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Cannabis prohibition has been especially harmful to black and Indigenous people in Canada, but legalization offers a chance for the government to repair some of those harms, says a researcher who hopes the federal government will consider racial justice as it enacts its proposed law.
Federal legalization of marijuana "is definitely a positive step, and one that should have happened about 100 years ago," says Akwasi Owusu-Bempah, who studies race and policing as an assistant professor of sociology at the University of Toronto.
But Owusu-Bempah believes the Canadian government can and should do more beyond legalization, and ought to look to U.S. jurisdictions such as California for examples of how policies can be designed to help the people who were hurt most by prohibition.
California, which legalized recreational cannabis use on Jan. 1, is allowing people with certain marijuana possession convictions to petition to have their criminal records expunged or the charges reduced.
Some Golden State municipalities are going even further. The city of Oakland has made headlines for launching a special cannabis business permit program that prioritizes people with previous marijuana convictions who meet certain conditions, and Los Angeles is undertaking a similar "social equity" program to make the economic opportunities of legalization available to those who suffered most under prohibition.
Although some cities in California are famous for progressive policy initiatives, Owusu-Bempah points out the state has also been home to some of the most punitive criminal-justice laws in the United States.
"If they can go from punitive to this kind of proactive, rehabilitative-type model, I think that we can too," he says.
That kind of social justice approach could help address historical inequity against non-white people in Canada, he says.
Modern Canadian drug prohibition has its roots in anti-opium laws designed to target Chinese people who came to Canada's west coast in the late 1800s, says Susan Boyd, a criminologist at the University of Victoria who served on the federal government's cannabis legalization task force and authored the recently published book Busted: An Illustrated History of Drug Prohibition in Canada.
"We associated specific drugs that we were criminalizing with racialized groups such as Chinese-Canadian men and black Canadians, and that had a lot to do with racial tropes about those groups of people, and that continues today."
Canada no longer collects racial or ethnic data on arrest rates, making it hard to track the exact relationship between race and enforcement of drug laws on a national level, Boyd says.
But statistics on the racial composition of Canadian prison populations, as well as other studies, show "that black and Indigenous people bear the brunt of those policies, and poor people as well," she says.
Drug prohibition in Canada has always been "inherently racialized," says Robyn Maynard, author of Policing Black Lives: State Violence in Canada From Slavery to the Present. Maynard points to the influential 1922 book The Black Candle, a racist, anti-drug tome by famed moral reformer Emily Murphy, as evidence of how early drug prohibition in Canada was "really about justifying different kinds of racial control."
"This text is actually filled with descriptions of black men as really being the bringers of drugs into white Canadian society, as a threat to white women, as a sexual danger," Maynard says.
Those attitudes, Maynard argues, have remained throughout the more recent war on drugs, stoked by politicians, police and uncritical mass media coverage of race and crime. Black women have been particularly impacted, she says.
"Cannabis, people say it's a gateway drug. They're usually referring to a gateway to harder drugs. I argue that cannabis can be a gateway into the criminal justice system" — Akwasi Owusu-Bempah, assistant professor of sociology at the University of Toronto who studies race and policing.
"Not only are they proportionately more over-represented for drug crimes in federal prison, but actually black women disproportionately have their children taken away, or face heightened monitoring by child welfare services and social workers more broadly."
Simply changing the laws surrounding cannabis won't automatically bring justice to marginalized people in Canada, Maynard warns.
"I think if we don't really see a commitment to actually challenging racially disproportionate policing and racist policing practices, we're not going to see an end to (the racially) disproportionate harms of drug laws that still exist."
Cannabis prohibition "has been a significant contributor to the problem of Aboriginal over-incarceration," says David Milward, an associate professor with the University of Manitoba's faculty of law and a member of the Beardy's & Okemasis Cree Nation in Saskatchewan.
"When Aboriginal guys or girls get busted for marijuana use, they get caught up in the justice system and they're going to wind up in a penitentiary system that doesn't address their needs, certainly not their substance-abuse issues, and exposes them to things like gang-recruitment cultures inside prison," says Milward.
One way the federal government could address that harm is to make it easier for those with cannabis offences to get criminal record suspensions (commonly called pardons), he suggests.
"The process itself is onerous. It's not hard to imagine that Aboriginal persons who have had brushes with the law and have other crap going on in their lives, they're not going to want to take on that pretty onerous process of applying for a record suspension."
Owusu-Bempah believes the Canadian government should automatically pardon anyone who has a criminal record for the possession of cannabis, as well as pardoning "any subsequent failure to comply charges that stem from an initial cannabis offence."
"Cannabis, people say it's a gateway drug. They're usually referring to a gateway to harder drugs. I argue that cannabis can be a gateway into the criminal justice system," he says.
"Cannabis use is fairly widespread amongst young people, across racial groups," Owusu-Bempah explains. "Certain groups are targeted."
Even if they get probation, those young people of colour are more likely to face failure to comply charges, "which then leads to further criminalization, and a spiralling into the justice system," he says.
The federal government's Cannabis Act is "pretty void of any kind of real social justice language," notes Jenna Valleriani, who serves as a strategic advisor to Canadian Students for Sensible Drug Policy and recently completed a PhD studying legal and illegal markets for cannabis.
Valleriani says the federal government definitely knows how cannabis prohibition has disproportionately impacted marginalized people, citing an April 2017 town hall on cannabis legalization with Prime Minister Justin Trudeau hosted by Vice News. At that event, a young black man told the prime minister that he had recently been charged with marijuana possession and was worried about his future.
"Given that all this is going to be legalized in about a year, what would you say to someone in my position?" he asked.
In response, Trudeau told a story about how his late brother Michel Trudeau got his own cannabis possession charges dropped after intervention from their father. ("My dad had a couple connections," he quipped.)
"However, people from minority communities, marginalized communities without economic resources, are not going to have that kind of option to go through and clear their name in the justice system, and that's one of the fundamental unfairnesses of this system, is that it affects different people differently," said the prime minister.
Trudeau then made comments that may have hinted at future pardons to come: "Until we actually change the law, we can't take steps towards moving retroactively."
After the law is changed, Trudeau added, "we will start a process where we try and look at how we're going to make things fairer for those folks."
That vague pledge aside, Valleriani says the federal government has given no public signs that it plans on reparations of any kind related to cannabis legalization.
"I think that's really far off their radar, I think that right now they're just trying to get over the hurdle of regulation."
If the federal government does issue post-legalization pardons to Canadians with criminal convictions for cannabis, they might reap the political benefits. In a July 2017 telephone survey of 5,000 Canadians conducted by Oraclepoll Research, 72 per cent of respondents agreed that the federal government should pardon and eliminate criminal records for all previous and current simple cannabis possessions.
For Owusu-Bempah, pardoning those convicted of cannabis-related crimes would be the most straightforward way for the government to start making amends. The Liberal government, he notes, is currently moving forward with a bill that would expunge the criminal records of Canadians with convictions for same-sex sexual activity.
"Trudeau seems to be all about apologies," he says. "This is another action that would signal an apology for some historical harms."
Updated on Saturday, January 13, 2018 at 10:24 AM CST: Clarifies quote.
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