On October 17, Canada will become the second country in the world after Uruguay to legalize recreational marijuana use. The newly legitimate industry is set to bring in a lot of money for the Canadian economy — based on Statistics Canada estimates, Canadians spent approximately $6 billion on cannabis in 2017. According to the 2015 Canadian Tobacco, Alcohol and Drugs Survey, 12 per cent of the population uses marijuana.
With production taking place domestically, the cannabis industry will generate more money than alcohol and tobacco, which depend on imports. As marijuana users and economists rejoice, many questions still remain, including how previous cannabis-related convictions will be handled.
Bill C-45, also known as the Cannabis Act, was passed by the Senate in June. However, there was little mention of what this change will mean for people who have been previously convicted or are currently serving sentences for weed-related charges. Currently, having a weed-related charge on your record can make finding a job, entering another country, and obtaining a loan difficult. Additionally, those with any criminal charges, including weed-related ones, will be unable to work in the cannabis industry post-legalization, a stipulation that many activists have found to be hypocritical. This lack of information has led many groups to mobilize and demand action from the government. The call for the pardoning of past convictions has resulted in other social movements, especially a call to examine the racially biased delivery of justice in this country.
The legal history of marijuana in Canada
Although Canada is among the first nations to legalize marijuana, it was also one of the first to make it illegal. Marijuana was first made illegal in Canada in 1923, under Prime Minister William Lyon Mackenzie King. The drug was a last-minute addition to a bill that was set to make heroin and codeine illegal. At that time, few people knew of or used marijuana in Canada, and there is no recorded evidence that its criminalization was debated in Parliament.
Movements to legalize marijuana began in 1969, through the Le Dain Commission. Completed in 1973, the commission’s report recommended that the Pierre Trudeau government decriminalize marijuana possession and consider the possibility of legal distribution. The recommendations were never acted upon.
In 2001, medical marijuana use became legal under the guidance of the Canadian Medical Protective Association and Health Canada. When Justin Trudeau was elected prime minister in 2015, the decriminalization of weed was one of the promises he made to voters. While this promise seems to be coming to fruition, there is still a vast amount of missing information about what will happen to the hundreds of thousands of people who have been arrested for possession during the nearly 95 years in which marijuana has been illegal.
A racial divide
The general perception of marijuana and police in Canada is that the laws and consequences are not as dramatic as those in the United States.
In fact, after medical marijuana was legalized in Canada, hundreds of Americans sought refugee status in order to avoid legal persecution for using or growing medicinal marijuana. However, the Canadian government has also dealt harsh penalties to those who have participated in marijuana-related activities prior to legalization.
Statistics Canada stated that police had reported 55,000 cannabis-related offences in 2016. Although this number is an 11 per cent decrease in offences from the previous year, it is important to note that these arrests are not dealt with evenly across all communities. While cannabis use in Canada is, for the most part, equal across ethnicities, people of colour in Canada are arrested disproportionately more. This is an issue that has been widely discussed in the United States, with the American Civil Liberties Union reporting that Black people are 3.73 times more likely to be arrested for marijuana, based on arrests from 2001–2010.
While this issue is widely publicized in the United States, less is known about these statistics in Canada. One hurdle in conducting this research is that, unlike in the United States, there are no centralized records regarding race for arrests in Canada. Nevertheless, it has been demonstrated that Black and Indigenous people are highly overrepresented in Canadian prisons. According to the John Howard Society of Canada, a non-profit dedicated to reforming the justice system, Black people in Canada are overrepresented by over 300 per cent and Indigenous people by almost 500 per cent relative to their respective populations as of 2017.
According to a Vice News article by University of Toronto professor Akwasi Owusu-Bempah and PhD student Alex Luscombe, there is a large divide in arrest numbers for Black and Indigenous people and white Canadians across the country. Another Vice article presented analyses of police reports from Regina, Halifax, Calgary, Edmonton, Vancouver, and Ottawa in 2017. In Regina, for instance, Indigenous people were nine times more likely to be arrested for possession of marijuana than white people. The Toronto Star conducted a similar analysis in 2017 for Toronto, which revealed that Black people with no criminal convictions were three times more likely to be arrested for possession between 2003 and 2013.
The reports highlight an uncomfortable truth about the Canadian justice system that is not often discussed. The disparities in prison representation demonstrate that there is much to be done in the Canadian justice system, and that a lack of a pardoning system will impact people of colour especially.
The bureaucratic process of amnesty
Several states that legalized marijuana in the past few years faced similar struggles when handling amnesty.
Colorado has permitted marijuana for recreational purposes since 2012. As of this February, the state was considering granting clemency for inmates who had been charged for non-violent marijuana-related crimes. By applying for clemency, the inmates would have the opportunity to be pardoned by the governor of the state and have their sentences shortened. While discussions to offer this opportunity are the beginnings of a righting of past wrongs, they are also reflective of the state’s overcrowded prisons.
In California, actions are already being taken to expunge the records of those with weed-related crimes on their record. By signing Proposition 64 into law in 2016, the state eliminated several weed-related laws and allowed cases dating back to 1975 to be reviewed. However, without adequate information on how to begin the process of expungement, only 23 people in San Francisco have begun the process. The decision to offer pardons is not without opposition. The Los Angeles Times reported that Californian senator Jim Nielson equated pardons for acts that used to be illegal with a “free pass.”
The biggest hurdle that individual states face is that, federally, marijuana is still illegal. Although Canada will not face this issue, the process of expunging records would be far from automatic. Based on the structure of the Royal Canadian Mounted Police’s (RCMP) records, it is difficult to discern which drug charges are marijuana-related and which are not. While the RCMP was able to erase the long gun registry for all those outside of Québec in 2013 within four days, the process will be a much more laborious task for weed-related charges.
At present, it is up to individuals to initiate their own process for pardons in Canada. In order to be considered, they will have to apply to the Parole Board of Canada five years after their sentence has been served. This process would not be advantageous to those currently serving a sentence, and the $631 fee could discourage or prohibit many from applying.
The official stance
If there are plans to pardon or expunge criminal records in Canada, the government has not yet publicized them. In an interview with CBC Radio, Minister of Border Security and Organized Crime Reduction Bill Blair asserted that “until the law is repealed and replaced… it remains in effect. And so, quite frankly, it is premature to talk about what we might do about records… Once the law is repealed and replaced on October 17th, then we will turn our mind to dealing with those records in an appropriate way.”
At a public forum in April 2017, Trudeau acknowledged that marijuana-related charges had disproportionately affected vulnerable and marginalized Canadians, but he would not divulge whether or not pardons would become available. At a news conference this past June, he said that “there is no point looking at pardons while the old law is on the books.”
The marijuana task force assembled under the Trudeau government, including law enforcement, politicians, and doctors, was assembled to help shape policies regarding marijuana. However, the group assembled does not represent the racial diversity of those who have been disproportionately affected by cannabis criminalization. As the law is being changed at the federal level, Ontario’s provincial government will have little control over how criminal records will be dealt with.
The role of activism
Activism has been at the heart of the marijuana legalization journey. Both individuals and organizations have spoken out about the injustice of marijuana criminalization in Canada.
Canadian non-profit NORML asserts that marijuana use is an individual freedom that the government should not control. They supported the Liberals in the 2015 election, calling the campaign the first “referendum on legalization” in Canada.
The Canadian Cannabis Coalition has brought cannabis stakeholders across a range of sectors together since 1999, with the goal of “facilitating access to a safe supply of cannabis through research, education and advocacy.”
A poll by The Globe and Mail and Nanos Research indicated that 62 per cent of Canadians are, to some degree, in favour of pardoning individuals with weed-related criminal records. Additionally, the Globe noted that some are unsatisfied with the lack of information and are working toward gaining justice.
The Campaign for Cannabis Amnesty is one such group that is advocating for those who have been previously charged with weed-related crimes. Toronto-based lawyer and Campaign Director Annamaria Enenajor argued that merely removing the fees for pardons is not enough for the government to reconcile the consequences that those charged with marijuana-related crimes have faced. In an earlier interview with Vice, she said that “it’s not only about reducing barriers in terms of access to justice and fairness and equality, it’s about actively pursuing it as part of their policy platform.” The Campaign for Cannabis Amnesty has remained a strong voice in the movement for pardoning past weed-related crimes. The group also presented a private member’s bill alongside New Democratic Party MP Murray Rankin that would delete the record of a person’s minor, non-violent possession charge.
Legalities moving forward
Although recreational cannabis will be made legal, there will still be stiff penalties regarding regulations from Bill C-45. According to a CTV interview with marijuana activist Jodie Emery, maximum sentences can go “up to 14 years, equating cannabis to pornography with children, terrorism, and assaulting police.”
Crossing the border to the United States might also become more complicated, with US Border Control asserting that Canadians can be banned from entering the US for marijuana use or intended involvement in the US marijuana industry. So far, there is no specific information about how checks will be made and how penalties will be handed out.
October 17 will not mark the end of the work that activists have been doing. It will become apparent in the coming days if the government will maintain its promises to discuss pardoning charges after legalization takes effect. In order for legalization to be a celebratory moment in Canadian history, the government must answer these questions of marijuana amnesty.
