the Governor’s assent) in a Treaty-compliant fashion. Conversely, 13 other countries flout the Treaty anyway in the following manner: (A) UK (including Bermuda) -- “caution” policies for cannabis possession fail to criminalize all non-scientific, non-medical cannabis possession as required by the Treaty’s article 36(1)(a). (B) US -- formal federal allowances of State-by-State legalization programmes are also in flagrant violation of Articles 22, 28 and 36(1)(a) of the Treaty. (C) Netherlands -- while technically unlawful in the Netherlands, cannabis is sold openly with no effective enforcement at all, and a “blind eye” or “back door” policy in place for production, in which: (i) (ii) 151 5 plants are always allowed to be grown on any outdoor balconies. Supply to coffee shops is banned, and yet the coffee shops persist despite not being able to legally produce enough cannabis to satisfy even 20 minutes worth of daily demand151. th Sir Richard Branson. “Richard Branson Explains How To Fix The Netherlands ‘Back Door’ Problem”. 6 November 2013; Leaf Science. Page 49 of 58
  • (D) Uruguay -- recent outright legalization is in flagrant violation of the Treaty bans. (E) Italy -- is in violation of the Treaty on a regular basis due to court decisions152,153 finding small private cannabis use and cultivation to be non-criminal. (F) Jamaica -(i) Has begun offering cannabis farm tourism packages154; and (ii) has a de facto policy which allows tourists to obtain cannabis cheaply within 10 seconds of clearing Customs155; and (iii) is a massive smuggling origin jurisdiction156. (G) Switzerland -- effectively allows cannabis to be sold so openly across the country that one www forum, describing the law, boasted reader comments which were 89% open sales advertisements157. (H) Mexico – personal possession of cannabis (and in fact all drugs) is utterly non-criminal158. (I) Argentina -- possession of cannabis and other drugs has been deemed non-criminal by the Supreme Court159. 152 Guaglione v Italia 2008, reported in Haver F. “Cassazione assolve il megaspinello rasta”. 11th July 2008; Corriere Della Sera. 153 th “Top court permits marijuana on balcony”. 28 June 2011; ANSA. 154 “Sun, sea, sand and ganja - Local farmers offer ganja tours to tourists”. 10th September 2013; Associated Press. 155 Emery M (publisher, Cannabis Culture Magazine). Personal correspondence with the author September 2013. 156 United States Central Intelligence Agency. “Jamaica”. World Factbook, accessed online 30th Dec 2013 at . 157 th “Switzerland”. Marijuana Travels www site accessed 30 December 2013 at countries/che. 158 st Associated Press. “Mexico Legalizes Drug Possession”. 21 August 2009; New York Times. 159 Argentina court ruling decriminalizes marijuana and makes personal use a constitutional right", 26 August 2009; New York Daily News. Page 50 of 58
  • (J) Ecuador -- Possession of cannabis and other drugs in constitutionally protected from criminal charges160. (K) Australia -- While technically illegal, cannabis is openly sold without interference in Nimbin, New South Wales, and has been since the 1960s when a counter-culture or “hippie” community arose there. Nimbin hosts a massive annual cannabis celebration called ‘MardiGrass” to which attendees flock from all over the world. (L) Denmark -- the Copenhagen district of Christiania has been virtually unmolested for 40 years as a 24/7 open air cannabis and hashish market, which is currently Denmark’s 2nd largest tourist attraction161. (M) Canada -- An Ontario appellate court ruling holds that since there was a medical exemption in the cannabis ban which was unobtainable for patients (as is the case in Bermuda at present), the law banning cannabis is of no effect at all for the entire Canadian province of Ontario162 (pop. 13.5 million). While medical cannabis is now allowed in Canada, the law in Ontario was struck down by the case in question, and was never reenacted -- a prima facie violation of the UN Treaty. To be more specific, the UN Treaty, which was signed and ratified by the UK on our behalf, has utterly failed to stem the tide of cannabis and hashish flowing from UK and Commonwealth jurisdictions into Bermuda, while no cannabis can be said to leave Bermuda. The Treaty obligation to take steps as necessary to stem the flow have not been taken, nor can be. Further, 40 years of relative good-faith Bermudian Treaty compliance, up until the formal “caution” policy enacted circa 2010, has hidden data (and rendered its accurate collection difficult or impossible) about cannabis’ consumption, distribution and effects, by forcing it underground where observations have been stifled and skewed. 160 Article 364, 2008 Constitution of Ecuador. th Freston T. You Are Now Leaving the European Union. Vanity Fair. 12 Sept 2013. 162 R. v. P. (J.)] 64 O.R. (3d) 757 [2003] O.J. No. 1949 Court File No. 03-CR-00002 161 Page 51 of 58
  • The UK would find itself under withering international criticism if the Governor refused assent (despite the UK’s and Bermuda’s Treaty-violating “caution” policy) in a manner which stifled Bermuda’s only chance to study cannabis effectively. Further, the UK does not appear to have the authority to ban such “research” discretion’s exercise by Bermudian officials. While an argument could be made that this type of research skirts the spirit of the Treaty ban, the cannabis activity it seeks to measure seems to be occurring anyway, and cannabis policy shifts have been shown to have little to no effect on cannabis use’s prevalence in the populace163 -- the spirit of the Treaty ban is in no way compromised, having had little if any effect towards its intended goals. This ideological bullet-proofing is only be heightened by the fact that cannabis and cannabis resins are exported to Bermuda by the US and UK illicitly, while none flows in the other direction owing to significantly lower costs in the larger nations. Even legalization would not significantly affect the flow direction of cannabis import/export, due to dramatically lower production costs and greater land availability in the US and UK. As previously mentioned, US and UK prices are 5-10 x less than in Bermuda, and so exportation risk is quite minimal. Additionally, Bermuda could arm itself against UK criticism by referring to the UN Treaty cultivation ban requirement, which only stipulates a mandatory ban where it is deemed by the enacting jurisdiction to be actually necessary for eradicating illicit activity164 (which in Bermuda, it has clearly not done, and so necessity is obviated). If managed diplomatically, and within UN limits relative to other countries’ compliance levels, Bermuda can regulate its cannabis trade. Failing to do so, by adopting some other method of purported softening of cannabis laws, is mere lip service to the international trend, and will leave in place the most damaging and most prevalent of the harms associated with cannabis and related law enforcement. It is suggested that, as in the case of medical cannabis, Ministerial discretion obviates any need for UK assent (by bypassing legislation requiring the Governor’s assent). For non-medical cannabis, the Treaty’s “research” exemption should prove adequate, as the UK has no mechanism to block it, and no room to criticise as the major trans-shipment exporter of illicit Moroccan and Pakistani cannabis resin to Bermuda. 163 164 MacCoun R. Evaluating Alternative Cannabis Regimes. 2001 (178) p 123; British Journal of Psychiatry. Articles 22, 28 and 36(1)(a), United Nations Single Convention on Narcotic Drugs, 1961 Page 52 of 58
  • (2) Form of Regulation (A) Private use -- It is recommended that users pay a licensure application fee, and that reasonable restrictions apply regarding: (i) Age; and (ii) Permissible places of use (public use remaining banned without special permits, just like alcohol). It is also recommended that those submitting applications be required to furnish anonymised medical background information, including consumption patterns, with updates during annual renewal. This would generate sufficient research to meet the UN’s “research” requirement. (B) Private cultivation -- For those consumers who wish to grow their own cannabis, it is recommended that a more expensive licensure application fee be implemented, as well as the health and consumption data provision required for mere private use. (C) Commercial cultivation -- It is recommended that a licensure application with a higher fee than for private cultivation be implemented, comparable to fees for alcohol vending, and that record-keeping and safety inspections be required. As in the case of commercial medical cannabis production (see above), commercial producers should be subject to at least occasional purity testing. (D) Commercial sales -- It is recommended that these licenses bear the highest fee among cannabis license types, and require the heaviest record-keeping and inspection burden. (E) Additional Government revenue streams -- It is recommended that Bermuda make health and consumption databases (anonymised for privacy) about cannabis available to foreign researchers on a subscription basis, in order to advance the cause of scientific research in a cost-effective, revenue generating manner. Page 53 of 58
  • (3) Tourists and Other Visitors As with medicinal cannabis (see above), it is recommended from a perspective of international law compliance, as well as simple economics, that Bermuda restrict all imports of cannabis similarly to carrots. In a regulated access system, consumers wishing to use cannabis in Bermuda should be required to obtain it here, as it is easy to produce and capable of revenue generation. 4. CANNABIS MYTHS DEBUNKED Numerous health concerns have been raised as objections to allowing cannabis use. While the ban on cannabis’ use has not alleviated any of these health concerns anyway, many of them are either unfounded, deeply exaggerated, or just plain disproved. The two major worries expressed have been lung health and schizophrenia, addressed below. (A) Lung Damage Smoking on its face seem an unhealthy activity, no matter what. In fact, long term studies of heavy cannabis users have shown that despite the presence of unhealthy tars in cannabis smoke, cannabis users have a lower chance of developing lung cancer and other serious respiratory illness than people who smoke nothing at all, or who smoke tobacco165. This has been attributed to the effects of cannabis drugs like THC, which dilates bronchioles166 and kills lung cancer cells167. This information, despite being counter-intuitive, is of the highest credibility: it was published by the US Government’s long-standing top anti-cannabis lung health researcher, Dr. Donald Tashkin168. 165 Tashkin D. Effects of marijuana smoking on the lung. Annals of the American Thoracic Society. June 2013; 10(3):239-47. 166 Grotenhermen F. Pharmacokinetics and pharmacodynamics of cannabinoids. 2003;42(4):327-60; Clinical Pharmacokinetics 167 9 Preet A. Δ -Tetrahydrocannabinol inhibits epithelial growth factor-induced lung cancer cell migration in vitro as well as its growth and metastasis in vivo. (2008) 27, 339–346; Oncogene , et al. 168 Tashkin D. Effects of marijuana smoking on the lung. Annals of the American Thoracic Society. June 2013; 10(3):239-47. Page 54 of 58
  • Despite contradictory studies he had previously published, Dr. Tashkin points out flaws in those studies which led to an errant conclusion that cannabis smoke causes cancer. The previous flawed conclusions were easy for medical professional and policy makers to digest, for obvious reasons, but have been called into question by more recent studies. Still, however, anti-cannabis agencies continued to rely and promulgate the de-bunked old studies. (B) Psychosis Cannabis use has long been alleged to lead to schizophrenia, which is characterized by psychosis. In Bermuda, some doctors169 quietly believe that a genetic bottleneck (“Founder’s Effect”) causes a higher rate of cannabis-related psychosis than can be found in other parts of the world. However, a recent Harvard study170 shows that cannabis does not, in fact lead to schizophrenia as previously thought. As it turns out, previous studies were too quick to conclude that schizophrenia, which surfaced after cannabis use, was caused by the use of cannabis. Correlation, in this case, was confused with cause as the studies failed to account for relevant variables and too quickly suggested a causative relationship171. The newest study accounts for additional variables and shows the relationship not to be causative, indicating that cannabis use does not cause schizophrenia. With regard to a persistent Bermudian physicians’ attitude that Bermudians are genetically more prone to cannabis psychosis, it was likely an error from the outset. A clue can be found in the fact that the observed psychotic reactions were seen by Bermuda physicians most prominently when cannabis users were injected with penicillin, and then turned violent172. This is a clue that the psychoses were not the result of cannabis at all, but of mould allergies instead. It should be noted that Bermudian street cannabis, mostly imported from the Caribbean and Mexico, has a high concentration of toxic mould, visible upon inspection, and which can be smelled in the form of fungal rot of the vegetative material173. 169 Un-named Retired Bermuda Medical Officer, personal correspondence with the author, June-October 2013. Proal A, et al. “A controlled family study of cannabis users with and without psychosis”. 4th December 2013; Schizophrenia Research. 171 Ibid. 172 Un-named Retired Bermuda Medical Officer, personal correspondence with the author, June-October 2013 173 Gordon A. Inspection of Bermudians’ illicit cannabis supplies 2007-2013. 170 Page 55 of 58
  • Since mould causes “histamine reactions”174 which can include violence as a symptom175, we should consider the possibility that psychosis observed among Bermudian cannabis users was due to the mould, and not any special Bermudian genetic propensity to go mad after smoking cannabis -- since the Harvard study176 strongly disputes that such an effect occurs elsewhere, even at lower rates than in Bermuda. The fact that injecting more mould (penicillin) caused and/or heightened violent reactions in cannabis users lends further support to the hypothesis, since penicillin on its own is capable of causing such a reaction177. Bermudian medical professionals are urged to reconsider their position on cannabis and psychosis, in light of: 1. the new Harvard study showing no causative link to schizophrenia178; and 2. the likelihood that previous violent reactions among cannabis users were caused by mould allergies, which can be avoided by discouraging the use of contaminated cannabis (i.e. replacing it with that which is grown domestically and stored properly). (C) Cannabis Myth Conclusions The phenomenon of reliance upon de-bunked medical studies, common to many anti-cannabis health concerns, is no doubt caused by anti-cannabis researchers’ failure to notice more recent studies which contradict previous ones, their minds having already been made up. One can easily imagine anti-cannabis groups like P.R.I.D.E. and D.A.R.E. simply gathering information which they are looking for (cannabis harms), and failing to notice (or even deliberately omitting) contradictory studies, regardless of which study had better controls and more complete data. 174 Lander F. Serum IgE specific to indoor moulds, measured by basophil histamine release, is associated with building-related symptoms in damp buildings. 2001 April, 50(4):227-31; Inflammation Research. 175 Nath C. Evidence for central histaminergic mechanism in foot shock aggression. 1982;76(3):228-31; Psychopharmacology (Berl). 176 Proal A, et al. “A controlled family study of cannabis users with and without psychosis”. 4th December 2013; Schizophrenia Research. 177 Silber, T. Psychosis and seizures following the injection of penicillin G procaine. Hoigne's syndrome. 1985 Apr;139(4):335-7; American Journal of Diseases of Children. 178 th Proal A, et al. “A controlled family study of cannabis users with and without psychosis”. 4 December 2013; Schizophrenia Research. Page 56 of 58
  • 5. RETROACTIVITY: WHAT ABOUT THOSE ALREADY CRIMINALISED? Cannabis policy and reform are topics which are deeply emotional, especially for those families which have been up-ended by Draconian punishments, which sometimes exceed those meted out for homicide179. If policy is to shift, indicating a societal acceptance that cannabis is not as harmful as once thought, then Parliament should give careful consideration to the plight of those whose lives have been upended by previous laws. First, their criminal record should be considered. It is recommended that Parliament instruct the Courts, via legislation, to vacate the pleas, convictions and sentences of at least some cannabis criminals, based upon the fact that neither the accused, nor their counsel, nor the Crown made/accepted such pleas in full knowledge of the relevant matters, from science to US Immigration law. The removal of the plea and conviction are likely to suffice to remove Stop List penalties, employment bars, and other legal discrimination against cannabis convicts. Even the US recognises, as a matter of supra-legality, the right to competent counsel; defence counsel (let alone judges) unaware of the facts about cannabis cannot have acted in full competence -- the US may recognise the vacated pleadings and convictions, and allow formerly banned Bermudians to enter. For those whose past cannabis crimes are deemed too serious for forgiveness (if any), Parliament should consider reducing their penalties. Beyond any formal legal retroactivity for past cannabis offenders, we as a society should also consider a mere apology. For decades, Bermuda’s cannabis penalties have been some of the Western Hemisphere’s stiffest. Judges and magistrates have accused cannabis criminals of contributions to violent crimes, poverty and other woes, when the laws themselves may have been more responsible than the accused. We have inflicted real hurt, needlessly and unhelpfully, upon our sons, brothers, and fathers (and less, frequently, upon female offenders). The resentment towards authority this has caused is a serious problem unto itself, as to a cannabis convict, the law itself seems unjust. While changing the laws may prevent it from worsening, it will not repair the damage already done. A sincere apology for seemingly wellintended errors could go a long way, and if sincere is likely to be taken at face value by many who have suffered the indignity of arrest and prosecution. 179 th Swan, R. Personal interview 15 September 2013 with a Bermuda Corrections Officer privy to inmates’ varying sentence lengths. Future Bermuda Alliance. Page 57 of 58
  • 6. CONCLUSIONS: It is recommended that neither “de-crim” nor outright legalization per se are actual policy options, and are forms to be avoided. It is instead recommended that existing Treaty exemptions (matters of Ministerial discretion) be deployed for both medical and recreational cannabis. It is advised that this can be achieved without primary legislative reform at all, but that such legislative reform can also be used to strengthen the allowable discretion, still within UN Treaty limitations. Finally, the Cabinet should publish a clear set of guidelines to medical cannabis applicants (and for recreation applicants, should that be what the Bermudian populace wishes), rather than having patients apply “in the dark” without knowing what rules and limitations are in place. Invisible rules violate fundamental concepts of law (since ignorance of published laws is no excuse, they must after all be published in order to allow citizens a chance to abide by them), and will also lead to delays in health care, an unacceptable state of affairs. The policy options for Parliament and Cabinet to consider are numerous, subtle and complex both scientifically and legally. Government is advised to proceed promptly, without pre-determined assumptions, and in consideration of all relevant facts, while not considering outdated, disproven or incorrect information. The timely need for medical cannabis access is a matter of life and death for many Bermudians, and the proposed 6 month delay, prior to a report being submitted to Parliament scheduled for June 2014, is an unacceptable delay likely to cost real human beings their very lives. When Government proceeds with humanitarian decency, then Bermuda will have a cannabis policy that is both good for the whole of Bermuda and internationally laudable. Page 58 of 58