Recreational Cannabis Is Almost Legal, So Why Aren’t We Forgiving Convictions?
This is where I usually tell you a story, an anecdote about a person who has gone through a particular experience. It’s a common technique, a way to draw you into a subject’s experience, to bring their story alive. But I have no such anecdote for you today.
I tried. I spent weeks talking to people who’ve been jailed for cannabis-related crimes. I talked to people I know, and the people who know them. I asked those people to ask more people. But no one would speak, not even on the condition of anonymity.
Although they are all free now, each person I spoke to feared being re-stigmatized by telling their cannabis incarceration story, even anonymously.
But with legalization around the corner, we have to ask ourselves: what will happen to those who are or have been incarcerated for cannabis-related crimes, a demographic overwhelmingly comprised of marginalized and racialized individuals?
Annamaria Enenajor, of Ruby Shiller & Enenajor, Barristers, believes those individuals must be granted amnesty. As a criminal defence lawyer, Enenajor advocates for amnesty for non-violent, non-harmful cannabis-related crimes, most recently testifying in Senate in relation to Bill C-45, the Cannabis Act.
“The bill is not in fact a cannabis legalization bill. It actually creates more offenses than it eliminates,” she says. “It is structured in a way that benefits the most privileged in society, specifically excluding individuals with previous cannabis convictions from participating in the new cannabis economy.”
In 2017, Jim Rankin of the Toronto Star used freedom of information requests to access 10 years’ worth of marijuana-related arrest and charge data from the Toronto Police Service. The data showed that the rate of arrest for people of colour was significantly higher than their proportion of Toronto’s population, even though there is little evidence to suggest that people of colour use marijuana more than white people. The reason for this disparity, says Enenajor, is that the police are granted discretion when it comes to cannabis.
“Studies relating to systemic racism, or systemic internalized bias, indicate that where an individual is black or brown and in conflict with the law, they are shown less mercy and less compassion than a person who is white,” she says. So if two individuals have committed the same offence, say cannabis possession, she continues, the white individual will most likely be given a reprimand or warning, while the black individual will most likely be arrested, handcuffed, oftentimes physically assaulted and then taken to a police station.
Furthermore, drug convictions in particular make it extremely difficult for individuals to secure housing, employment, cross the border to the U.S., even secure volunteer work, due to criminal background checks. “An individual charged with manslaughter can cross the border to the U.S.,” says Enenajor, “while an individual with a drug conviction cannot. These convictions further marginalize and limit the options individuals have, and work against the attempt to reintegrate them into society.”
Dr. Akwasi Owusu-Bempah, assistant professor in the department of sociology at the University of Toronto, Mississauga, and fellow at the Broadbent Institute, also argues for pardoning individuals for crimes that are no longer illegal. In an article for the institute’s website, he argues for a three-pronged approach to the coming post-prohibition era. Amnesty is the first prong, he writes, followed by distributing tax revenue to marginalized communities, and allowing those with previous convictions to participate in the burgeoning legal cannabis industry.
As he states in his article, it’s wholly hypocritical to legalize the stuff, then prevent those who were convicted of possession to engage in the industry. These steps, argues Dr. Owusu-Bempah, are a necessary part of cannabis’s legal and social evolution from bad seed to hot commodity. “Laws reflect dominant social norms,” he says. “Law and punishment have always evolved. We used to think that drawing and quartering was an acceptable form of punishment. Now we’re questioning the merits of incarceration and solitary confinement. The law has to evolve.”
Former Toronto police chief Julian Fantino offers a striking example of this evolution. During his tenure with the force he once compared weed to murder, and helped pass a law that put mandatory minimum sentences on the possession of as few as six plants.
More recently, Fantino helped launch Aleafia, a medical marijuana business. In an interview with Carol Off on CBC’s As It Happens, Fantino defended his ideological pivot, stating that he is a more informed, educated citizen today and was doing his duty as an officer of the law during his time with the force. Media requests for Aleafia went unanswered.
Both Enenajor and Dr. Owusu-Bempah condemn Fantino and others who were formerly in positions of power for their about-face. “It’s completely morally bankrupt,” says Enenajor, “and shows an inability to recognize just how harmful his actions were to people.”
Dr. Owusu-Bempah argues that this opportunism simply drives home the need for amnesty. “If we’re not providing amnesty, I don’t think the individuals responsible for the incarceration of literally tens of thousands of Canadians should then be able to turn around and profit off the exact same substance themselves.”
Beyond the obvious hardships – employment, housing, income – criminalization can unleash all sorts of unexpected heartbreak.
“You’d be surprised at the way that individuals internalize their convictions and see themselves as a pariah to society, as the very bottom of society,” says Enenajor. “Cannabis convictions don’t just affect people in these on-the-books ways. The profound lowering of sense of self-worth that comes with a criminal conviction, and the profound sense of injustice, often leads people to despair and to venture further down into criminality and criminal conduct. It really impacts individuals in a psychological way, not just a social and legal way.”
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