Comprehensive Cannabis Policy Review -- Bermuda -- Alan Gordon

2nd January, 2014

Bermuda Cannabis Policy Reform:
Medicinal and Recreational Considerations for the
Bermuda Cannabis Reform Collaborative Committee

Alan Gordon, BA, LLB

alangordon@logic.bm

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 https://www.facebook.com/groups/onebermuda
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
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

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
http://www.mpp.org/assets/pdfs/library/MMJLawsSummary.pdf.
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
http://www.mpp.org/assets/pdfs/library/ 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 http://www.mpp.org/assets/pdfs/library/
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 http://www.idmu.co.uk/cannabis-prices-2011.htm

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 http://www.idmu.co.uk/cannabis-prices-2011.htm .

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 http://www.ukcia.org/medical/gwpharmaceuticals.php
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 http://www.clear-uk.org/gw-pharmaceuticals-and-the-ukhome-office-corruption-on-a-grand-scale/
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
th
th
24 Jan 2012, accessed 29 December 2013 at http://www.clear-uk.org/gw-pharmaceuticals-and-the-ukhome-office-corruption-on-a-grand-scale/
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 http://www.sarahmcculloch.com/activism/2013/clearlegal-medical-cannabis-claim/ .
52
Reynolds P. Legal Medicinal Cannabis in Britain ACHIEVED! 14 September 2013; CLEAR www site viewed 29th
December 2013 at http://www.clear-uk.org/legal-medicinal-cannabis-in-britain-achieved/.
53
Ibid.
54
Tran M. Government Drug Advisor Dr. David Nutt Sacked. 30th October 2009; The Guardian.
55

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

57
th
th
24 Jan 2012, accessed 29 December 2013 at http://www.clear-uk.org/gw-pharmaceuticals-and-the-ukhome-office-corruption-on-a-grand-scale/

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 http://www.ukcia.org/medical/gwpharmaceuticals.php
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

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
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 http://allegiancewellnesscenter.org/wp-content/uploads/2013/08/Real-Scientific-HempOil.pdf .
98
th
“Lab Tests”. Real Scientific Hemp Oil. 28 December 2013 at http://realscientifichempoil.com/lab-tests/
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
http://www.beyondthc.com/dixie-elixirs-unfit-for-human-consumption/ .
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
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 http://www.blogtalkradio.com/peterotoole/2013/12/14/from-seed-tocure-dr-robert-melamede-talks-about-pediatric-cannabis-treatments .
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
http://www.beyondthc.com/wp-content/uploads/2013/03/Dixie-one-page.pdf.
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
http://www.blogtalkradio.com/peterotoole/2013/12/14/from-seed-to-cure-dr-robert-melamede-talksabout-pediatric-cannabis-treatments .
112

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 http://www.gwpharm.com/GW%20Pharmaceuticals%20plc%20Announces%20
US%20Patent%20Allowance%20for%20Use%20of%20Cannabinoids%20in%20Treating%20Glioma.aspx .
114
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
http://www.blogtalkradio.com/peterotoole/2013/12/14/from-seed-to-cure-dr-robert-melamede-talksabout-pediatric-cannabis-treatments.

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 https://www.facebook.com/groups/onebermudaalliance/ 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. CNN.com .9th august 2013.

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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
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
http://www.oas.org/csh/ 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
https://www.cia.gov/library/publications/the-world-factbook/fields/2086.html .
157
th
“Switzerland”. Marijuana Travels www site accessed 30 December 2013 at www.marijuanatravels.com/
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

Comprehensive Cannabis Policy Review -- Bermuda -- Alan Gordon

Comprehensive Cannabis Policy Review -- Bermuda -- Alan Gordon

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Comprehensive Cannabis Policy Review -- Bermuda -- Alan Gordon