Accounting for Law

Amnesty needed for those convicted of marijuana possession

Toronto criminal lawyer Annamaria Enenajor tells Radio-Canada that she’s urging the federal government to draft an amnesty program to wipe the legal slate clean for those convicted of possession of cannabis, a disproportionate number of whom are black.

While Ottawa plans to legalize marijuana sometime this July, the government has so far said there will be no amnesty until after the legal regime comes into effect this summer, says the French-language public broadcaster.

Enenajor, a partner with Ruby Shiller & Enenajor, Barristers, is among those lawyers trying to move the government along in this; she is contemplating a legal challenge under the Canadian Charter. Other lawyers are looking at class-action lawsuits to spur government action, says the article.

Without amnesty, it is violative of the Charter, she says.

Enenajor says there has been a slow realization that police discretion when it comes to the enforcement of marijuana offences disproportionately affects marginalized groups, particularly young black men.

She notes the problem with Canada's plan to implement a legal scheme for licensing the distribution, sale, production, import and export of cannabis is that those who have been impacted by the criminal law’s adverse effects are being ignored.

“One of the ways we see this happening is s. 62 of Bill 45. This bill lists grounds for the refusal of issuance of licences and permits with respect to selling, producing, importing or exporting cannabis,” she says. 

“Significantly, among those listed grounds is that the individual must not have had a criminal record with respect to the Controlled Drugs and Substances Act in the last 10 years. So in attempting to bring about and create a legal marketplace, for people to be able to make a business out of something we are now legalizing, we are excluding the vast number of people who, as a result of disproportionate enforcement of marijuana offences, have records and therefore are unable to participate in this new economy.”

Enenajor says there is an equality argument because it has been documented that this law has explicitly impacted minority groups.

“This legislation, in ignoring their particular circumstances, is actually perpetuating inequality, the stigma of a criminal record, and will continue to have a disproportionate impact on those who are poor, from a minority group, or live in areas with a heavy police presence,” she says. 

Enenajor says it’s difficult to answer why African-Canadians weren’t consulted on how the cannabis regime would work.

“It disproportionately affects that community,” she says.

There’s no reason why the government can’t bring forward an amnesty bill immediately to address this, Enenajor says. 

“We’re not talking about people whose possession offence was a gateway to a larger career as a member of a drug cartel,” she says. “This is somebody who was 18 or 19 and was caught by the cops for having a spliff in their pocket and now, for the rest of their lives, has a simple possession offence on their record.

“It’s very easy for the government to draft legislation to make this go away. It’s low-hanging fruit.

“There’s no principled reason why the government would not do it. It’s easy and it’s the right thing to do.”

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