Ontario Privatizes Cannabis Sales/ Amnesty for Cannabis Convictions
- Chrystia Freeland
Scenario:
The Canadian federal government legalizes the recreational consumption of cannabis in August of 2018, at which point the Province of Ontario chooses to adopt a monopolized format of cannabis distribution (similar to the LCBO).
BACKGROUND
Justin Trudeau has repeatedly vowed to legalize the recreational consumption of cannabis. [1] Initially, the Liberals promised federal legalization in July of 2018. [2] However, stiff opposition from the Conservatives in the Senate has slowed down the passing of The Cannabis Act. [3] As such, it is predicted that legalization is now likely to take place in August of 2018. [4]
The term “marijuana” has Mexican-Spanish roots in the United States. In the 1920s and 1930s, there was a growing sentiment against the Mexican immigrants who were supposedly bringing pot smoking with them. The term “marijuana,” sometimes spelled “marihuana” in the early days, was used to connect cannabis with the Mexican immigrants. A statement by the National Hispanic Caucus of State Legislators states, “[It was used] by racist politicians who first criminalized cannabis because they wanted to underscore that it was a Latino, particularly Mexican, vice.” The use of the term was popularized during the 1930s when Harry Anslinger, the Director of the Federal Bureau of Narcotics, began a three-decade long campaign against cannabis. In testimony before Congress, Anslinger is quoted as saying, “Most marijuana smokers are Negroes, Hispanics, Filipinos and entertainers. Their satanic music, jazz and swing, result from marijuana usage.” [5] Due to the racist history of the term “marijuana”, many people are beginning to use the term “cannabis” instead. In 2017, Halifax Councillor Shawn Clearly tweeted, “Let’s do what we can to not perpetuate racism,” pointing to the term’s racist past. [6] Hopefully, Canadians will begin to shift their terminology when it comes to cannabis.
With the Canadian government moving full-force towards the legalization of cannabis in the summer of 2018, there are still many concerns that Canadians are asking the government to consider in the legalization process. One of these concerns revolve around how to deal with Canadians who hold cannabis-related charges. Prime Minister Justin Trudeau has hinted in some interviews that the federal government is looking into granting amnesty for possession charges once the recreational legalization process is over. What would this process look like and what would it accomplish?
WHY GRANT AMNESTY?
In 2016, roughly 55,000 cannabis-related offenses were reported by Canadian Police. Of those, 81% were possession-related offenses. [7] Of all the drug related offenses in 2016, cannabis was the most common.
The data above highlights the fact that a large proportion of Canadians charged under the Controlled Drugs and Substance Act are being charged for cannabis-related offenses. With over half of the possession charges being among cannabis-users, it is clear that many Canadians would benefit from future exoneration.
What these statistics obscure is the proportion of those users which come from marginalized communities across Canada. Canadian drug prohibition laws have strong roots in the anti-opium laws of 1908, systematically designed to target Chinese people who were looking to emigrate to the country. [8] Since then, anti-drug sentiment has continued to carry racial undertones — the law continues to target marginalized communities. Although statistics on race and ethnicity are not usually tracked at the police or court level, some data has been made public.
A Toronto Star investigation in 2017 analyzed the breakdown of arrests by the Toronto police department by neighbourhood. The results showed that a disproportionate number of black Canadians were charged with cannabis possession. Between 2003 and 2013, Toronto police recorded the skin colour of 11,299 Torontonians arrested for possessing up to 30 grams of marijuana. Of those, 25.2% of them were black, 52.8% white, 15.7% brown, and 6.3% categorized as “other”. The rate of arrest for black people is significantly higher than their proportion of Toronto’s population, which according to a 2006 census was 8.4%. In comparison, white people make up 53.1% of the population.
Not surprisingly, Indigenous communities have also been historically targeted. According to a Statistics Canada survey in 2015/2016, Aboriginal adults accounted for 26% of those admitted to correctional services ever though they only represent about 3% of the population. Data sent to Maclean’s about the number of drug-related arrests as they correlated to race from Correctional Services Canada reveals that, of the 2,177 inmates in federal prison for drug-related reasons, roughly 270 were Indigenous.
Bill Blair, the parliamentary secretary to the Minister of Justice and former Toronto police chief, acknowledged this himself:
One of the greatest injustices in this country is the disparity and the disproportionality of the enforcement of these laws and the impact it has on minority communities, Aboriginal communities, and those in our most vulnerable neighbourhoods
A criminal record has a number of negative consequences for those convicted including loss of job opportunities. However, there are also negative impacts for communities and society as a whole. A 2002 study published in the Journal of Urban Health, analyzed the effects of mass incarceration under New York’s Rockefeller Drug Laws. The results concluded that the large-scale forcible imprisonment of Blacks and Hispanics in New York had similar effects on those communities as epidemics, wars, and terrorist attacks. Although this study is based on American data, the evidence that supports the fact that specific communities suffer from mass incarceration in Canada makes the link viable. Mass incarceration damages social networks, distorts social norms, and destroys social citizenship. [9]
In a country like Canada, where the concept of multiculturalism is inherently tied with national identity, the racial discrimination that has been connected with illegal drug use represents a break between identity discourse and reality. [10] Canada’s own war on drugs has targeted specific communities in a disproportionate way, attacking both individual rights and the social cohesion of those communities. In order to live up to a truly multicultural identity, Canada must right past wrongs.
What Would the Process Look Like?
POLICY OBJECTIVES
Allow Canadians with previous cannabis-related charges to petition for a change in conviction that reflects the new legal precedent — including amnesty for charges that include possession, less than 30 grams.
By offering Canadians the opportunity to petition their previous convictions, the government would offer amnesty to those who have been charged with convictions that would be deemed legal under the new Cannabis Act in July. Although white Canadians make up half of those affected by cannabis-related charges, these numbers align with their proportion with the total population. For minority populations, the proportions far exceed their total population.The historically disproportional population of minorities in prison for cannabis-related charges requires reconciliation between the government and these communities; and amnesty is one way to begin that process.
This is possible. Bill C-66, an Act passed by the House of Common in December 2017, was “An Act to establish a procedure to expunging certain historically unjust convictions and to make related amendments to other Acts.” Canada’s history with targeting minority groups makes this option suitable.
Along with legalizing cannabis’ recreational use, decriminalize other cannabis-related charges. Decriminalizing other cannabis-related charges would require a shift in the current plan, which will make the consequences for cannabis-related charges that are not recreation more severe. The proposed Cannabis Act maintains most of the prohibitions under the current Controlled Drugs and Substances Act in terms of selling and producing cannabis outside of the legal limit with proposed offenses carrying a maximum penalty of 14 years of imprisonment. The severe punishments go against decriminalizing, actually increasing the criminalization of cannabis-related offenses outside the scope of the Cannabis Act. In order to right past wrongs, cannabis should also be decriminalized.
LEGALIZATION & MONOPOLIZATION
BACKGROUND
In its 106-page final report – released in December of 2016 – the federal government’s Task Force on Cannabis Legalization and Regulation made a number of key suggestions to the federal and provincial governments regarding legalization. Perhaps most importantly, it recommended that the provinces bear the responsibility of regulating and distributing cannabis. [11] The Task Force presented “mixed views on the types of retail outlets that should be permitted,” and chose to highlight the benefits of monopolizing cannabis distribution in a LCBO-type format. [12]
These benefits are purported to include:
Increased product safety standards
A more streamlined age verification process
Reduction of consumer involvement in illicit cannabis markets
An expected boost in tax revenue [13]
In line with the Task Force’s recommendations, Kathleen Wynne’s administration has chosen to monopolize cannabis distribution in Ontario. The Liberals have stated their intent to open 40 cannabis storefronts throughout the Province following federal legalization, set to be increased to 150 by 2020. [14] Further, the Province has partnered with Shopify.com, who will possess a monopoly over the online legal sales of cannabis. [15]
Four weaknesses
in Ontario's Monopolized Approach to Cannabis Distribution
Discouraging Investment in the Cannabis Industry
It is estimated that some 14 million Canadians might consume cannabis upon legalization, creating a $22 billion per year industry. [16] Speculation regarding the cannabis industry’s economic potential has sparked a “pot-stock frenzy” in Canada, which the government should attempt to facilitate through its distribution policies. [17] However, by placing restrictions on the free-market and centralizing the distribution of cannabis (to a mere 150 storefronts and Shopify), the Province has effectively capped the success of the legal cannabis industry in Ontario. Showcasing the Province’s inability to grasp the demand for legal cannabis, the state of Colorado – which has a population half that of Ontario – currently has 800 operating cannabis dispensaries. [18] Exacerbated by the Province’s ban on cannabis advertisements, this is likely to discourage investment in the cannabis sector and anger small-business owners who currently operate illicit dispensaries and/or sell their products online. [19]
Failing to Undercut the Illicit Cannabis Market
The limitations placed on the free-market by the Government of Ontario will not only limit the tax revenue garnered through legal cannabis sales, but will also encourage the continued distribution of illegal cannabis through the illicit black market. [20] Privately owned dispensaries – the craft breweries of the marijuana industry – don’t fit into the Province’s picture of cannabis distribution. Yet, their customer bases already exist, and their infrastructure for selling cannabis is already in place. Although police raids have occurred which have shut down a handful of illicit “pot-shops,” there are more storefronts than the Police can handle in major Canadian cities. [21] In fact, it is estimated that there are currently 75+ in Toronto alone. [22]
The Task Force on Cannabis Legalization and Regulation: [23]
In the illicit cannabis market, governments face an entrenched, sophisticated market that offers a wide range of cannabis products with no oversight.
By not meeting popular demand with its supply, the Province is ensuring that purchasing cannabis products from illegal street dealers and dispensaries will remain a viable and prudent option for acquiring cannabis, despite federal legalization.
Providing an Inadequate Product to Consumers
Many of the cannabis products sold at illegal dispensaries are far stronger than what is likely to be distributed by the Province following federal legalization. In its recommendations to the provinces, the federal Task Force proposed introducing THC-limits on cannabis (capped at around 15%). [24] Moreover, the federal government has suggested a complete ban on “high-potency products…such as wax and shatter.” [25] However, in quantitative studies, the THC-content of cannabis has been proven to be the single most important factor influencing the purchasing decisions of cannabis consumers, with higher potency cannabis garnering significantly more sales. [26] Thus, this proposal is sure to upset the demographic of cannabis smokers who covet high-THC products, effectively ensuring that they continue to purchase their cannabis products illicitly. [27]
Introducing Non-Competitive Pricing for Legal Cannabis
In addition to concerns surrounding possible limitations on potency, the Provincial Government is planning to sell its cannabis at a much higher price-point than what is available on the illicit black market. The Liberal government’s Task Force suggested in its report on legalization that:
…variable tax rates or minimum prices linked to THC level (potency) should be applied to encourage consumers to purchase less-potent products. [28]
Simply put, illegal cannabis is not taxed. If the Province decides to tax its cannabis based on potency, the government is virtually guaranteeing that thousands of cannabis smokers will continue to purchase their products through illegal methods. [29] Under its current model, the Province will be attempting to provide consumers with an inferior product at a significantly higher price-point. This will reduce the tax revenue garnered from legal cannabis sales and ensure that the costs of policing the illegal cannabis industry will not significantly diminish. [30]
Sufficiency & likely objectives
To combat the negative perceptions which are likely to surround the Province’s attempt to distribute cannabis through a monopolized model, the Government of Ontario should pursue a decentralized approach to cannabis distribution, as suggested by the Green Party of Canada. This method would legitimize many of the illegal cannabis dispensaries which are currently operational, helping to support the growth of small business within Ontario’s cannabis sector. [31]
To implement this decentralized approach to cannabis distribution going forward, the Government of Ontario should:
Create “a regulatory framework for the safe production of marijuana by small, independent growers.”
Conduct a pilot project to test the private retailing of cannabis through small business upon legalization (in addition to the Ontario Cannabis Stores).
Regulate and license small businesses and dispensaries to sell cannabis in a safe, taxed, and controlled way [32]
- Chrystia Freeland