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Canada's cannabis legalization had a chance to expunge records rooted in racism. A few 'pot pardons' don't cut it Akwasi Owusu-Bempah from Tahira Rehmatullah Toronto Star Saturday 29 Apr 2023 It was 2015 and Justin Trudeau had just been elected. Canada’s new prime minister was pledging to make good on a 2014 promise that came out of the blue and stunned his principal secretary, who was at the other end of the country at a Nova Scotia dinner while Trudeau was in British Columbia beginning the quest to legalize adult-use cannabis in Canada. This was a time for a self-described progressive government to break new ground in social justice and use legalization to begin to correct past wrongs. It began that way, or rather, couched in those terms. It ended much differently. Canada’s cannabis legalization has been a success on many levels. A Deloitte study estimated the legal industry had generated $11 billion (Canadian) in its first three years, added $43.5 billion to Canada’s gross domestic product, and created 98,000 jobs. It also said the industry needed greater diversity. At its heart, we believe that Canadian legalization was a squandered opportunity. A potential arc toward social justice became instead a functional, anodyne piece of legislation that missed a chance to expunge records rooted in past racism, provide a new social equity framework, and give back to communities that had been disproportionately harmed by a War on Drugs in which Canada had been an enthusiastic participant. It meant that the moment when adult-use cannabis was legalized in Canada and a year later, when a companion bill offering an inadequate pardon process became law, Canada had fallen behind U.S. states that had tied legalization to efforts to make good on promises to reverse racial injustice during the War on Drugs. The original Trudeau cannabis promise may have caught many off guard and was initially dismissed by many as the musings of a rookie, third-party leader with little prospect of immediate electoral success. But it should not have been seen as something so stunning. It was also not particularly brave. Like the U.S., public support for legalized cannabis had been on an upward trajectory in Canada for years. The only votes Trudeau was likely to lose with this initiative were those never headed his way anyway. Trudeau’s move was merely the next logical step after many tentative decriminalization or legalization moves in Canada. The years of Prohibition were rooted in racism — predominantly anti-Asian racism — but an early progressive commission report led by Justice Gerald Le Dain did not study potential cannabis legalization through any racism prism. The commission was established by Prime Minister Pierre Trudeau largely because of an explosion of cannabis use and drug experimentation among Canada’s youth in 1969. In its 1972 final report, the Le Dain Commission recommended the legalization of simple cannabis possession and cultivation for personal use. It recommended that people addicted to drugs be afforded greater opportunities for treatment rather than be dealt with by the heavy hand of the justice system. Le Dain had two allies to create the majority opinion of the five-member commission, but one of the remaining two felt it did not go far enough. Marie-Andreé Bertrand, a Quebec feminist (and perhaps not coincidentally, a Berkeley grad), recommended the government take over distribution as it had for alcohol, a view that was, in some provinces, 46 years ahead of its time. But the country was not ready for Le Dain. His report came under heavy criticism in media of all partisan stripes and from the health authorities of the day, including the Canadian Medical Association. Given the danger that the report would be too hot for his government to handle, Pierre Trudeau ignored it and quietly kicked it to the curb. In a determination that would become a recurring trend, it was decided that there were no votes in moving forward with any of Le Dain’s recommendations. Over the ensuing years, tepid moves to decriminalize died with government mandates, then came to a crashing halt during the years of Stephen Harper’s Conservative government. But by 2012, with the federal Liberals still stumbling in the opposition wilderness, the party voted by an overwhelming 77 per cent to call on future Liberal governments to legalize, regulate and tax cannabis production, distribution and use. It also called for amnesty for Canadians with past possession convictions. Justin Trudeau was listening. A year later, he was chosen party leader in a landslide, and a few months later, he and his wife, Sophie Grégoire, embarked on a trip through Western Canada. At a town hall-style picnic in Kelowna, B.C., Trudeau, then the third-party leader, announced he was going to legalize cannabis when elected — never mind that he wasn’t seen, at least in the eyes of the country’s punditocracy, as a likely prime minister in the short term. “He did it completely on his own,” his former principal secretary Gerald Butts recalled. “There was no grand political strategy to it. That was him making up his mind.” Trudeau had told Butts about his late brother Michel being busted for cannabis possession after smashing up his car on a trip home to Ontario from the West Coast. Police had found a couple of joints in the wreckage. The family used its name, and the connections only a former prime minister could boast, to make Michel’s problems disappear. It was a story Trudeau would repeat publicly. Trudeau said that had his brother been an Indigenous kid, he would have been in jail, and he was right. It sounded like he was building the foundation for a legalized cannabis regime rooted in social justice, and a progressive Canadian government under Trudeau would undo much of the damage to Black and Indigenous Canadians from the War on Drugs. But as legalized cannabis loomed, a cabinet trio of Public Safety Minister Ralph Goodale, Health Minister Jane Philpott and Justice Minister Jody Wilson-Raybould proved an impenetrable threesome when it came to using cannabis legalization as a springboard to greater social and cultural reforms. Bill Blair, the former Toronto police chief, was thrown into the mix as the law-and-order guy selling the legislation to the provinces and Canadians at large. Why would the government gradually go from social justice rhetoric to its mantra of protecting children and busting the illegal market? Why would it not go further? Surely the nation’s first Indigenous justice minister would be aware of the injustice done to Indigenous youth for years during this War on Drugs. Wouldn’t she be advocating for putting cannabis revenues toward improving the life of Indigenous kids in urban settings or pushing for guaranteed access to positions of power in the legal market for Indigenous entrepreneurs? Philpott worked assiduously to provide clean drinking water to Indigenous communities, but she did not push to right the criminal injustice perpetrated on Indigenous people convicted of cannabis possession. Blair knew the damage done to Black people in Toronto by cannabis busts better than anyone. Those of us advocating for expungement did get quick pushback, but part of that was simply that records were not as accessible as fully digitized U.S. jurisdictions where you could let an algorithm loose on them. In Canada, convictions under the Controlled Drugs and Substances Act do not specify cannabis, and there are no codes specifically for cannabis, so records would have to be accessed one by one. It was going to be very intensive work to go through all these records and identify the cannabis convictions and downgrade or clear them, but it was very labour-intensive to create these records in the first place. People had to be arrested, they had to be charged, and they had to be convicted. We poured massive resources into the criminalization that harms these people and harms our society, and think it is reasonable that we pour resources into clearing those records for them. In June 2019, the government passed legislation expediting record suspensions for Canadians with cannabis possession convictions. The onus was on the person seeking the suspension; it was an exercise in bureaucratic frustration and applied only to those with a possession conviction and no other offence. Some estimates suggest there are up to 500,000 Canadians with cannabis possession convictions, but as of October 2021, two years after the program was introduced, only 484 “pot pardons” had been granted. It took three more years for the government, responding to NDP pressure, to introduce and pass legislation that aims to “sequester” cannabis (and other drug possession) convictions by 2024, meaning they will not appear on criminal record checks. It still falls short of expungement. Canada’s Cannabis Act is now under mandated review. There may be government willingness to move on our three goals of cannabis justice: inclusion of those hurt by the War on Drugs, particularly underrepresented racial groups, in the employment and economic opportunities in the legal industry; full amnesty for those with cannabis convictions; and reinvestment of cannabis taxes into equity programs. Adapted from “Waiting to Inhale: Cannabis Legalization and the Fight for Racial Justice” (MIT Press, April 2023). https://www.thestar.com/news/canada/2023/04/29/canadas-cannabis-legalization-had-a-chance-to-expunge-records-rooted-in-racism-a-few-pot-pardons-dont-cut-it.html
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