Bill C-5, which received Royal Assent last week, was called an “ambitious yet understated piece of legislation” by Cannabis Amnesty in the Report on Bill C-5: An Act to Amend the Criminal Code and the Controlled Drugs and Substances Act, released today.
Founded in April 2018 ahead of cannabis legalization, Cannabis Amnesty strives to achieve justice and equity for the most vulnerable communities by educating, inspiring, and mobilizing on issues related to the impact of historic cannabis convictions. Central to Cannabis Amnesty’s mission is the belief that legislation must be passed to undo the harms caused by the criminalization of cannabis and its unequal enforcement on Black and Indigenous people.
The group began lobbying the Canadian government in May 2018 to enact legislation granting amnesty to all individuals for the offence of simple possession of cannabis. They call Bill C-5 a “direct response” to their efforts.
A Significant Shift for Drug Policy in Canada
Laid out in the report are the three areas of what Bill C-5 touches on: 1) Eliminating mandatory minimums of certain non-violent firearm and drug offences; 2) providing additional discretionary powers to law enforcement to choose alternative responses to drug use; and 3) implementing the automatic sequestration of drug possession charges within a two-year time period.
Of great significance within Bill C-5 for drug policy is its Declaration of Principles in Section 10 of the Controlled Drugs and Substances Act (CDSA), which re-orientates substance use as a social and health issue rather than an issue of the criminal justice system.
Cannabis Amnesty’s advocacy approach involves specific lenses in its analysis and advocacy in drug and cannabis policy. The first involves a racial justice lens that recognizes the insidious and disproportionate targeting of Black and Indigenous people for cannabis offenses. The second lens concerns prioritizing public health and harm reduction, where public safety efforts prioritize treatment and prevention rather than criminalization and punishment.
The report underscores the reality that Black and Indigenous people are more likely to have encounters within the criminal justice system than other Canadians, despite similar drug use rates across racial groups. Holding a criminal record for offenses goes beyond time served, expanding into high unemployment rates and a higher risk of re-offending due to the inability to secure income.
Advancements and Drawbacks of Bill C-5
Cannabis Amnesty’s analysis cites and a few issues that are yet to be sufficiently dealt with.
C-45 repeals previous sections of the Criminal Code and the CDSA that placed mandatory minimum sentences on specific offenses, including the trafficking of prohibited substances. The group states that removing a mandatory minimum allows for more humane, case-specific sentences to be crafted by judges. The group also says that mandatory minimums were one of the issues that caused Black and Indigenous people to be disproportionately incarcerated.
Amendments to Sections 10.2 to 10.5 of the CSDA provide discretionary powers to police to divert an arrest. Cannabis Amnesty states that in cases in Canada where discretion by state players towards diversion is allowed, Black and Indigenous people remain disproportionally arrested and less likely to receive bail. The group states that this legislation only requires police to consider diversion. Cannabis Amnesty calls for a mechanism to hold police officers accountable and for the government to implement a policy of keeping national, race-based criminal justice data on the exercise of discretion to see whether discretion disproportionately harms Black and Indigenous people.
Sequestering Conviction Records
Section 10.6 was an addition to Bill C-5 that provides for the free, automatic, and permanent sequestration of conviction records relating to the possession of all drugs, not just cannabis. Before C-5, criminal records on possession were only to be set aside. Now, records are not only set apart but also deem that a conviction never took place. While Cannabis Amnesty has been advocating for records expungement, the group notes in their report that records sequestration provides a remedy that is closer to what an expungement would enable.
They say a downfall of this change is that the United States government will still recognize a conviction and bar travel across the border, and records will not be destroyed or removed from the repositories and systems of the RCMP, federal departments, or federal agencies. Another downfall of the deeming provision (deeming a crime never to have taken place), is that it only pertains to future convictions and not those that occurred before the passing of the Bill.
Bill C-45: A Direct Response to Lobbying Efforts
In conclusion of the report, Cannabis Amnesty “applauds the steps taken by the Government of Canada to decrease the impact that the blunt instrument of criminal law has on Indigenous, Black, and vulnerable people in Canada”. They highlight the significance of a shift in how Canada approaches drug consumption that removes the moralization and criminalization aspects.
They say that Bill C-5 still does not totally address the collateral consequences of criminal drug convictions, encouraging “partners and allies to continue to advocate for broader reforms to Canada’s criminal record regime.”