Legalisation in Canada Fails to Atone for its Racist Legacy

In October 2018, Canada became the second country worldwide to fully legalise recreational marijuana. Standardised by provincial governments, it will be legal to possess up to 30 grams for ‘personal use’ including, within some regions, in public spaces.

Amid the plethora of stoner jokes shamelessly populating Canadian mainstream media, one more serious aspect remains relatively unaddressed. It’s well and good that Canadians are now free to get as baked as they choose, but the free-wheeling policy doesn’t cancel out the legacy of the substance’s illegal past. In fact, ambiguities within the legalisation process leave a portion of the population in legal limbo and raise questions regarding the government’s priorities – particularly on race. According to the Canadian government, the systematic and disproportionate awarding of marijuana-related criminal convictions to marginalised communities in Canada fails to constitute a “historical injustice,” despite it having severely limited freedoms as well as economic and social mobility. Without that necessary label, there is little hope for reconciliation.

Image courtesy of PublicDomainPictures, © 2018, some rights reserved.

Statistical data has shown that marijuana was extremely popular among Canadians well before legalisation. Despite this, it’s no secret that arrests and convictions have been disproportionately applied to low-income, ethnic minority communities. A study conducted in 2017 by a Canadian newspaper concluded that in the main city of Toronto, black citizens were three times more likely to be arrested for marijuana possession (including ‘personal’ amounts) than white people with similar criminal backgrounds. What’s more, they are also disproportionately detailed for bail hearings rather than being released at the scene – a traumatic process leading to a long-term distrust of law enforcement and legal systems. In the rural city of Regina, First Nations Canadians were nearly nine times more likely to be arrested than whites for pot possession. Across the country, the ethnic and community-based disparity in marijuana-related arrests belies the established statistics showing very little variation across racial groups. In fact, Canada’s Prime Minister, Justin Trudeau, caused a stir last year when he admitted in an interview that his late brother, Michel, had had a criminal record for pot possession annulled due to his social connections – a luxury obviously not awarded to most arrestees for the same charge.

For these reasons and more, marijuana-related law enforcement is often highlighted as a case of over-policing of minority communities, and not just in Canada. Although a relatively minor charge, it results in a criminal record – leading to harsher future encounters with law enforcement, limited access to housing and accommodation, obstacles in employment, and extreme difficulties leaving the country. One would assume that in legalisation’s wake those days would be far behind us. However, an estimated 500,000 Canadians are still saddled with criminal records for that very offence – most of them, as we now know, minorities.

The persisting effects of these practices aren’t easy to undo, and so far, the government hasn’t provided much assurance regarding concrete plans to address it. In the aftermath of the Cannabis Act, the Canadian Public Safety Minister announced upcoming legislation that would enable those convicted of possession of marijuana to apply for official pardons more accessibly. With the waiting period and application fee waived, the responsibility then falls to the individual to obtain their own pardon. However, no specific date for it was given and it’s clear that the government had been waiting until legalisation was finalised to even begin drafting it. There’s no telling when things will change, and in the meantime those records remain legally binding.

In addition, the government’s idea to pardon criminal records is problematic in itself.  Although reportedly quicker and easier to issue, a ‘pardoned’ record still appears on background checks and is accessible in digital databases. Expunging the records, on the other hand, means that the offence is deemed to have never occurred in the first place and the record destroyed entirely. When asked why pardons were their ideal choice for this particular scenario, Governmental representatives declared that expungements are reserved for cases of “profound historical injustice,” a category in which the marijuana question didn’t rate (by way of context, the most recent use of expungements was with June 2018’s Bill C-66, which erased records of Canadians convicted of homosexuality-related charges before its legalisation). This assessment leaves the government unable to justify total erasure; leaving hundreds of thousands of citizens with criminal records on a charge that no longer exists. Although convictions on pot possession don’t quite carry the same weight as human rights violations against the LGBTQ+ community, those convicted will still be forced to navigate life with a criminal record as it would still technically exist – enough for it to appear on job and rent applications or at the American border.

As a result, amnesty movements have instead called for expungement, arguing that depriving predominantly non-white communities of employment, housing, and freedom by slapping them with lifelong criminal records has contributed to racial disparity and limited social mobility. Furthermore, statistical data presenting certain races to be ‘more criminal’ can harm perceptions towards minorities despite widespread knowledge of what is apparently institutionalised prejudice. The racial element is also exacerbated by the fact that the largest beneficiaries of legalised marijuana are predominantly white, such as a former Toronto police chief who currently stands to head a multi-million dollar cannabis corporation in which he himself invests. In essence, wealthy Canadians in positions of power continue to profit from the cannabis industry while black and First Nations communities live with its long-term negative effects. When seen in this light, this systematic and racially based discrimination could arguably constitute a ‘historical injustice,’ which would force governmental bodies to consider expungement more seriously.

Unfortunately, logistical shortcomings make any amnesty difficult to put into practice. According to news sources, criminal records of those convicted of possession of anything prohibited by the Controlled Drugs and Substances Act are often labelled simply as ‘possession,’ without specifying the actual drug or substance. This means that save for investigating every single case individually, Canada’s Federal Police have no way of distinguishing records for pot possession from ones given for harder substances. Although individual investigations are both possible and, if the government is to stay true to their word, necessary, it’s considerable time and expense that will only make the process more arduous and frustrating for those affected by it.

At this point, the cannabis debate raises more questions than it does answers. However, it’s clear that throughout Canada’s history its role in law enforcement has been deeply racist – and so far, not much has been offered in terms of improvement. That being said, the process of legalisation is still very much in its early stages, with plenty of opportunity for lobbying and ensuring that voices are heard. After all, nobody seems to know how and when this unprecedented narrative will end – not even Justin ‘Your New Dealer’ Trudeau himself.

Banner image: Image courtesy of Flickr, © 2014, some rights reserved.