For the third time, and probably for good, the judges of the Israeli Supreme Court rejected the petition that requested, since 2019, to abolish the criminalization of cannabis consumers in Israel and to regulate a legal market.

 

The argument for the current rejection, similar to the two previous petitions, is that the decision on the issue is not in the hands of the court and should be in the hands of the government and the Knesset (The Israeli Parliament).The current petition was submitted at the end of 2021, after a bill for the legalization of cannabis that the government promoted at the time at a satisfactory pace (among other things – due to pressure created by the second petition) was deleted following the fall of the government and the dissolution of the Knesset. This decision of the Supreme Court judges in Israel fundamentally contradicts decisions made by Supreme courts of justice in 9 countries in response to similar petitions, which established – as the petitioners in Israel demanded to establish – that the criminalization of cannabis consumers violates the principle of individual freedom and the fundamental law of human dignity and freedom.

 

The Israeli judges ignored these rulings submitted as part of the rejected petition. This time, as mentioned, the judges rejected the petition, as they insisted that this is an issue that is the responsibility of the Knesset and the government and that they are the ones who should decide about it and not the court – despite the claim of the petitioners that the Knesset and the government frequently fall and meanwhile the criminalization of cannabis consumers continues.

 

According to them: ” Indeed, the deep political crisis that has befallen the State of Israel in recent years raises difficulties for the progress of the legislative procedures on the subject in question, but at the same time… the relevant parties in the government and the Knesset do not stand still but conduct a constant examination of the issue “.In this regard, the judges note, among other things, the “Administrative Offenses Regulations” that came into force on April 1 of this year (2022) and determined that the use of cannabis will be considered an offense with a fine of only 500 NIS, without conditions regarding how many times the citizen has been caught before or whether he has committed a related offense or whether or not he has a criminal record as stipulated in the previous model that was valid Between the years 2019-2022.

 

“There have been many transformations on the issue, which have found expression in a number of recent legislative proceedings… Hence, the need to exhaust the debate on the matter by virtue of the principle of separation of authorities and mutual respect between them – which was the basis of the decisions given in the previous petitions – is still in full effect, and accordingly, the decision of the current petition to be rejected Decided.

 

“For an incomprehensible reason, the judges, in their words, also link the steps being taken in the field of medical cannabis to the legalization and criminalization issue that was the basis of the petition. According to them, in the last Knesset (the 24th), “on October 13, 2021, the plenary approved in an early hearing the bill regulating the use of cannabis for medical purposes, which was intended to regulate the cannabis market for medical purposes. However, as the petitioners informed us, on June 22, 2022, the proposal was rejected, but at the same time, the Minister of Health announced that he would work to promote the issue within the scope of his office.

 

“It should be noted that even if one accepts the judges’ position that the issue of medical cannabis involves in some way the issue of regulating the recreational market (“legalization”), then the promise of the Minister of Health to promote the issue within the scope of his office remains a promise for the time being.

 

Although the minister submitted a draft of regulations concerning the transition from a licensing regime to a prescription regime – something that there are broad sections of the Israeli public who define as “a step towards legalization” – but in practice, this initiative has also not been accomplished, and it is not sure if it will be completed soon, as Israel is once again in an election period.

 

Following a petition to the local High Court of Justice, the Israeli Ministry of Health published a draft for public comments last July with an amendment that would allow driving under the influence of cannabis for the first time in Israel. However, this is a low permitted limit compared to countries that have approved legalization (only up to 3 nanograms per ml of blood), so it is expected to continue to take innocent people off the road. As we know, the remains of cannabis components stay in the body long after consumption, even when the effect has worn off.

 

Today, cannabis consumers, even if they do not smoke near driving time, will be considered in Israel as having driven under the influence of cannabis. Their license will be revoked for up to two years because, as mentioned, the remains of cannabis components, unlike alcohol, remain in the body for many days after use. In the draft, published following a petition by the editor of the Israeli cannabis magazine, Oren Leibovitch, the Ministry of Health proposes to allow driving under the influence of cannabis as long as there are up to 3 nanograms per ml of blood in the body. In this case, the driver will not automatically be considered a criminal, provided that it is a private vehicle, the driver is 24 years old or older, who is not a new driver, and not carrying other drugs. Also, according to the ministry, “the settlement does not allow or authorize driving while legally taking a dangerous drug if this causes the individual to drive “recklessly, or negligently, or at a speed that, under the circumstances of

 

the case, poses a danger to the public, even if it is less than the maximum speed set. “That is, the Ministry of Health leaves reservations that effectively cancel the proposed regulation. One example is when a police officer determines that the driver was driving at an increased speed or inappropriately, at the discretion of the police officer, even if the driver did not exceed the speed limit on the road.

 

Proposed wording, “cannabis will not be considered a dangerous drug if up to 3 nanograms of THC per milliliter of blood or up to 6 nanograms of THC per milliliter of plasma/serum is found in the body of the driver or the person in charge of the vehicle. The proposed regulations determine when a person who uses cannabis wouldn’t be considered ‘drunk. ‘”This model, which is like driving with alcohol (the law permits driving with alcohol in the amount of 290 micrograms for adult drivers), theoretically allows driving under the influence of cannabis. Still, it should be noted that 3 nanograms are a very low threshold.

 

For comparison, in the countries that have approved legalization, the limit is usually 5 nanograms to 15 nanograms. So a change as proposed by the Ministry of Health will continue to result in punishment and removal from the road of drivers who have not recently smoked but still have traces of cannabis components in their bodies. However, it is not certain that the government will be able to put the regulations into effect without the support of the opposition, similar to the “prescription cannabis” regulations currently in the stages after public comments.

 

Courts in Israel have called on the local government to regulate the issue of patients driving under the influence of cannabis in several cases in recent years, especially after some of them even published judgments that cancelled punishment for patients caught driving under the influence of cannabis.