Is it time to change the Cannabis act?

CLIP You are listening to a Frequency Podcast network production.

Jordan Heath Rawlings  This fall, will mark five years since this country changed forever. A little bit…

CLIP Outside the Mod Club, just minutes after the clock has struck 12. And marijuana is officially legal, at least in the Eastern time zone.

Jordan Heath Rawlings Nobody expected that our government would get everything right on its first pass, but thus far the Cannabis Act has been a relative success, at least for the recreational users who took up the habit after the date it passed. People who were busted before then, however well, That’s where things get complicated.

CLIP If you’ve been charged with marijuana possession in Canada, getting a pardon has just become easier. The federal government announced August 1st that a bill, which fast tracks the process of getting pardoned, has come into effect.

Jordan Heath Rawlings Theoretically, that pardon system you just heard about should allow anyone to have their record wiped clean. In practice, though it has not worked like that. An extremely small percentage of Canadians with possession charges have actually had them cleared. Meanwhile, other places that have legalized since then, have managed to wipe out basically every possession charge with a few keystrokes. So why haven’t we done that? Why is cannabis in Canada still rife with some of the inequality and lack of justice that the Cannabis Act was supposed to help fix? Right now, this act is up for review and everything from gummies to THC count to the pardons that matter, and the makeup of the industry itself is on the table. It’s happening right now. Canada has a second chance to legalize pot with every we’ve learned in the past few years taken into account what will we do with it?

I’m Jordan Heath Rawlings. This is The Big Story. Akwasi Owusu-Bempah is an associate professor at the University of Toronto and the co-author along with Tahira Rehmatullah of Waiting to Inhale: Cannabis Legalization and the Fight for Racial Justice. Hello, Akwasi.

Akwasi Owusu-Bempah Hello, Jordan.

Jordan Heath Rawlings Thank you for finding the time for us today.

Akwasi Owusu-Bempah Oh, it’s absolutely my pleasure. Glad to be here.

Jordan Heath Rawlings I wanna ask you first to go way back with us to 2014, which kind of feels like a million years ago now. Do you remember what you thought when you first heard that a third place candidate for the Liberal party was planning to legalize recreational marijuana in Canada?

Akwasi Owusu-Bempah Yeah, you know, I, I was quite excited. It seemed like a long shot, as you’ve said. He was of course, a third place candidate. But nonetheless, you know, there’d been a lot of public support for cannabis legalization and certainly no shortage of cannabis use in Canada, in the lead up to 2014, and of course, long before. So I thought that this was a very positive intervention into both national dialogue and of course, the campaigns that were underway are about to get underway at that time.

Jordan Heath Rawlings And I think referring to it at that point as like, you know, a step in the right direction and introducing the legislation to people, is kind of accurate. But when the liberals somehow won that election, what did you think would happen next based on, you know, all, all the work you’ve done in this space?

Akwasi Owusu-Bempah Yeah. Well, I certainly didn’t think things would move quite as quickly as they did. You know, of course, any campaign platform has, a number of pillars and, and priorities. Cannabis, again, as I said, is something that Canadians, cannabis legalization, something Canadians had long been in support of and we’ve been moving in the direction of legalization in terms of the medical models that, that we’d had. But I, I, I think that, you know, The speed at which they moved on the cannabis file was a bit of a surprise and a positive, in many ways surprise for me. I think at the time and in, and certainly in retrospect, it was something that, the, the Trudeau government could, could see as a relatively easy win, by getting that passed the finish line.

Jordan Heath Rawlings I want to talk about what was and wasn’t accomplished at that time in, in just a minute. But first, you know, one of the things that I enjoyed about your book was the history and context of this, which I have to say, you know, despite, having reported and followed the legalization process in Canada, kind of closely, I had no idea how far this went back. So historically, how long has there been research and recommendations pushing for legalization in Canada?

Akwasi Owusu-Bempah Yeah, and I wanna even go back just a little bit further than that. One of the things that, you know, I think we try to get across in the book, and I certainly try to talk about with people generally is, is recognizing that drug prohibition and cannabis prohibition in the span of human history is really an anomaly.Right? We take the illegality of drugs and we took the illegality of cannabis for granted as something that just was, and perhaps was just right. Obviously that changed closer to legalization, but you know, for, for most of the time that human beings have, have been around, we as, as other mammals do, enjoy intoxicating substances. And, and so, you know, the prohibition of drugs really is the anomaly. Now, when we think about cannabis being criminalized in, in the 1920s in Canada, the span between then and, and, and getting to legalization. There were ebbs and flows with respect to how much of an enforcement priority that was. And over time, certainly cannabis had been taken quite seriously by law enforcement and enforcing laws that were set by our government of course, But in terms of, of the march towards legalization, we, we had work done by the LeDain Commission, which, kicked off in the late 1960s, 1969, and produced reports, from 1970 through 73 that pushed not only for the decriminalization, but actually the legal access and, and regulation of cannabis. So, as early as the early 1970s in Canada, we had, you know, a quite powerful and, and high profile commission calling for cannabis legalization in this country.

Jordan Heath Rawlings And they would’ve been reporting to the previous Prime Minister Trudeau, right? Justin’s father. What happened to those reports and recommendations?

Akwasi Owusu-Bempah Yeah. Well certainly the recommendation around cannabis legalization was not one that was taken up. And, and I think we need to think about this in the context of what was happening in other jurisdictions and especially south of our, our border in the United States. You know, this is just about the time that the United States is, is, setting to wage its war on drugs, right? Calling drug use public enemy number one. There were other priorities obviously, but those recommendations were very much, shelved and for many forgotten about.

Jordan Heath Rawlings As we talk about, legalization and when it first kicked in in 2018, you know, we can talk about the policy in a second, but I remember we had just launched this podcast and we did a whole week of reporting around it. And one of the episodes we did was about, social justice and cannabis. And we had on a writer who had researched this, and looked at, you know, the, the medical marijuana industry in the United States, in places like Colorado, where they’d already legalized it. And one of the main things she told us was like, look, once legalization hits, two things are gonna happen. A, a whole bunch of rich white people are gonna make a lot of money, and B, Black and Indigenous Canadians will still go to jail over this stuff. And I wanna ask you, you know, five years later, does that hold up?

Akwasi Owusu-Bempah Well, the, the first part of that certainly holds true. I’ve done some work with colleagues at the Center on Drug Policy evaluation, looking at, representation in the highest echelons of the Canadian cannabis industry. So directors, board directors, and c-suite executives amongst…

Jordan Heath Rawlings Including some former police officers, some police chiefs, right?

Akwasi Owusu-Bempah Including some former police officers where it’s really, you know, really, really gets me and I find so hypocritical and, and really offensive. But you know, those who stood to reap the highest rewards of cannabis legalization in terms of direct involvement in the industry, have overwhelmingly been white and male. And as you’ve noted, some of those have been former law enforcers, including Julian Fantino, who was chief of the Toronto Police. And I would add to that actually, Bill Blair. Although he did so as a politician, he made, you know, his kind of political start stick handling the cannabis file. And, and, you know, Fantino and Blair themselves are responsible for the criminalization of tens of thousands of people in the city of Toronto. Many of those people, Black, Brown, and Indigenous, for cannabis related crimes. So in terms of actually directly participating in the industry, it has been a largely white male business class. The same goes for the investment bankers who set up the deals to get investment into and, and, and build out these companies, as well as the people who invested significantly in the lead up to legalization. And that’s where a lot of the money was made through investing in, in publicly traded companies. Now, with respect to the, the casualties in terms of, you know, the continued criminalization, thankfully in Canada, in the years, immediately prior to, and, and certainly since legalization, very few Canadians would’ve gone to jail, specifically for single cannabis possession related offense. So we were no longer, although we were at points in our history, incarcerating people and for long periods of time for cannabis possession, we weren’t incarcerating those people for. Simple cannabis possession itself now the police would often add other crimes or what, what we call charge padding to a cannabis possession offence to secure a greater likelihood of a conviction. But the one thing I wanna note, and you know, we say state this explicitly in the book, I see cannabis as a gateway drug, not has it typically been framed as a gateway to harder drug use, but a gateway to our criminal justice system that, you know, single cannabis possession offence if someone’s convicted of that offense leaves them with a criminal record, which makes it much more difficult for them to navigate society and more likely that they’ll end up back in the criminal justice system for other offenses. So to actually answer the last piece of your question, the data that we have available to us suggests as was part of the intention of the act that criminalization, arrests and charges for, for example, simple possession are, are way, way down from the tens of thousands on average 50,000 a year in the couple of decades leading up to legalization, to just over about 2000. And other charge categories have not actually increased, significantly. Now we do see persisting racial disparities. There were racial disparities in cannabis law enforcement prior to legalization, and some of those hold, but again, the overall numbers are vastly reduced, which is positive. The lack of inclusion in the industry is not a positive thing.

Jordan Heath Rawlings As legalization was taking shape. What kind of discussion was there around people who, as you mentioned, you know, had already been charged and convicted of simple possession and had those black marks on their record. What was the conversation around pardoning, exonerating releasing though, I guess there weren’t many simple possession charges and more importantly, maybe who was shaping that conversation in the runup to legalization?

Akwasi Owusu-Bempah So initially there was nothing. And again, when we put this, you’ve referred to Colorado already. When we put this in the context of jurisdictions that were legalizing around the same time of as us, a recognition of the harm caused by drug law enforcement was part of the impetus for legalizing. And so many jurisdictions in the United States included mechanisms to clear those records of people convicted of crimes that were no longer illegal, or behaviours that were no longer illegal and downgrading. Those were fit and that was happening, you know, the exact same time that we were legalizing. Nonetheless it was initially not part of the conversation in the Canadian context at all. I had the pleasure of working with colleagues Annamaria Enenajor, who’s a lawyer in Toronto, and Stephanie de Giuseppe her, her law partner Annamaria, founded Cannabis Amnesty and our goal at cannabis Amnesty was to fight for exactly that, the clearing of, of records of people who’d been convicted of activities that were no longer illegal. And, and when we got off the ground and, and we started engaging, you know, we were surprised by, how little attention the issue had been getting and, and how little Canadians had, you know, considered the issue. We were met with a lot of support by members of the public, but initially the government had said, you know, these pardons are not on the table. And thankfully we were able to build enough momentum to insert ourselves into the broader dialogue around legalization. Now, we didn’t get the full expungement as we would’ve liked, or even the record suspensions or pardons at the time of legalization. But the government did table a bill, bill C-93 that provided an avenue for that after legalization. So I see that as, you know, one of the shortcomings of our model is that, you know, those harms of prohibition and, and, and, kind of real tangible efforts to ameliorate those harms for people previously affected by prohibition weren’t part of the legislation itself. It was absolutely not a priority for the government.

Jordan Heath Rawlings How does that compare, because a lot of your book discusses legalization in America as well. How does that compare to some American states that have also gone legal for recreational pot in terms of, you know, just to hear ’em say the pardons are not even on the table, like it sounds unusual.

Akwasi Owusu-Bempah Yeah, it, it sounds unusual. It’s in many ways, You know, one of the issues that we have in Canada is a lack of racially disaggregated criminal justice data. So, although, you know, government representatives, Bill Blair, Justin Trudeau himself did at times acknowledge there’d been unequal harm. We didn’t have the vast amount of data, that exists in American jurisdictions to show just how racialized our war on drugs had been and therefore, it was easy for our government, as is the case in in many areas and certainly areas of criminal justice to kind of ignore issues that existed. And so, you know, when we look at, states that have recently come online when you look at, you know, New York, New Jersey, Illinois, they have as part of their models of legalization built in these record, clearing and record suspension systems. Some of the earlier states to legalize, might not have done so right at the time of legalization as well. But, but processes were in the works and certainly the earliest states, to do so have subsequently cleared those records. And again, I think we need to consider that, representatives of our government were taking what I like to describe as field trips, exploratory trips to the United States, to look at the models that were emerging there. And, you know, unless they had blinders on, there was no way that they would not have been made aware of or been confronted by such schemes south of the border.

Jordan Heath Rawlings So many of the stories that we cover on this show can be traced back to like a lack of access to data in Canada as a country as a whole. Tell me why we couldn’t actually do expungement even if we wanted to?

Akwasi Owusu-Bempah We couldn’t do expungement in the way that some American jurisdictions, so I’ll, I’ll use the example San Francisco, the district attorney in, in San Francisco partnered with Code for America, which is the not-for-profit they use this technology to, to advance social innovation. They struck a partnership in which a a, an AI tool, was developed that could be let loose on, historical criminal records, identify relevant cannabis convictions and then file those convictions, those records with the courts for them to be cleared. Now this is, you know, this is one smaller jurisdiction, and, and it’s been done at the state level as well Illinois used the same model. Our criminal records, and especially around cannabis possession, lacked specificity so it wasn’t always clear exactly what drug offence an individual has been convicted of, and they’re also kept in in disparate databases and sometimes not even in databases. They’re still kind of paper copy records. And so the argument that our government made is that it was going to be too resource intensive and too onerous for them to actually take the onus upon themselves to identify and to clear those records. And so the system that was initially set up required individuals who wanted their records cleared to go through a multi-stage process. It was supposed to be free, but it would still cost someone money through a multi-stage process to have their records cleared. So really it was a lack of kind of system modernization that allowed the government to set, say that it would be too expensive and, and too difficult to do, even though, you know, as I’ve argued. It took a lot of resources and a lot of effort to create those records in the first place through policing and through conviction of course. And so you know, given the benefit that we see those, record suspensions and record expungement having for society, myself and others thought that it was, you know, simply something the government just should have done.

Jordan Heath Rawlings How many people then have availed themselves of this process, onerous or expensive as it might be since, legalization? Do we know?

Akwasi Owusu-Bempah I would say in, in the several years since that program’s been in effect, the last data I saw suggested that a little over 500 people had success, successfully received a record suspension. There were, numbers as high as 500,000 Canadians who are people in Canada who might have had a criminal record for simple cannabis possession. The government itself estimated that 10,000 people would be eligible for the record suspension under their system. And so, you know, we’re looking at a very, very small fraction of those 10,000 people when the numbers are, you know, in and around the, the mid 500s.

Jordan Heath Rawlings I gather, and I’m gonna have to get you to walk me through this because I’m not sure what it entails, that there may now be a chance to change this because the legislation around cannabis is coming up for review. What does that process look like and is there an opportunity here to do better?

Akwasi Owusu-Bempah Yeah, so thankfully the government has actually kind of separately already agreed to clear drug possession records for all substances. I think it’s about two years following, the completion of a sentence. So again, recognizing the failures of the war on drugs and recognizing the damage that a, a drug related conviction and record causes to an individual and, and those around them. The government has actually made moves to change the law to allow for those records automatically to, be suspended or, or they’re actually kind of sealed. So they’re moved away and, and less accessible. But yeah, we do have, aside from that, a review of the Cannabis Act that’s currently underway, it’s, it was built as a three year review as the act, it was built into the initial Cannabis Act. And the government is, is mandated to examine the impact essentially that legalization, has had, looking at industry, looking at public health, looking at the impact on young people and on Indigenous people specifically. And so there is a review panel that has been struck. It has a chair. It is currently, in the process of examining essentially how our legalization has unfolded and how it’s going.

Jordan Heath Rawlings As you were writing this book and researching this in so many different jurisdictions, where’s our biggest lack of equality, I guess, in the justice system around cannabis? And what else could be done during that review process? I mean, if, if you were consulted as part of that process to share your wisdom, what would you tell the government?

Akwasi Owusu-Bempah With respect to the justice piece itself, I think the biggest oversight was really like the lack of acknowledgement of the impact that drug prohibition and cannabis prohibition had had on Indigenous, Black, and, and other marginalized communities, period. You know, if, if, if we take a step back here, again, a simple possession offense might not seem like something. But an individual with a criminal record for something as benign as cannabis possession has a more difficult time completing their education, gaining meaningful employment, increasingly securing housing, traveling and, and just, you know, navigating everyday life. And that of course not only impacts upon them, but it also impacts upon their family, of course, because they’re less able to contribute to their family and they may be more stigmatized. And also communities because the nature of drug law enforcement, like other law enforcement, is often concentrated in poorer and more marginalized communities, even though something like cannabis is used across the social spectrum. And so it, it has caused untold devastation to individuals, to the families and their communities. And, you know, there was a real lack of acknowledgement and therefore a lack of efforts to redress those harms as we move towards legalization. So the criminal justice piece, of course, revolves largely around, the clearing of those records and, and I would suggest perhaps also, not only simple possession records, but other types of offences. I think we could have downgraded the severity of penalty for many other offenses. But you know, one of the real gaps with respect to justice and as a criminal justice professor, I always at the beginning of my intro Criminal justice classes have my students think about what justice really is. We can think about justice simply in the terms in terms of crime and punishment, but also in terms of fairness and equality and with respect to the fairness and equality, our legalization lacked any measure of justice because it didn’t seek to repair the harms caused by prohibition, and it didn’t seek to provide any type of incentive or advantage for people who’d been previously harmed to get into the industry itself. We’ve seen, what I would call a, a large, transfer of resources. It costs a lot of money to enforce laws. It costs a lot of money to convict an individual, and certainly if eventually you did make your way into our correctional systems, it costs a lot of money to incarcerate people. And so we’ve spent, you know, billions of dollars enforcing drug laws in this country in cannabis accounts for a, a large proportion of that. And so that’s money that’s not gone into those communities. The schools, community centers, hospitals, job skills, and trainings programs, and it’s money that’s gone to bolster law enforcement, which just serves to further entrench that marginalization. And so, you know, legalization could have, and we’ve seen in the United States, made efforts really to reverse that process. In addition, as I’ve said, to finding ways to incorporate people into industry.

Jordan Heath Rawlings How can you do that? I realize it’s a big topic. We could probably spend another podcast on it, but like, if we’re looking at this five years down the line, what can the government in the industry do to, be more just, or did Canada just miss the boat, right at the start and now this is how it is?

Akwasi Owusu-Bempah I, I don’t think we’ve completely missed the boat. I certainly think that incorporating a measure of justice at the outset would’ve been much better. But, you know, with respect to the kind of redistribution aspect, what we’ve seen in many jurisdictions in the United States that are taking these things seriously is really a three-pronged approach. It’s the clearing of records that we’ve talked about. It’s inclusion in industry, and it’s, it’s giving back to the community’s most harmed. You know, we can look at the tax figures coming in here. So we can look at jurisdictions such as Illinois, New Jersey, where funds are set up, some of which take a certain proportion of the revenue generated from legal sales. So a portion of the tax that comes in and it directs that money back into the community’s most harmed. So, it can be for, you know, the very types of social supports and, and programming that I’ve just talked about. It can go to schools, it can go to community healthcare centers. It can go to job skills and training programs. It can go to crime prevention and, and reintegration programs. Again, to revitalize those communities and provide them with resources that they need to be more healthy and more vibrant. And this is something that, you know, I, I certainly think just should have been done from the outset. We have models in the United States. They existed prior to our legalization. It’s not too late for us to do that now. And so given the fact that, you know, our kind of provincial res retailer here in Ontario is, is the most profitable cannabis business in the country and that our government has been receiving a lot in the way of tax from the cannabis industry, I believe a fund should be set up for a community health fund. A community reinvestment fund should be set up. And then the second part is inclusion in the legal industry. Now, In part because taxes are so high, and in part because the perception of how big our industry was going to be was a bit misguided. You know, we thought it was gonna be much bigger than it actually is. Our industry is certainly in turmoil at the moment. So in some US jurisdictions, you know, they have different models to incentivize or incorporate people harm by prohibition into the legal industry. So, dedicated licenses, you need licenses to cultivate, to process cannabis and, and of course to sell it as well. And so some jurisdictions have special sets of licenses, social equity licenses specifically for people who’ve been harmed by the war on drugs or who’ve lived in over police neighbourhoods to allow them greater access to the cannabis industry. it’s a highly regulated industry. It’s very difficult to get into, or can be quite difficult to get into cuz of the security checks, the financial resources that are needed, et cetera. And so providing incentive and support, importantly support to potential business owners is key. And so those dedicated licensing schemes are, we don’t have a points system here, but you know, prioritizing those groups for access. The cannabis industry has a large role to play in this as well. This is an industry that’s operating in, in a different space than many others. Again, given the history of where it’s come from. And, you know, we know that, companies and businesses then embrace diversity, outperform their peers. And so I believe that our cannabis industry also has a responsibility to repair some of the harms of prohibition. And it can do that in a number of ways through seeking to diversify, you know, companies not only at the lower levels of companies, but also at the C-suite and the director level as, as we’ve identified a need for. And it can also leverage its social responsibility efforts. Its CSR efforts to contribute to the individuals, the organizations that are working to ameliorate the negative impacts of the War on drugs.

Jordan Heath Rawlings One final question. We are now just about at the three year review of the Cannabis Act, what changes would you like to see happen?

Akwasi Owusu-Bempah One of the things that I, that I believe, we should see and others have, have shown support for this as well, is a expansion, of the goals or aims of the Cannabis Act. And this models actually the, the, the regulations and law around the Ontario Cannabis Store. One of the goals of the Ontario Cannabis Store legislation is to promote social responsibility with respect to cannabis, and I think if the Cannabis Act were expanded to include social responsibility and social justice with respect to cannabis, then we’d be able to see more equitable and just programs and funding flow from our model of legalization rather than, you know, simply a promotion of public health keeping cannabis out of the hands of young people and, and trying to eliminate the illegal market. All of which are of course, important, but they don’t acknowledge, again, the history of prohibition and, and the harm that prohibition has caused to Black and Indigenous communities in this country.

Jordan Heath Rawlings Akwasi, thank you so much for walking us through this, and your book was really insightful. I hope everybody who cares about the industry, in this country, in America, reads it.

Akwasi Owusu-Bempah Thank you very much. It’s been a pleasure talking with you.

Jordan Heath Rawlings Akwasi Owusu-Bempah co-author of Waiting to Inhale: Cannabis Legalization and the Fight for Racial Justice. That was The Big Story for more from us, including all those episodes on pot legalization that we did around 2018. You can head to TheBigStorypodcast.ca. Try typing in cannabis. There’s a lot there. You can also find us on Twitter @TheBigstoryfpn. You can of course, write us an email hello@TheBigStorypodcast.ca, or even give us a phone call. And leave us a voicemail 416-935-5935. Joseph Fish is the lead producer of The Big Story. Robyn Simon is our producer. Ryan Clark is our sound designer. Saman Dara is our research assistant, and I am Jordan Heath Rawlings. Thanks for listening. We’ll talk on Monday.