During prohibition, one of Al Capone’s liquor suppliers was a young Canadian named Samuel Bronfman. A Jewish immigrant whose family fled czarist Russia, Bronfman started his rum-running career as the owner of a small hotel and mail-order whiskey distributor. Then, prohibition hit. Instead of destroying Bronfman’s business, prohibition was a boon – he set up “export houses” along the border between Saskatchewan and North Dakota, partnering with criminal organizations like Capone’s to smuggle his product, and reaped the profits. But in 1922 Bronfman’s brother-in-law was killed, allegedly by gangsters, and Bronfman took it as a cue to leave the illegal trade. His family moved to Montreal and built up their legal business inside Canada, only re-opening their U.S. sales once prohibition ended. When Bronfman died in 1971, he was a multi-millionaire and the owner of Seagram Co. – the biggest producer and distributor of alcohol in the world. In a country humble about its own historical figures, Bronfman’s story is told with a rare romance and nostalgia. His is the legend of the plucky upstart, a self-made man who took opportunity as it came.

What made Bronfman’s story possible? In part, it was that no one held his past actions against him. In fact, he profited off of them, in terms of money, experience, and respect.

In 2018 Canada will become the second country in the world to end a different kind of prohibition—that of marijuana. This time around people who, like Bronfman, participated in the illegal trade of the substance will have a much harder time breaking into the legal market. That is because Canada’s proposed law lets the government prohibit anyone with a drug-related criminal record from taking a leadership role in the industry. With this policy, the Government of Canada is erecting barriers to employment for poor people and people of color, who are not necessarily more likely to sell or use marijuana, but are more likely to be arrested—and therefore develop a criminal record—for doing so.

 Shut out of employment in a growing industry

The legal marijuana industry is about to become a huge job-creator. Deloitte released a study late last year estimating that legal sales of recreational marijuana across Canada could quickly reach between $5-8.5 billion dollars per year.

A recent OnLabor blog post laid out the many high-paying job opportunities that come with marijuana legalization including the roles of “grow master”, with a starting salary of $100,000, “edibles chef”, at a salary of $40-90,000, and store manager, which can bring in $60,000-150,000. The industry will also create jobs that are likely to be lower paid such as “bud trimmers” and store clerks.

Under the proposed legislation, the “Cannabis Act”, the federal government will license the marijuana supply chain, and can refuse licenses to anyone who, in the past ten years, has been convicted of a drug crime. That means that anyone with a drug-related criminal record can be excluded from importing, exporting, producing, testing, packaging, or even labeling recreational marijuana products. In other words, people with criminal records will be excluded from many of the industry’s higher paying job opportunities. They might also be left out from the lower paid jobs, depending on the preferences of business owners who do receive licenses—many Canadian provinces have minimal to no laws protecting workers from discrimination based on criminal history.

Who, specifically, will be left out of the boom?

Data in the United States suggests that although black people and white people use marijuana at roughly equal rates, black people are 3.73 times as likely to be arrested for possession. The Canadian government collects few race-based criminal statistics, so it is hard to know whether this trend applies in Canada. However we do know that marijuana use is widespread in Canada—more than one third of adult Canadians report having tried marijuana, and Canadian youth are more likely than youth in other countries to partake.

In 2013, around 73,000 Canadians received criminal charges related to marijuana, and about 32,000 of those resulted in conviction. Corrections Canada has stated that visible minority offenders are incarcerated more often for drug-related offenses than white offenders. The demographics of prison populations also suggest that people of color are more likely to face criminal charges for their actions—Aboriginal and black people each make up 3% of the Canadian population, yet 25% of inmates in provincial prisons and 22% in federal prisons are Aboriginal, while 9.5% of prisoners overall are black.

This data suggests that if the Canadian government chooses to exclude people with drug-related criminal records from full participation in the legal marijuana market, they will likely be disproportionately excluding people of color and poor people— not because they are any more likely to commit drug crimes, but because they were more likely to be caught, tried, and convicted. Prime Minister Trudeau himself made this point in a recent interview when he told the story of his own brother, Michel, who was arrested for marijuana possession but escaped conviction thanks to his family connections.

Learning from experience

The challenge of building a more equitable marijuana industry is not unique to Canada. Some states that have legalized marijuana have proposed innovative approaches to this problem.

Massachusetts, one of the most recent states to legalize, will not license people with criminal records, but makes an exception for those who have solely been convicted for a marijuana offense. In California, people with criminal records are mostly prohibited from obtaining state licenses, but exceptions are made if the licensing authority believes that, based on an applicant’s “crime, conviction, circumstances and evidence of rehabilitation,” granting a license “will not compromise public safety.”

Retail licenses in California are handed out at the municipal level. In Oakland, the City Council voted not only to allow people impacted by past marijuana laws to obtain licenses, but to prioritize those very people. Going forward, the Oakland City Council will give out every other permit to people who have been incarcerated for cannabis-crimes, or who live in six neighborhoods “hit hardest by drug arrests.” The policy isn’t perfect, and the City has said it will review and adjust it as needed, but it presents a creative solution that Canadian legislators could consider.

Shaleen Title, who runs a recruiting and staffing agency focused on staffing marijuana-related jobs, has been at the forefront of efforts to increase equity in the industry. She says, “this industry was created by campaigns using talking points about the systematic destruction of communities of color to encourage voters to pass legalization.” Therefore, she argues, an equitable marijuana industry is a form of reparations for the catastrophic war on drugs.

Canadian policymakers need not copy and paste any of the policies that American cities and states have implemented, but they should take advantage of the experimentation happening, and take inspiration from creative solutions being proposed.

An opportunity for equal opportunity

It is worth asking why the Government of Canada inserted this employment policy into the Cannabis Act in the first place. The John Howard Society (JHS), a Canadian group advocating criminal justice reform, conducted a survey that found 70% of Canadian business owners who ask for criminal background checks do so because of concerns about safety and liability. It seems likely that the Government of Canada’s policy choice is rooted in similar concerns. Yet 73% of the business owners the JHS surveyed who actually hired people with criminal records, found their experiences with these employees were no different than with other employees. In other words, employment discrimination against those with criminal records, like arrests and convictions themselves, is often based in implicit bias rather than in real threats posed by individuals.

Instead of further entrenching the discriminatory impacts of marijuana prohibition, the Government of Canada should seize the opportunity that the Cannabis Act presents—give people with criminal records a chance to succeed in the legal market, and let them show that in these changed circumstances they, like Bronfman, can thrive.