An unusual aspect of Canada’s soon-to-be-legal cannabis market is that the activists who led the legalization movement may find themselves excluded from the industry for which their efforts paved the way.

Vancouver activists like Jodie and Marc Emery and dispensary pioneer Don Briere, for example, have criminal records for possessing and selling marijuana. Now those criminal records could be used against them in federal and provincial licensing systems that are under development to decide who gets to cultivate and sell recreational cannabis.

Another 23,329 people across the country were charged with marijuana offences in 2016 alone, according to Statistics Canada. So the question of whether or not those offences will prohibit participation in marijuana sales is one that affects a lot of people.

On February 5, the B.C. government released its first batch of detailed rules for recreational cannabis and went a long way in addressing activists’ concerns for those with criminal records.

“Background checks of police/criminal records which will be examined on a case by case basis,” reads a provincial licensing guide for would-be private-retail operators.

“Having a record of criminal activity will not necessarily exclude you from obtaining a licence,” it continues. “Low risk criminal activity may not exclude a person from becoming a licensee whereas associations with organized crime will exclude a person from becoming a licensee.”

Kirk Tousaw is a Vancouver-based lawyer who specializes in drug policy. In a telephone interview, he described the guidelines as good news.

“I’m hopeful that the pioneers are not going to be excluded,” he said in reference to activists like the Emerys. “If they are prevented from doing so, then I think we’ll have a failure of implementation.”

Tousaw argued it’s a justice issue that’s larger than how retail licences are assigned.

“If you’ve been charged with a crime and convicted and you’ve served your sentence, you’ve paid your debt to society,” he explained. “When your sentence is done, I don’t think it’s appropriate for the exis­tence of that criminal record to then prevent you from participating in a lawful business in the future.”

Ian Waddell, a former B.C. MLA and lobbyist for the dispensary industry, suggested that Ottawa should act to prevent any possibility of the provinces making criminal records an issue.

“The federal government could pass some sort of amnesty,” he explained.

“If the feds don’t come across with some sort of blanket amnesty—and I wouldn’t hold my breath on that—the solution might be for the province and the cities, when they’re granting licences, to give it a fairly liberal interpretation.”

Last December, Jodie Emery  pleaded guilty to possession of marijuana for the purpose of trafficking and possession of proceeds of crime over $5,000. In a telephone interview, she focused on the B.C. government’s pledge to assess license applications on a “case by case basis”, suggesting that could leave room for arbitrary punishments for one’s politics.

Emery noted that in addition to her criminal record, she has a public record criticizing law-enforcement agencies and Canada’s justice system. If she were to apply for a B.C. license to open a cannabis storefront, could her criminal record be held against her for her political activity?

“It does make me wonder if being an outspoken activist and critic might have an impact,” Emery said.

https://twitter.com/JodieEmery/status/942831349743972354

She suggested the larger issue is a systemic problem with how Canada has approached marijuana legalization overall.

Emery explained that the Liberal government has focused entirely on health and safety. In making his case for legal marijuana, Prime Minister Justin Trudeau has seldom strayed from two points: first, that legalization will take marijuana and its proceeds away from organized crime; and, second, that regulation will keep marijuana away from children.

In stark contrast, Emery continued, U.S. jurisdictions working to legalize marijuana have focused on restorative justice, addressing racism inherent in the war on drugs and compensation for wrongs committed by law-enforcement agencies in their application of marijuana laws against people of colour.

Emery pointed to Oakland, California, for example, which in May 2016 announced it would create an “equity permits” program to see the city issue licences to sell cannabis on a basis that actually gives preference to applicants with past convictions for marijuana crimes.

More recently, San Francisco announced it would dismiss more than 3,000 convictions for misdemeanour offences related to marijuana. In support of the move, California lieutenant-governor Gavin Newsom said it would help address a “costly, broken, and racially discriminatory system of marijuana criminalization”.

Emery argued that is what is missing from conversations the Liberal government has led on cannabis reform.

“The Canadian legalization message completely abandoned the civil-liberties argument and the justice side,” she said.

“Federal government messaging has been about how marijuana is dangerous to society and that’s why they need to legalize it to protect us from it,” Emery continued. “That completely ignores the victims of prohibition and it continues the disenfranchisement and unfairness that we should be trying to fix by legalizing cannabis.”

Don Briere is the owner of Weeds Glass and Gifts, one of Vancouver’s largest chains of storefront dispen­saries. He also has multiple convictions for growing and trafficking marijuana that go back more than a decade. In a telephone interview, Briere warned that activists who have led the legalization movement will not be left out of the legal industry without a fight.

“We went to jail for this; we fought for these rights,” he said. “So we’ll be filing in court if they don’t treat us fairly.”