Cannabis Legalization: Racial Disparities in Drug Convictions and the Importance of Amnesty

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By Sandy Tat

The legalization of recreational cannabis use on October 17th 2018 marked a turning point in Canada’s national public policies. With the passing of the Cannabis Act, Canadians aged 19 and up gained the freedom to sell, grow, and smoke pot legally.

On the same morning of October 17th Public Safety Minister Ralph Goodale announced that the Liberal government would pass legislation that would provide those who have been convicted of cannabis possession under 30 grams with the opportunity of applying for a pardon. A pardon, also known as a record suspension, sets aside a convicted offense but not erase a conviction. However, a pardon  would  improve access to employment, educational opportunities, and facilitate reintegration into society. Minister Goodale also confirmed that the pardon application fee of $631 would be waved, therefore removing a potential prohibitive cost for applicants. Presently, mandatory wait times range from three to ten years before convicted citizens are eligible for a pardon, however, Minister Goodale promised that those seeking a cannabis conviction pardon would be able to apply immediately.

Drug decriminalization advocates and cannabis users have celebrated the landmark legalization of cannabis. However, cannabis amnesty proponents question whether the proposed reforms are enough to redress the historical wrongs of cannabis convictions, especially given the overrepresentation of Black and Indigenous peoples in cannabis-related arrests. Despite Canada’s failure to systematically collect and publish racially disaggregated data within its justice system, available statistics consistently indicate that Black and Indigenous populations face a disproportionate rate of cannabis-related arrests despite relative similar rates of cannabis use across racial groups in Canada. A 2017 report by The Toronto Star found the Toronto police were three times more likely to arrest Black people with no history of criminal convictions for cannabis possession than White people of similar backgrounds. Similarly, Vice News reported that Indigenous people in Regina, Saskatchewan were nine times more likely to face arrest for possession than White people between 2015 to 2017.

The differential application of criminal laws on racialized groups is not a new phenomenon in Canada: Indigenous peoples were subject to alcohol prohibition under the Indian Act of; the Opium Act of 1908 was founded on anti-Asian immigration sentiments; the 1923 criminalization of cannabis followed the publication of the 1992 book The Black Candle which equated the rise drug use in Canada with the increasing immigrant population. Today, racial disparities in cannabis-related convictions are the result of broader policing practices, such as the practice of “carding” and the use of police discretion in choosing who to arrest and charge while letting others off with a break. Due to these heavily racialized policing practices, Black and Indigenous individuals have historically faced disparate drug-related arrest rates compared to the rest of the Canadian population. As a result, these groups are more likely to suffer from the consequences of having a criminal record, such as diminished job opportunities, being barred from some university programs, restrictions on travel, disqualification for mortgages, and more.

With the powerful role that drug laws have had in incarcerating Black and Indigenous peoples in Canada, the legalization of cannabis is a meaningful step towards redressing institutions that perpetuate racial inequities. Cannabis amnesty, however, still carries significant implications for Black and Indigenous peoples because it is these racialized communities who have been disproportionally impacted by Canada’s previous drug laws. It is no surprise that cannabis amnesty advocates are frustrated with the Federal Government’s decision to offer expedited and cost-free process for pardon applications as opposed to the proactive expungement of such records. While expungement appears to serve the same practical purpose as pardons, an expungement permanently removes criminal convictions deemed historically unjust. Public Safety Minister Goodale has rationalized the Federal Government’s decision to support pardons over expungements comes from the belief that that the latter should only be reserved for instances of “profound historical injustice that needed to be corrected”.

Annamaria Enenajor, a Toronto-based lawyer and the Director for the non-profit Campaign for Cannabis Amnesty, champions the automatic expungement of low-level cannabis convictions over individual pardon applications. She writes, “the whole point of amnesty is to prevent all prejudice arising from a conviction going forward and a pardon does not fully accomplish this. If the government is serious about the purpose of amnesty, expungement is the only option.”

As of December 1st 2018, Bill C-415, proposing the expungement of minor non-violent pot possession, has yet to be tabled. However, it is evident that the redressing of historical inequities in the application of Canada’s drug laws extend beyond that of cannabis decriminalization and amnesty, but also include that of broader policing practices throughout municipalities in Canada.

Sandy Tat is a 2020 Master of Public Policy Candidate at the University of Toronto’s Munk School of Global Affairs and Public Policy. She is also pursuing a Collaborative Specialization in Public Health Policy at the Dalla Lana School of Public Health. She holds a Bachelor of Health Sciences in Biomedical Discovery and Commercialization from McMaster University. Her policy interests include mental health, gender equity, and international development.



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