Where is amnesty in the federal government's plan to legalize cannabis?

Published on Straight.com on May 17, 2018

Toronto lawyer Annamaria Enenajor has launched a campaign urging the government to "right history's wrongs" by expunging personal possession charges

Last week, two international media outlets published articles about the notable absence of amnesty in the Canadian government's plan to legalize cannabis.

“Canada plans to legalize weed – but will those convicted of crimes get amnesty?” asked The Guardian. Al Jazeera posed a similar question in its headline: “Can Canada undo ‘injustice’ of cannabis possession convictions?”

While it’s a topic that the Liberal government has carefully tiptoed around since Justin Trudeau first made the promise of legal cannabis in 2015, it’s one Toronto lawyer Annamaria Enenajor is determined to bring to the forefront of the nation’s discourse on legalization.

The criminal and regulatory lawyer and member of the legislative committee of the Criminal Lawyers Association of Ontario said after taking a “deep dive” into Bill C-45, she was taken aback by its lack of forethought in one area in particular.

“One thing that stood out to me about this legislation is that there is a complete absence of any mention of the horrific and disproportionate impact that the criminalization of cannabis has had on Canadians in marginalized communities, particularly African Canadians, low-income individuals, and young people,” Enenajor told the Straight by phone.

Since The Cannabis Act was tabled, Enenajor has been speaking about amnesty at conferences and events, and was approached in the fall of 2017 by a group of individuals who were interested in rallying behind her message. It was then that she decided to create a campaign to make amnesty “a central issue” to legalization.

“I was disappointed that the Liberal government seemed to be dragging their heels on the question of pardons and were very non-committal about this,” she said. “Rectifying the harms that have been done by the criminalization of cannabis is central to this legislation, and yet it’s nowhere to be found.”

In creating the campaign Cannabis Amnesty, Enenajor has endeavoured to communicate to Canadians that the forthcoming legislation will leave behind thousands if not tens of thousands of individuals who have trouble obtaining jobs, crossing the border, and maintaining a decent quality of life because of a simple pot possession charge. (The campaign seeks amnesty for those convicted of personal possession.)

“The impetus for the legalization of cannabis, the reason that we’re here and that we’re having this discussion, is because we all realize that criminalization is doing more harm than good,” she said.

“It doesn’t make sense to continue the same strategy that we’ve been using, that we’ve recognized has failed—it doesn’t make sense to plow forward into the future without trying to fix our failure, and overcriminalization is our failure.”

Akwasi Owusu-Bempah is a criminologist, assistant professor at the University of Toronto, and a Broadbent Institute fellow studying the intersections of race, justice, policing, and drug policy. He supports Enenajor’s campaign for amnesty and told the Straight that legalization without amnesty would be unjust—but not a surprise given Bill Blair’s haste to say pardons were “off the table” when he was first asked about amnesty back in 2016.

Referencing a VICE News investigation published in April, Owusu-Bempah said there is now substantial data that shows that black and Indigenous populations have been disproportionately arrested for cannabis offences, “literally from coast to coast.”

“Previously we had anecdotal data, or we had findings from the Toronto Star that said black people were more likely to be charged,” he said. “Now we can see that from Vancouver to Halifax, it has been black and Indigenous people that have been disproportionately harmed.”

And those harms are not to be taken lightly: Simple possession charges can create barriers that limit a person’s access to everything from employment to travel and in some jurisdictions, even social housing.

Enenajor said it’s not unthinkable that people who have a simple possession charge on their record often get sucked into the system, and end up engaging in more criminal activity.

“The reason for that is because what a criminal record does is it closes opportunities for legitimate gainful employment,” she said. “This is a huge barrier because we know that people in marginalized communities have fewer opportunities for meaningful employment to begin with.”

She added that with the stigma around cannabis so high in the United States, a possession charge makes it impossible to cross the border. Illustrating this point, she recalled the testimony of a cross-border lawyer at a Senate panel last month, who told senators he had clients with possession charges turned away at the border consistently, but others convicted of manslaughter who were allowed entry.

When asked what sort of approach the federal government could take to rectify the issue of historical overcriminalization in Canada, both Enenajor and Owusu-Bempah pointed to cities like San Francisco, Oakland, and Seattle, where individuals who have been most harmed by prohibition are actually able to reap the benefits of participating in the industry.

“To remove the stigma attached to cannabis and through the process of legalization, these cities have actually created a space to use that legislation for a purpose of redressing these historical wrongs that were inflicted on vulnerable communities,” Enenajor said.

“[In Oakland,] they did so by making sure half of the licences for the production of legal cannabis were allotted to what they would call ‘equity applicants’, people that have cannabis convictions or come from neighbourhoods that have been overpoliced for cannabis.”

What Bill C-45 does instead, she said, is amplify the exclusion of those with criminal records by prohibiting them from participating in the legal economy.

“What you’ve got is an activity that a very large amount of the Canadian population has admitted to doing, including the person who holds the highest office in the country—Trudeau,” said Owusu-Bempah. “But if you’ve done certain other things with the plant, you won’t be able to work for a company in the legal industry. That’s really hypocritical, and it adds insult to injury in many ways, especially given the high number of former law enforcement involved in the industry.”

If there’s one Canadian cannabis activist who has been vocal about the issue of amnesty and the hypocrisy of former law enforcement profiting from a substance they once villainized, it’s Jodie Emery. Emery is also lending her support to Enenajor’s campaign, and predicts a groundswell of support from Canadians, “because everyone knows someone who smokes pot or possesses it”. She called it “an easy sell” given the vast majority of cannabis-related offenses are for possession alone.

“The whole message of amnesty or an apology or forgiveness of any kind gets thrown to the wayside because it doesn’t fit the Liberal legalization talking points,” she said.

“On one hand Bill Blair says it’s one of the great injustices of this country, the disproportionate enforcement of marijuana laws and the way it harms marginalized communities—but he and Trudeau continue to say that law enforcement must enforce the law, that people engaged with cannabis are still criminals and should be charged.”

Despite the mixed messages, she predicts Trudeau will “dangle the carrot” of amnesty for those charged with possession in his campaign for a second term as prime minister.

Beyond the issue of amnesty, Enenajor and Owusu-Bempah both expressed that they did not expect the practices of law enforcement that result in disproportionate arrests among people of colour to slow under Bill C-45.

“The policing practices that have created these racial and other disparities aren’t going to be eliminated just because cannabis has been legalized,” said Owusu-Bempah, noting that while arrests for possession have generally gone down, in some areas, racial disparities among arrests have increased.

Enenajor hopes that by spearheading the campaign for cannabis amnesty with the support of people like Jodie Emery, Ian Campeau, and others, Canadians will let the government know that amnesty is a crucial piece to legalization by signing the Cannabis Amnesty petition.

“These are people who don’t have a voice at the legislative table, who don’t have organizations that represent them aggressively, who don’t have lobbying power in Ottawa, and it’s very easy to largely ignore them because they are on the periphery of society,” she said.

“If we don’t address it head on in C-45, we’re just amplifying the marginalization, because we’re allowing members of society who have been in many instances at the forefront of prosecuting and arresting these individuals to make obscene amounts of profit from this market.”

Campaign for Cannabis Amnesty is an Open Democracy Project Civic Campaign Accelerator participant. Website by DemocracyKit, created with NationBuilder.