Approximately 500,000 people in Canada have a criminal record for simple cannabis possession, which is possession of less than 30 grams of cannabis for personal use with no intent to traffic. Now that cannabis is legal in Canada that charge no longer exists, but if you were convicted of simple possession prior to legalization the punishment would have been a fine of up $1000 and six months in jail. More importantly, you would have been stuck with a lifetime criminal record.
According to recent studies, a large majority of the people in Canada who have a record for simple cannabis possession are from marginalized groups. Rates of cannabis use are pretty evenly matched among white, black and Indigenous people, but separate reports by the Toronto Star and Vice News found that arrest records in several cities do not sync up with those statistics. The rates of black and Indigenous people charged with simple cannabis possession compared to white people are much higher. For example, in Toronto the rate of black citizens being arrested for simple possession is three times higher than for white citizens despite nearly identical rates of usage, in Halifax black people are five times more likely to be arrested, and in Regina Indigenous people are nine times more likely to be arrested for cannabis possession than white people. As a result, marginalized populations targeted under prohibition have had a harder time finishing school, gaining employment, volunteering and securing housing.
Currently anyone with a criminal offence can apply to have that offence pardoned following a waiting period of up to ten years. The application process is fairly onerous and the cost at $631 is quite steep, so not surprisingly the number of people who actually apply is quite low. In 2017-2018, the Parole Board of Canada received just 14,661 record suspension applications for all offences. Just over 1,000 were for drug possession.
When cannabis became legal last fall, the federal government promised it would create a new amnesty process that would make it easier for people who have a record for simple possession to apply for a pardon. On March 1, 2019, the federal government followed through on that promise when it introduced legislation that, when passed, will make it cheaper and quicker to get a pardon for simple cannabis possession. Bill C-93 will waive the $631 pardon application fee and will remove the waiting period. The news release announcing the bill stated, "Removing the stigma of a criminal record, and eliminating the fee and waiting time for people who have already served their sentence.... enhances public safety and opportunities for all Canadians." But does it go far enough? Advocates for a cannabis amnesty say absolutely not. Instead of free and fast pardons, they want an automatic expungement of convictions for simple cannabis possession.
There are some pretty big differences between a pardon, which is also called a record suspension, and an expungement of records. An expungement is a process that results in a person's criminal record being completely and permanently destroyed. There is no way that the record could ever be reinstated in the future, which is a possibility with a pardon. With a pardon, the record is not destroyed, but simply kept apart from other criminal records. It cannot be accessed by the public, employers and most government agencies, but a person pardoned for a crime would still have to check the "convicted of a criminal offence" box on an application for housing or employment. Because the record still exists in a data base, there is also the fear that it could be disclosed accidently. The government's backgrounder on Bill C-93 states that "Suspended criminal records can only be disclosed by the Minister of Public Safety in exceptional circumstances and would not normally be disclosed when a background check is conducted."
Advocates of expungement have also flagged that there are certain situations when pardoned records could be reinstated. "The record suspension can be reversed if the person is deemed not to be of good character, or if they commit another offence" said Akwasi Owusu-Bempah, a University of Toronto Sociologist who specializes in crime, policing and race. "Importantly, if another government were to decide that the record suspension should never have happened in the first place, they could also reverse them." Expunged records can never be reinstated.
In addition to his work as an Assistant Professor of Sociology, Owusu-Bempah also volunteers his time to "The Campaign for Cannabis Amnesty," which is calling for the automatic expungement of all simple possession records. He believes the expedited pardon process is a step in the right direction but says it does not go far enough to repair the harms done by cannabis prohibition.
Toronto Lawyer Annamaria Enenajor, who spearheads "The Campaign for Cannabis Amnesty," shares Owusu-Bempah's view that more work needs to be done. In particular, Enenajor says, there needs to be a process that is automatic and not user-initiated. The pardon bill introduced by the federal government is a user-initiated application process which Enenajor says is problematic. "Even though the process is free and expedited, it doesn't mean that it is not complicated or complex," said Enenajor. "Part of the application process is a thorough explanation on why the person has been rehabilitated, how they have contributed to society in a meaningful way and how they have taken positive steps in their lives. This is an onerous process and not necessarily accessible."
The government has said that an application-based system is the right way to go. A backgrounder issued by the Ministry of Public Safety states it is "the most effective way to ensure both broad access to pardons and informed decision-making." The expedited pardon process only applies to people who have only been convicted of simple cannabis possession. The application process means that applicants will have to prove to the Parole Board of Canada that they were only convicted of simple possession before they can receive a pardon.
As for expungements, the Ministry of Public Safety says this is not the type of situation that warrants such an extreme measure. It states expungement is "reserved for cases where the criminalization of the activity in question and the law never should have existed, such as in cases where it violated the Charter." The process of expungement was most recently used by the Liberals in Bill C-66 in the fall of 2017. That legislation allowed for the destruction of criminal records of those who were prosecuted for consensual sexual activities between same-sex adults. Even though consensual homosexual activity was decriminalized in 1969, Canadians continued to have criminal convictions on the books for obsolete crimes such as buggery, gross indecency and anal intercourse. Ralph Goodale, the Minister of Public Safety, said that Bill C-66 came down to a fundamental injustice against LGBTQ2 Canadians and that is not the case with Canadians convicted of simple cannabis possession.
Enenajor believes, however, that a fundamental injustice has in fact occurred as a result of the legacy of cannabis prohibition in Canada. She says that it resulted in the unequal enforcement of laws against certain segments of the population who were over-represented in arrests and convictions. Black and indigenous people along with others in vulnerable neighbourhoods were more likely to be arrested and convicted even though there is an equal number of people consuming cannabis across the population. "There was an overrepresentation of the vulnerable population and that is unfair," said Enenajor. "Those people have to suffer consequences for an act that our Prime Minister has admitted doing several times and yet he faced no consequences."
Prime Minister Justin Trudeau has in fact admitted to smoking weed five or six times and, in 2013, Trudeau revealed to Huffington Post Canada that he had even smoked marijuana since becoming a Member of Parliament. Trudeau, who was Liberal Leader at the time of the interview, said he had last smoked up about three years earlier while socializing with friends in his backyard. His children were not at home. Trudeau was never caught with marijuana but his younger brother Michel had possession charges pending against him when he died in an avalanche in 1998. Three months before the avalanche, Michel had been in a car accident and when police were helping him pick up items that had been thrown from the vehicle they found a small tin with a few joints in it. Justin Trudeau has said the fact that his brother died with criminal charges hanging over him was one of the factors that led him to support the legalization of cannabis. In another interview with Vice News about his brother's possession charge, Trudeau admitted that Michel likely would have been able to beat the charge because of their father's influence and their access to legal resources--something that most people cannot rely on when faced with a criminal charge.
Last fall, when cannabis was legalized in Canada, Prime Minister Trudeau said that an expedited pardon process would help communities that had suffered from a discriminatory enforcement of the old pot laws. "There is a disproportionate representation of young people from minorities, racialized communities who are saddled with criminal convictions for simple possession as a significant further challenge to success in the job market. This is going to make a real difference to people who've been unfairly impacted by the previous regime," he said.
Owusu-Bempah disagrees. "I would like to see the complete erasure of criminal records for cannabis-related crimes that are no longer illegal. This would signal that the government acknowledges that it was wrong to criminalize the behaviour in the first place." Owusu-Bempah believes that the federal government should say sorry to marginalized communities targeted by the old laws. "I don't think cannabis legalization will be a success in this country until our government officially apologizes for the harms caused by prohibition."
If passed by the House of Commons and the Senate, the law which sets out the expedited process is expected to take effect by this summer, Enenajor is hopeful that the government will be open to some amendments to Bill C-93 during the committee stage, in particular some of the sections set out in a private member's bill introduced by MP Murray Rankin, the NDP's Justice Critic. Rankin's bill would expunge all convictions for simple cannabis possession. "I am most disappointed that Minister Goodale ruled out expungement because he claims there is no historical injustice, but I completely disagree," said Rankin. "The disproportionate impact felt by indigenous and racialized communities represents a deep historical injustice and one that should be addressed immediately."
One final reason that advocates are pushing for expungement over pardons in Canada relates to travel restrictions to the United States. Just because you have received a pardon does not require American authorities to let you into that country as they are not obligated to recognize foreign pardons. An expungement of records is considered a better way to ensure that someone is permitted to travel into the United States, but the Ministry of Public Safety points out that there is still no guarantee of admittance. If your record had been flagged previously by US authorities, it will likely still show in their database even if your record has now been expunged in Canada. The only way around this is to apply for a waiver through US Customs and Border Protection, which costs about $600 and takes about a year to process. Unfortunately, without a waiver, that old pot charge may still come back to haunt you.*
Kathy Kenzora is a freelance journalist and podcaster who resides in Mississauga, Ontario. Her podcast, The History of 1995 was selected by Apple Podcasts as one of the best in Canada in 2018. Visit her website www.1995podcast.com to learn more.
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|Date:||Jun 22, 2019|
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