Pubdate: Sun, 09 Jul 2017
Source: Toronto Star (CN ON)
Copyright: 2017 The Toronto Star
Authors: Jim Rankin, Sandro Contenta and Andrew Bailey
Page: A1


Criminal records that are hard to erase disproportionately affect
lives, careers of Black people

More than 27,000 people in Toronto were arrested for possessing
marijuana from 2003 to 2013, a Star analysis reveals. Nearly
one-quarter of them were aged 12 to 18.

The data obtained by the Star also indicates that possession arrests
and charges rose where the "carding" of residents by police was
widespread. And just as this practice of stopping, questioning and
documenting affected Black people disproportionately, so did marijuana

About one in five people arrested were released unconditionally with
no charges going to court, but their names and noted offences remain
in a police database.

All of the offences - 40,634 for possession and possession for the
purpose of trafficking, over the decade covered by the data - are
documented in the Toronto Police Service arrest and charge database,
regardless of whether a charge was tested in court. Of those charges,
34 per cent of them were against Black people. During that period,
Toronto's Black population was around 8 per cent.

Police note that in about half of the cases, an arrested individual
was facing another criminal charge or charges, not related to
marijuana possession. Outcomes of court cases are not part of the data
released to the Star in a freedom-of-information request.

This rare, race-based glimpse at those most affected by marijuana
arrests and charges confirms anecdotal evidence of systemic bias, and
highlights a challenge faced by the federal Liberal government.

As it moves to legalize marijuana by July 2018, what should it do for
citizens with possession records?

Pardons are an expensive and bureaucratic process, so some have
suggested a widespread amnesty. Pot is the most popular of Canada's
illicit drugs.

According to the 2015 Canadian Tobacco, Alcohol and Drugs Survey,
about one in 10 Canadians aged 15 and older reported marijuana use in
2013. One-third of Canadians reported using it at some point in their

The police-reported crime rate peaked in 1991 and had been declining
ever since. Not so the police-reported rate of drug-related offences.
They grew by 52 per cent from 1991 to 2013, according to a Statistics
Canada report.

There were 109,000 police-reported drug offences under the Controlled
Drugs and Substances Act in 2013 alone, with two-thirds involving
cannabis. In fact, half of all the offences were for possession of
pot. Cocaine accounted for the next largest group of offences at 16
per cent.

About one in 20 incidents reported by police on 2013 was primarily
drug-related, according to the Statscan survey.

Affected most by police-reported drug offences are young people, ages
18-24, charged at a rate of 1,176 per 100,000 people in that category,
followed by those 12-17 at a rate of 741 per 100,000.

In roughly half of completed cases in youth and adult courts involving
marijuana, the marijuana charge was the only charge. Marijuana cases
across the country were "more commonly stayed or withdrawn (55 per
cent) than cases involving other types of drugs (38 per cent)," notes
the Statistics Canada report.

While possession charges laid by Toronto police gradually increased
under Bill Blair's tenure as chief, in 2013, the service ranked low in
laying of drug offences, per capita, compared to other large urban

Across Canada in 2013, 41 per cent of marijuana-related offences were
"cleared" - or disposed of - before reaching court, compared to 17 per
cent for other drug offences.

Police have been using discretion to keep a lot of marijuana cases out
of the courts, but police databases that track arrests have, in many
cases, indeterminate shelf lives.

"Once you're on the radar, you're always on the radar," says Daniel
Brown, a Toronto criminal lawyer.

In Toronto, a first arrest for simple possession often results in an
unconditional release or diversion, resulting in no criminal record,
but the arrest remains in the system.

A second arrest may not be treated as lightly and can affect
employment and travel. Often, conditions are placed on the convicted,
leading to administrative charges for breaching those conditions,
which can include automatic jail time.

There are calls for the government to tackle the almost century-long
legacy of marijuana laws, and their disproportionate impact on poor
and non-white communities, particularly Black and Indigenous peoples.

A poll in May by Nanos Research and the Globe and Mail indicated 62
per cent of Canadians support or somewhat support a pardon - now known
as a record suspension - for people with a criminal record for
marijuana possession. Of the respondents, 35 per cent were opposed or
somewhat opposed to a pardon.

The C.D. Howe Institute in a 2016 report also called on the federal
government to pardon people whose only Criminal Code charge or
conviction is for marijuana possession.

"Such individuals would benefit in terms of not experiencing possible
travel restrictions and being able to access more labor market
opportunities, resulting in economic benefits to governments as well,"
said the report, written by Anindya Sen, an economics professor at the
University of Waterloo.

A criminal record for marijuana further marginalizes already "targeted
and over-policed" black people by making them ineligible for many
good-paying jobs, says Kofi Hope, executive director of the CEE Centre
for Young Black Professionals.

Faced with high unemployment, some Black youths turned to selling
marijuana to make ends meet, says Hope, whose centre provides skills
training and career development programs for young Black people.

"It doesn't require a resume, it doesn't require a job interview,
sometimes it doesn't even require start-up capital - someone will just
give you something on consignment," he says. Besides, Black people are
constantly confronted with the expectation of being dealers: "You walk
down Yonge St. and people come up to you all the time, 'Hey man, you
got weed?' "

Selling, at least in some forms, will soon become legal. But when it
comes to the legalized marijuana industry, marijuana convictions will
likely exclude people from jobs. Meanwhile, everyone from the
Tragically Hip to Shoppers Drug Mart is poised to cash in on the new

Hope says this further injustice isn't lost on the Black community.
"You often hear people say, 'People in the community have had their
lives ruined by consuming this substance or being involved in
distributing it. And now, folks from outside of the community are
going to be making hundreds of millions of dollars off of this. This
is messed up.' "

He wants the federal government to give people with marijuana records
a chance to work in the new economy through programs similar to Smart
Serve Ontario, which trains and certifies people for work in
businesses that serve alcohol.

In Toronto, a first arrest for simple possession often results in an
unconditional release or "diversion" - a donation to charity, for
example. The accused walks away without a criminal record, but the
arrest remains in police databases and can haunt, particularly during
carding stops.

(Aggregate data from 2014 to 2016 sent to the Star by Toronto police
shows a sharp decline in the use of unconditional releases for
marijuana possession charges. Police were not immediately able to
explain the reasons for the decrease.) Those with influence and the
money to afford good lawyers are especially assured of diversion, as
Prime Minister Justin Trudeau made clear earlier this year. He told
the story of how his father, former prime minister Pierre Trudeau, had
the resources to make sure marijuana charges against Justin's late
brother Michel did not lead to a criminal record "for life."

"He reached out to his friends in the legal community, got the best
possible lawyer and was very confident that he was going to be able to
make those charges go away," said Trudeau, who has also admitted to
smoking pot.

"People from minority communities, marginalized communities, without
economic resources, are not going to have that kind of option to go
through and clear their name in the justice system," he said, adding
that a "fundamental unfairness of this current system is that it
affects different communities in a different way."

What will Trudeau do for those without his family's privilege and

The government has hinted that some sort of plan to address criminal
records would be rolled out once marijuana is legal. Caitlyn Kasper, a
lawyer with Aboriginal Legal Services in Toronto, says there hasn't
been serious thought about what that should look like.

"It just seems like that discussion hasn't been happening at all and
it really feels like they're riding this wave of legalization, and how
great it's going to be with the Cannabis Act, and how this is putting
us forward into the future - and they're not taking a look at what
it's done in the past at all," says Kasper. "And that is seriously

Defence lawyers and academics call marijuana possession a "gateway
charge," because it often leads to more serious charges and
convictions when bail conditions are broken, particularly for whose
who can't afford lawyers. Automatic jail time often results.

A growing number of voices are calling for amnesty, a way of wiping
possession records clean and giving people a fresh start, particularly
in the job market.

"Amnesty is an economic and social imperative," says Hope. "But first
and foremost it's a moral imperative.

"There should be an amnesty because the application of the (marijuana)
law was unjust and biased," he says, adding it was "arbitrarily
enforced along race lines."

Untangling criminal records for pot offences from other offences is
going to be difficult and expensive.

Without an amnesty, the only route to clearing a record would be
applying for a pardon, or record suspension - an expensive and onerous
option that costs hundreds of dollars and require legal help. The
application processing fee alone costs $631. The poor and racially
marginalized would again lose out.

"It's the same story all the time in the justice system," says Kasper.
"Those who can pay for and afford justice will get it.

"If they were serious about this, why are they not engaging with more
groups who are directly legally representing the people who have been
most affected by these laws?"
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