Canada Made Weed Legal. But For Who?

One year later, cannabis users are still targeted based on race. Community advocates say it's time for reparations

A blurred photo of the blue and red lights that appear on the top of police vehicles.
The Walrus/iStock

Malik Scott was chilling in a parking lot behind some shops before work one day in Parkdale, a west-end Toronto neighbourhood known equally for its art scene and the speed with which it’s gentrifying. He was smoking a cigarette and waiting for some friends when the police arrived. He says an officer insisted he had cannabis on him. Scott, who is Black, says the police targeted him based on race. “They parked right in front of me and boxed me in,” he says, “so I knew it wasn’t going to be pleasant.”

Scott was charged with simple possession. He spent the following months in and out of court, worrying. In the end, he was not sentenced to time in jail. The incident was not the only time he was stopped by police and presumed to be carrying cannabis. Scott says police have similarly searched him four separate times. He has felt targeted. For him, the point isn’t whether he had cannabis with him on or not—the point is that he felt like police stopped him mostly because of his race.

As of October 17, 2018, the simple-possession charges Scott faced ceased to be a criminal matter in Canada. Adults can now possess up to thirty grams of legal, dried cannabis in public (or the equivalent in a nondried form), and it’s also legal to grow up to four plants per household for adult consumption, so long as they are grown from licensed seeds and seedlings. In some parts of the country, such as BC, Ontario, and certain municipalities in Alberta and Quebec, you can smoke pot on the sidewalk. There is no federal limit on how much cannabis a person can keep at home (though provinces can regulate this, and BC and Quebec do).

At the same time, more aspects of cannabis use are now explicitly criminalized than before, and being stopped and searched by police remains far from rare for Black and Indigenous people in Canada. Both groups have been disproportionately targeted under the country’s drug laws and are more likely to be charged with cannabis-related offences. In recognition of that (and also of the country’s new cannabis laws), the federal government wants to forgive people for past convictions of cannabis possession by pardoning them or suspending their records. Bill C-93, which came into effect in August, waives the $631 processing fee and the up-to-ten-year waiting period to obtain a pardon for simple cannabis possession. People can apply for these pardons directly, through the Parole Board of Canada, and many likely will: the government estimates that at least 250,000 Canadians have charges like these on their records.

The aim of a pardon, the public-safety department says, is to remove some of the obstacles for those who have been convicted of simple possession, a crime that no longer exists. But pardons won’t be granted automatically. First, one must complete a six-step process of gathering documents from various levels and departments of government, work that can be prohibitive for those who are ill or low income, who live far away from city centres, or who have limited internet access.

The reality is that, for many people with prior cannabis charges, pardons won’t help. Only simple-cannabis-possession convictions are going to be eligible for the government’s proposed expedited pardoning process, not other crimes. What’s more, pardons are granted only after a person has completed their sentence, only if they have no other convictions beyond simple possession of cannabis, and only if they do not incur a new conviction prior to the pardon being ordered. And anti-racism advocates say that, as long as police continue to target people of colour going about their daily lives, nothing will really change for these communities: the disproportionate charging of Black and Indigenous people for drug-related and other crimes will continue largely because these groups will continue to be disproportionately surveilled, stopped, questioned, and searched.

Pardons also don’t entirely clear a person’s record—they just move it to another file. In certain circumstances, a record remains accessible even after a pardon has been granted. What’s more, though cannabis growth, possession, and consumption are all now legal, there is also a long list of new laws in place restricting the drug’s use, and until racialized policing is addressed, many Black people worry they’ll continue to be targeted.

Advocates for racial justice say amends are due for the past. They say the government needs to consider making reparations. They want to see steps taken to repair some of the harm done to families that were broken up and to community members who spent time behind bars. More specifically, advocates want to see the government prioritize expungements, not pardons. Expungements fully erase a person’s record. They’re granted only when the government admits that it was wrong to criminalize a behaviour in the first place and that there has been profound historic injustice as a result of this criminalization—such was the case when the government passed legislation to expunge criminal records for gay sex in June 2018.

Activists and academics say expungement is a fairer, more respectful response to the problem of legalization and petty criminal records, potentially leaving the person in a freer position to access housing, jobs, and other crucial elements of life. At the very least, they won’t have to fear their record coming back to haunt their lives. What’s being called for, really, is a true reckoning: one that takes into account the possibility and need for reparations—and one that arguably fosters an honest, productive discussion on how to apologize for and begin to heal past wrongs.

So far, though, that’s not a conversation the government is willing to have.

With legality comes legitimacy, at least to a certain degree, and in that sense, cannabis got a makeover almost overnight. Firstly, many people switched to calling it cannabis, leaving “marijuana” for those who didn’t yet realize the term’s racist origins. The plant’s packaging got a physical makeover too. Gone are the days of the furtively obtained plastic sandwich baggie containing a few stray nugs of dry mystery weed. The shame around cannabis use is fading with the end of prohibition, and users are coming out of the closet, becoming more comfortable admitting their use. Cannabis shopping is much more deliberate. There’s even a robust interest developing around terpenes, the parts of the plant responsible for its different scents and effects.

While government-obtained cannabis is legislated to come in the plainest packaging possible, many illegal dispensaries, which were arguably behind much of the final push for legalization, are still operating, at least where police appear to be lenient. There, the appeal of cannabis is apparent. It comes packaged in sleek amber tubes and squat little glass jars, emblazoned with carefully chosen fonts. As the stigma slowly breaks down, older middle-class folks are flocking to the country’s government-run shops and sites, clamouring for the pain-relieving effects of CBD, or perhaps seeking something more THC-heavy in an attempt to relive the charm of their youth. Cannabis-subscription boxes are cropping up, as is what some call the “pinking” of the industry: marketing strategies designed around cute, stylish products aimed to suit women’s supposed needs.

The fact that pot is no longer considered a street-drug, though, does nothing to address racialized policing. What happened to Scott is not a new story. Statistics, not to mention lived experience, show that Black people are more likely to be charged and imprisoned, in part due to a racialized and deliberate tracking by police. People of colour have been unfairly penalized under Canada’s drug laws since those laws were created, and today, in many cities, Black people are more likely than white people to be charged with cannabis offences.

Akwasi Owusu-Bempah is a professor of sociology at the University of Toronto whose work focuses on race and justice. He worries that the country’s drug laws will continue to negatively affect Black and Indigenous people. “There are more laws around the cannabis plant now than there were before, and there are still plenty of opportunities for people to be criminalized,” he says. Some of what’s illegal now includes driving while high, trafficking to minors, and possessing more than thirty grams of cannabis in public. Those activities weren’t legal before, but they weren’t specified as illegal acts with clear sentences attached, either. Now, a person can go to jail for a maximum of fourteen years for selling to a minor. They could also go to jail for selling product not declared fit for sale by the government. “Given that we know policing is highly racialized,” Owusu-Bempah says, “racialized people run a high risk of being criminalized for activities around cannabis that are still illegal.”

The risk Owusu-Bempah refers to is well documented. Black and Indigenous people are overcriminalized and hypersurveilled in Canada. Black folks make up 2.9 percent of Canada’s population but 9.3 percent of those living behind federal bars, according to a report published in 2013. A report from the same year found that, when in prison, Black people are more likely than any other inmates to end up in maximum-security cages. Furthermore, an annual report from the Office of the Correctional Investigator stated that, from 2005 to 2015, the Black federal inmate population grew by 69 percent. Indigenous people, too, are overrepresented in prison. At less than 5 percent of the Canadian population, Indigenous people represent 26.4 percent of those locked in federal prisons.

Even in Toronto, one of the most diverse cities in the world, many Black men have been mistreated by police. The Greater Toronto Area’s Black Experience Project was launched, in 2010, to look at the lived experiences of Black and African people in the region, with the end goal of better identifying the needs of the Black community and influencing the creation of policy to serve those needs. It confirmed what Black Torontonians had long known: a study of 1,504 interviews with people who identified as Black or African found that 60 percent of Black men aged twenty-five to forty-four had been harassed or treated rudely by police and 79 percent had been stopped in public by police.

The Toronto Star’s oft-cited carding investigation found that the overcharging and overincarceration of Black men is in part due to the fact that police tend to disproportionately stop and question Black and brown people. According to the Star, more young Black men aged fifteen to twenty-four are stopped and carded in some Toronto neighbourhoods than the number of Black men aged fifteen to twenty-four who actually live in those neighbourhoods. Black people are also far more likely to be pulled over and questioned when they are behind the wheel than other people. And the racialized experience of policing is similar across the country: a 2016 report stated that, in Ottawa, Black men are 2.3 times more likely to be pulled over while driving; in Montreal, young people of colour report being beaten by police even when cooperating; and in Halifax, Black people are six times as likely to be street-checked than white people are.

Canada’s justice system has long pinned responsibility for the country’s drug use (or perceived drug use) on people of colour. University of Guelph history professor Catherine Carstairs writes, in Jailed for Possession, about how Canada’s early drug laws were spurred in part by fear of racialized people. Canada’s opium law, she writes, “was part of [a wider] reaction against alcohol and other drugs, but it had its immediate origin in an anti-Asian riot on the West Coast.” In 1907, after a summer of racist anti-Asian acts, several thousand white men “assembled for an anti-Asian parade” in Vancouver. They attacked Asian businesses and communities, smashing windows with bricks.

Then deputy minister of labour Mackenzie King (the same King who would later be prime minister for twenty-two years) arrived to assess the scene and, when he returned to Ottawa, wrote a report detailing the dangers of opium, highlighting the fact that the drug was beginning to appeal to white women and girls. Later on, the minister of labour introduced legislation that would ban opium’s manufacture, sale, and importation. The Opium Act was passed without debate. “The fact that opium was perceived to be used by working-class Chinese, and cocaine by disreputable Montrealers,” Carstairs writes, “contributed to the notion that these drugs, like the people who used them, needed to be controlled and regulated.”

In the early 1920s, these laws were strengthened, with minimum sentencing instituted, maximum penalties increased, and the ability to deport anyone without citizenship found to be trafficking drugs added. Many decades (and much trumpeting about diversity) later, Canada’s current drug laws function in much the same way. According to stats Vice News obtained in a freedom-of-information request, from 2015 to the first half of 2017, Black people in Halifax were five times more likely to be arrested for possession than white people were. Indigenous people in Regina were nine times more likely than white people to be arrested for cannabis possession during the same time period. From 2003 to 2013, a third of all cannabis-related charges in Toronto were against Black people, even though studies have shown that Black people and white people consume weed with about the same frequency.

One Toronto Star investigation found that, in Toronto, Black people with no prior convictions were three times more likely than white people with similar backgrounds to be charged with possession, and similar patterns play out across the country. The targeting is so ubiquitous that many Black people leave their homes in the morning expecting an encounter with police. Zeroing in on people in this aggressive, racialized way has serious effects on targeted individuals and their ability to move safely and comfortably in the world.

Under the new laws, none of that appears to be changing.

Policing Black Lives author Robyn Maynard says that, without a concerted look at the ways in which racialized injustice is melded into the concept of policing, legalization of pot on its own is no major social-justice win. In her book, Maynard characterizes this tracking and criminalizing of Black folks as something that’s rooted not in fear of crime but in fear of Blackness itself. In an interview, she says that, without any intent to deal with racially disproportionate harms, the outcome of these changes is unlikely to benefit communities marginalized under the old laws. “What is being extended with the new, partial legalization of cannabis is precisely not taking into account that which is most necessary,” Maynard says, “which is actually addressing structural racism, racism in policing, and racism in the criminal-justice system more broadly.”

Phillip Morgan, a Toronto poet and freelance writer focused on race and social justice, lives through these issues every day. Morgan has never smoked cannabis in his life: he’s a law-abiding person, and he’s also asthmatic. But police don’t see these parts of him. They see him as a criminal instead. “As a Black man in his mid-twenties with dreadlocks, I was hypercriminalized in regards to something I have no relation to,” says Morgan, who is now in his thirties. For his part, Malik Scott dreams of a future Canada where expungement is the norm. “For me, it’s about letting people out,” he says. “Just let them out.”

Instead, the government chose the relatively easier path of streamlining the process to obtain a pardon for simple-cannabis-possession charges. While the public-safety department promises this will make things easier for those who were criminalized under the old laws, the move does little to help people. A pardon leaves a criminal record intact but keeps it separate from the Canadian Police Information Centre, the country’s central police database. This means that, theoretically, those who have been pardoned will no longer be discriminated against on the basis of their record when it comes to the pursuit of housing, jobs, access to their children, or other areas where a record can be used against a person. In practice, however, provincial and municipal justice agencies can still access the record. (When a pardon is granted at the federal level, the government sends notice to these other justice agencies. While they usually comply with the spirit of the pardon, there is no mandate for them to do so.)

Even after a pardon has been granted, the RCMP may still release the details of record suspensions (i.e., pardons) if required, including in cases involving the identification of crime-scene fingerprints, amnesiacs, and people who have died, as well as “when authorised by the Minister of Public Safety and Emergency Preparedness, for court, law enforcement and public safety purposes.” Though such an action would likely be found unconstitutional by the courts, pardons can also be reversed under future governments—if the record holder commits another crime, for example, or is deemed by the parole board to no longer be in good conduct. That means any pardons granted for former cannabis crimes may not be permanent.

Up until this point, Public Safety Canada has shown no interest in expunging records for those convicted of simple possession. The department says reparations are not going to be debated at the federal level either. “Indeed, almost every law is bound to impact certain groups of people in disproportionate ways,” said a spokesperson over email, “so you have to look at the nature of the offence.” Ralph Goodale, public-safety minister at the time of writing, declined an interview request from The Walrus for this story. His office did, however, send a statement upholding the ministry’s decision to respond to the issue with pardons, extolling them as a faster process. “While we have now transitioned to a better policy, the prohibition on cannabis was permissible under the Charter,” spokesperson Scott Bardsley said in an email. “There is no question that certain communities have been disproportionately affected by the way cannabis laws have been applied, and we are addressing that by providing free, immediate access to pardons.”

(It’s not as though everyone in government has been rejecting the idea of expungement for these crimes. In October 2018, the NDP proposed private member’s bill C-415, the aim of which was to establish a procedure for how the government could offer expungements for cannabis possession. That bill was defeated in May on second reading, and the Liberal government decided to go ahead with pardons instead.)

For advocates like Owusu-Bempah, pardons don’t go far enough. Not only do communities need expungement to move forward, he argues, government unwillingness to consider expungement is also a clear refusal to look at the racist history of Canada’s drug laws. Cannabis lawyers, too, say the idea of a pardon doesn’t go far enough. “All the pardon does is make an onerous and complex procedure slightly less onerous and slightly less complex,” says Toronto-based lawyer Jack Lloyd. “It is literally the smallest possible step that the federal Liberals could take in order to get a PR win, but it doesn’t functionally help people.”

He says expungement, on the other hand, would “immediately cure” people of criminal-record issues, meaning they’d be eligible for work in a host of industries, be able to travel unfettered to the US, and be eligible for housing and custody of their children. And, as lawyers Benjamin Kates and Pam Hrick wrote in an October 2018 CBC News op-ed: “Instead of trying to figure out whether an injustice was unjust enough to warrant expungement, the government should focus on how best to right a historical wrong.”

Their concerns are well founded: the evidence already suggests that, without efforts to specifically address racial disparities in policing, this targeting will continue. In Colorado, where recreational cannabis has been legal since 2012, Black people were more than twice as likely as white people to be charged with public use of cannabis even after legalization. They were also more likely to be charged with cannabis-related crimes like illegal cultivation or possession greater than the legal limit, according to a 2015 report.

Maynard worries that, without a commitment to change policing, Black people will continue to disproportionally experience cannabis-related charges in Canada. “I think that, if we’re not actually going to talk about the very real harms of carding, of Black people’s inability to access public space, we’re never going to get to the root of many of the inequalities in this space,” she says, speaking to Canada’s drug laws. Maynard also says that, if we only talk about repairing harms in the cannabis space specifically, it won’t be enough, and we’ll be missing the point. “It’s fundamentally hypocritical and contradictory to actively pursue the war on drugs minus this one section of drug legislation,” she says. “We need to see a commitment to minimizing the racialized harms of the war on drugs more broadly.”

In a 2014 article for The Atlantic called “The Case for Reparations,” Ta-Nehisi Coates explored the idea of reparations in the US. It’s not a new idea, he points out—one of the most cited examples of an early case of reparations happened in 1783, when Belinda Royall, a Black woman who had been enslaved for fifty years, was granted a pension of fifteen pounds and twelve shillings after petitioning the commonwealth of Massachusetts. “At the time,” Coates writes, “black people in America had endured more than 150 years of enslavement, and the idea that they might be owed something in return was, if not the national consensus, at least not outrageous. . . . What I’m talking about is more than recompense for past injustices—more than a handout, a payoff, hush money, or a reluctant bribe.”

Maynard says that wider reparations to Black and Indigenous communities in Canada are needed too, and that anything outlined in cannabis-related drug legislation would only play a tiny part of what that needs to look like. Safety for Black folks, she says, will be found in imagining a whole new system. She says that, ideally, we would reconsider the role of punishment in society and the need for policing in its current form. The first thing she thinks of when she considers reparations is prison abolition, a move for which Black activists and prisoners have been advocating for generations. “The role of policing has always been related to racial control, to social control, to economic control, in a way that means those forms of harm are built into the institution,” she says. “To me, it’s always seemed more fruitful, more generative, to imagine community safety differently.”

Part of that, she suggests, could involve using some of Toronto’s $1 billion per year police budget to nurture communities. “You know, instead of having armed men patrolling poor Black and racialized neighbourhoods, what would it mean for those neighbourhoods to actually be safe? To have livable and decent housing? To have transport that would make it so people were not so marginalized in the first place?”

Maynard says wider reparations discussions need to take a holistic, community-minded approach. They’ll need to centre the ways in which drug criminalization has harmed Black families, specifically Black women who have lost their children to jail or drug use. Another obvious move, she says, is to use some of the public funds generated by legalization to invest in housing and in closing other gaps that have disenfranchised Black communities, instead of increasing police presence on the streets.

Increasing transparency is another good way to start repairing harm, adds Owusu-Bempah. Police departments collect statistics on charges and arrests broken down by race, but they do not make those numbers public. If they made all this information available to the public, it would create more accountability. An honest public conversation about racialized policing, Owusu-Bempah says, could help police understand what’s going on, show them how they can improve, and heal some of the harm that’s been done to communities. “Not only would it help police themselves to understand how they’re enforcing the laws,” he says, “it would help academics and policy makers develop policy around drug enforcement.”

So far, precedent-setting moves like this are being neatly sidestepped. While Canada looked to the US to examine policies in states that have already legalized cannabis as it developed its own policies, it seems to have missed steps toward social repair, such as Oakland’s prioritization plan for those who were targeted under the old laws, or Massachusetts’s business-development opportunities and skills training.

Malik Scott, the man who was charged with possession after being singled out for a search, still worries about the impact of his charges. He often worries about his future. There’s nothing to stop another incident of racialized policing from happening—to himself or to his friends. He’s worried about travelling, and his faith in the idea of true amnesty coming to fruition is dwindling. While Scott acknowledges that it would be a long, nuanced conversation, he sees no reason why the country can’t start to have a serious discussion about repairing harms against marginalized communities under expired drug laws.

It’s clear to Scott that he was profiled by police, but he says he hates to even have to say out loud that he experienced racialized policing. He lets out a long sigh when I ask him why. It’s the unmistakable sigh of someone who’s sick of repeating themselves. “In this day and age, that has no place in this society.”

Sarah Ratchford
Sarah Ratchford is a New Brunswick-based writer with a focus on social justice.