For marginalized communities, less than you think
On October 17, 2018, the Trudeau government legalized recreational cannabis. In doing so, it made Canada only the second country in the world, after Uruguay, to have similar legislation. Although many Canadians have hailed this move as progressive, some observers caution that legalizing cannabis will not immediately or completely alleviate the marginalization that racialized communities face with regards to its consumption.
On October 4, the Faculty of Law hosted “Perspectives on the Legalization of Cannabis,” in conjunction with the University of Toronto’s Centre for Criminology and Sociolegal Studies, to inaugurate the third year of its Emerging Issues Workshop Series. Like other installments in that series, the workshop was led by a panel of experts: Stephanie DiGiuseppe, Partner at Ruby Shiller Enenajor DiGiuseppe and Director of Fundraising & Sponsorship at Campaign for Cannabis Amnesty (CCA); Professor Akwasi Owusu-Bempah, Department of Sociology at the University of Toronto (Mississauga) and Director of Research at CCA; and the Faculty of Law’s Professor Kent Roach.
The purpose of the panel was to reflect on the way that cannabis related offences have affected racialized communities, and to unpack the effects that legalization may have. To that end, Professor Owusu-Bempah opened the discussion by tracing the racist history of Canada’s drug enforcement policies. Like in the United States, Canada began to criminalize certain drugs, because of their association with feared minority groups. For example, Emily Murphy, the first female judge in the British Empire, wrote under the pseudonym Janey Canuck that Blacks’ and Asians’ drug use would lead to the downfall of the White race.
“The fact of the matter is that there are also racist policing practices.”
—Professor Owusu-Bempah
The extent to which those laws were enforced in racially biased ways is not entirely clear, because, unlike the U.S., Statistics Canada does not publish data on offences charged by race. Although there is mounting pressure to release that information, the RCMP continues to be the biggest roadblock. What is clear is that, since 1923, when cannabis was criminalized in Canada, it has become what Professor Owusu-Bempah calls a “gateway drug” for racialized individuals into the criminal justice system. Even minor offences lead to criminal records, which have lasting repercussions. They can impede an individual’s ability to access education, to gain employment, to secure housing, and to travel outside the country.
DiGiuseppe argues that two key problems will remain after legalization. First, the relevant legislation will not take away the police’s power to engage in racial profiling. Whereas traditionally, the smell of cannabis may have been used as an excuse to engage with a person of colour, often as a pretext for further investigation, now, police can stop a person on the street to see whether they are smoking illicit cannabis, or in their car, to see if the person has correctly stored the cannabis in their trunk. Professor Owusu-Bempah points to studies from Colorado, and other states that have legalized recreational cannabis, which show that, following legalization, there has been an increase in the number of racialized individuals entering the criminal justice system.
As Professor Owusu-Bempah observed, “The fact of the matter is that there are also racist policing practices… and those aren’t simply going to go away, because one of the tools [simple possession charges] has been eradicated.”
The second problem that DiGiuseppe identifies is that the effect of a criminal record on individuals charged with cannabis-related offences will remain the same, for the foreseeable future, as it was before legalization. Specifically, the stigma of a criminal record will remain, and, more importantly, the road to a record suspension will remain challenging for many marginalized individuals. The Harper government raised the cost of applying for a pardon (and changed the name to a “record suspension”) from $150 to $631 and the effect has been profound. In 2008–2009, before the change, the National Parole Board pardoned about 40,000 individuals. In 2016–2017, that number had dropped to about 8,000.
Professor Roach and the other panelists see people’s desire to punish criminals, rather than to rehabilitate them as one of the fundamental challenges to more substantial, societal change from legalization. In the meantime, racialized individuals will continue to be disproportionately stigmatized.
There are groups working to offset those disproportionate effects. The Campaign for Cannabis Amnesty, represented on the panel by DiGiuseppe and Professor Owusu-Bempah, is currently circulating a petition calling on the federal government to “act now and issue blanket pardons to all individuals for the offence of simple possession of cannabis.” The reason for blanket pardons is in part to remove the financial burden, and in part to help those individuals avoid facing the same biases from the National Parole Board that they may have faced when they were first charged with their offence.
These efforts, and others, are paying off. The Trudeau government recently announced on October 17 that Canadians with marijuana convictions will not have to pay or wait for a pardon.
Here, in Toronto, the police are also undergoing unconscious bias training, through a program called Fair & Impartial Policing. The hope is that it will improve their interactions with marginalized communities. However, the nature, scope and effect of that training remain to determined.
