The first legal dance with Mary Jane approaches. But police are still busting people for having pot. Nearly 18,000 of them were in 2016. The rate is decreasing, but there are now about 500,000 Canadians with criminal records due to marijuana possession.
They may not be as mellow as you’d expect about it. In Canada, unlike in some other jurisdictions that have legalized the bud (like California), our new law is not retroactive. If you get busted for ganja now, you’ll still be a criminal when the final paperwork is dry. Meanwhile, your fellow age-of-majority Canadians will be lighting up in legalized bliss.
This inconsistency has sparked a new debate on creating an amnesty, which would take all chronic charges off the books.
“I think there is a strong argument to be made for pardoning persons previously convicted of cannabis-related offences,” says Archibald Kaiser, a cross-appointed professor in Dalhousie’s law school and faculty of medicine. “This would acknowledge…that we recognize there were no harms done by previous offenders that required the stigma and penalty of the criminal law.”
Early this calendar year, Prime Minister Justin Trudeau and public-safety minister Ralph Goodale expressed openness to considering an amnesty. “We know that the current legislation is hurting Canadians and criminalizing Canadians who it perhaps shouldn’t be, but that is an engagement we will take once we have a legalized and controlled regime in place, not before,” Trudeau said in a press conference earlier this year.
Kaiser says, given the legal history, it can be done. In 1990, after the Supreme Court provided “a more nuanced assessment of self-defence for women,” the feds reopened some cases where women were wrongly convicted. “The Self-Defence Review is an illustration of the government accepting that findings of guilt need to be re-examined in light of evolving law and public policy.”
On a much larger scale, the U.K. recently posthumously pardoned men historically convicted of homosexuality. Perhaps with marijuana we don’t need to wait so long.
While Kaiser focuses on the scope of impact (the hundreds of thousands of people an amnesty could help) advocacy for wiping the books clean on the “crime” of toking and helping those most affected by the 95-year war on weed comes from those most excluded in consultations on the matter.
“This isn’t a race-neutral thing,” explains El Jones, an educator and activist who works with prisoners. “There has been no recognition of the historical criminalization of the black community: mass profiling and arrests. This is the excuse the cops have used to pull people over. ‘I smelled weed.’”
A lot of evidence supports her position. Last year, CBC News found that police are three times more likely to stop black people in Halifax for a “random” street check than white people. Only 2.3% of the population of Nova Scotia is black, yet 14% of people in sentenced custody are Black. Last summer, a Toronto Star investigation showed that about a third of marijuana charges from 2003 to 2013 were against black people. Nationally, 12% of federal prisoners with drug charges are black. All this despite numerous studies showing no discernable difference in cannabis-usage rates among ethnic groups.
As Akwasi Owusu-Bempah, a sociology professor at the University of Toronto, wrote in a blog post for the Broadbent Institute, “Minor cannabis offences can also serve as a ‘gateway’ into the criminal justice system for people who become ‘known to police,’ increasing their chances of further criminalization and social marginalization.” With a criminal record, finding a job or getting a loan becomes beyond difficult.
“An amnesty would be a simple thing to do, but it can’t undo all the other effects of criminalization stemming from the possession charge,” Jones says. “People in the black community are saying the taxes on cannabis should be used to pay for programming in black communities.” Owusu-Bempah recommends funding for schools, community centres and job-training programs for the primary targets of the war on weed.
Jones observes that contrary to white liberal laissez-faire up-in-smoke fantasies, the new cannabis act may further target black communities. That’s because it actually increases the number of cannabis-related offences from a handful to 45. Some of these offenses (like selling a joint to a minor) carry massive fines and jail time. “It will still be black people who are arrested unless you end racial profiling.”