The Constitutional Court can learn from Canada’s Cannabis Act
We need parliament and the Court to assign the correct meaning and definitions to ensure the correct limitations and regulations are applied
It has been more than a year since the Constitutional Court legalised the private cultivation, use and possession of cannabis by an adult for their own consumption.
Parliament has 10 months left to rectify the relevant legislation. If it fails to do this, the decision of the highest court in SA will become final.
In a previous article, we identified hazy areas that came about as a result of the judgment. We unpack the specific areas below and compare it with the law in Canada, where recreational cannabis use was legalised and regulated in 2018.
Definition of privacy
“Private” and “private place” are not clearly defined in the Court judgment. Canadian law, interestingly, does not specifically refer to either definition in its Cannabis Act. The rules relating to the cultivation, possession and use of cannabis in Canada differ from province to province and are governed by provincial legislation and municipal laws. While certain cities prohibit smoking of cannabis in all public areas, others have designated smoking areas. Prohibition is also dependent on the manner of consumption.
Since “in private” and “private place” have not been defined by the Court, it is left open to interpretation and many loopholes have been created. One of these specifically relates to the application and regulation of what is deemed to be “in private” and what is deemed to be a “private place”.
The question then arises whether being in possession of and using cannabis in the privacy of your car falls within the definition of “in private” and “private use” as contemplated by the Court. This creates a contradictory situation, because if a person is allowed to have in their possession and use cannabis “in private” within a public setting — for example, in a car parked in a public parking — but the person in the car is using cannabis “in private”, we are leaning towards allowing possession and use of cannabis in public.
This begs the question — how much is too much?How much can be legally grown in a person’s garden within the SA legal context is not specified either
The Cambridge dictionary defines “private” as “only for one person or group and not for everyone” and “in private” as “if you talk to someone or do something in private, you do it without other people being present”.
“Public” on the other hand is defined as “relating to or involving people in general, rather than being limited to a particular group of people”, and “in public” is defined as “in a place where people can see you”.
The Canadian Cannabis Act specifically defines a “public place” to include any place to which the public has access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view. The same provision will have to be applied in SA to exclude the smoking of cannabis in cars whether in public view or when being driven. Whether or not hot-boxing should be allowed, in which passengers smoke cannabis in a vehicle while it is being driven, is yet another point for consideration by parliament.
We need parliament and the Court to assign the correct meaning and definition to each of these terms to ensure the correct limitations and regulations are applied. Currently, this is left open to interpretation and the police have the discretion on how to enforce the law in this regard.
This creates a second conundrum. People have their own interpretation of what the Court meant with these terms, which weren’t clearly defined. We are left with a situation where people interpret the judgment one way and the police may interpret it another way. This has the potential to lead to many charges and unnecessary use of police resources as well as the risk of cases of unlawful arrest being made against the police.
The Canadian Cannabis Act allows an adult to have up to 30g of dried cannabis in their possession in public. This is something that the Court did not specify. The Canadian law also provides that a person under the age of 18 may not legally possess cannabis, but will not be prosecuted if they have less than 5g of dried cannabis in their possession.
This begs the question — how much is too much?
How much can be legally grown in a person’s garden within the SA legal context is not specified either. Canadian law allows for an individual to possess up to four cannabis plants per residence. If an adult is allowed to grow cannabis in a private place for their private use and possession, imposing a limit on the amount of plants allowed to be cultivated in private will be beneficial in so far that it will prevent temptation to sell the cannabis when a person’s own stock becomes too much for their private and personal use.
Purchase of seeds
The purchasing of seeds is a prerequisite to the growing, possession and use of cannabis in private, in line with what the Court judgment says; however, no provision was made by the Court for the legal purchase of the seeds. It thus remains up to the department of agriculture, forestry and fisheries to come up with a legal framework that will allow members of the public to obtain the seeds legally.
As it currently stands, buying the seeds in SA remains illegal. The Canadian legal framework includes cannabis seeds in the definition of cannabis and, as such, the seeds cannot be sold to any person or an organisation unless it is authorised by the Cannabis Act.
In terms of the Canadian Cannabis Act and its regulations, a licensed cultivator may only sell cannabis, cannabis plant or cannabis plant seeds to authorised persons. All licensed holders authorised to sell cannabis must comply with specific regulatory requirements in regard to purchasing cannabis and seeds, possession of fresh and dried cannabis, and other regulations.
Adult Canadians can then purchase seeds and plants from authorised provincial and territorial retailers and online platforms. An individual can also only purchase up to 30g of cannabis flower, or an equivalent, in other formats and a maximum of four plants are permitted to be purchased at once.
Employment and traffic violations
Breathalyser tests have traditionally been used to determine whether a person is driving under the influence of alcohol and whether their blood alcohol level are within the legal limit. A similar test is being developed in SA which could tell employers or traffic officers if a person is high on cannabis at the time of taking the test. This would be determined by means of a saliva sample.
Despite all the development and advancement made by Canada, the country does not have anything to this extent to provide this service. Currently, the police have been trained to detect impaired drivers using tools such as the field sobriety tests. If a police officer suspects that a driver is impaired, he may have a driver undergo an examination by a police officer who has received training as a drug recognition evaluator. Canada’s federal government is also developing roadside screening devices to detect cannabis in drivers and plans to set maximum blood levels for THC.
The Canadian Cannabis Act has also amended Canada’s Non-smokers’ Health Act to prohibit the smoking and vaping of cannabis in workplaces. The Canada Labour Code deals with hazards to health and safety in the workplace and encourages policies to be adopted to include hazards posed by impairment.
If Parliament fails to define the meaning of “in private” and “private use” and they are too blazed to address the hazy areas identified, it will fall upon the many different courts in SA to do so and we may end up with a situation where it will land back in the Constitutional Court again for a more decisive determination.
It is ultimately up to Parliament to ensure that this does not happen. Especially because the taxpayer is carrying the growing cost to put a sustainable regulatory system in place to address the high need for access.
• Smit is Fasken partner in the life sciences group and Gilbert is a Fasken candidate attorney.