Tuesday November 27, 2018

Criminal Records and Cannabis Possession: How Will Unjust Convictions be Erased?

Authored by: Terrance G. Sheppard Posted in: Criminal Law

On October 17, 2018, the Cannabis Act came into force, and with it, possession and consumption of recreational cannabis became legal. For many Canadians, this is good news, and many are wondering whether legalization will have any impact on historical convictions for the possession of cannabis.

Before legalization, many Canadians faced criminal charges for possession of cannabis. In 2017, 13,768 people were charged with possessing cannabis, down from 17,720 in 2016.[1] Enforcement of cannabis possession laws has been heavily racially biased, with Black and Indigenous people disproportionately convicted of possession. This led former policeman and Liberal MP Bill Blair to state that:

“One of the great injustices in this country is the disparity and the disproportionality of the enforcement of these laws and the impact it has on minority communities, Aboriginal communities and those in our most vulnerable neighbourhoods.”[2] 

In addition, many of those with criminal convictions for possessing cannabis have experienced issues related to schooling, employment, and international travel.

Pardons for Cannabis Possession?

On October 17th, 2018, Public Safety Minister Ralph Goodale announced that the government plans to table legislation which will expedite the pardon process for those with a criminal record for cannabis possession. While draft legislation has not been released, the government has stated that legislation could include reducing the waiting period normally required before receiving a pardon and waiving the $613 pardon application fee.

Pardoning cannabis possession convictions could bring many benefits but, as always, the devil is in the details. The Canadian Police Information Center, or CPIC, is a system used by law enforcement to track interactions with the justice system ranging from speeding tickets to criminal convictions. This system is used by officers to share information, including with authorities in the United States.

The government has not specified how pardoned convictions for cannabis possession will appear in CPIC. While a person may have received a pardon for possession of cannabis under Canadian law, this does not oblige a US authority who has access to the CPIC system to ignore a pardoned conviction.

For example, a person who has a pardoned cannabis conviction may be refused entry into the US on the basis that they have a criminal conviction on their record. Cannabis remains illegal under US federal law, and a pardoned Canadian conviction may be viewed as sufficient grounds to exclude a person from entering the US. 

A Different Direction?

Murray Rankin, the NDP justice critic, recently announced a Private Members Bill known as An Act to Establish a Procedure for Expunging certain Cannabis-related Convictions.[3] The draft version of the bill authorizes the Parole Board of Canada to expunge convictions for the possession of cannabis that would have been legal had the Cannabis Act been in force. It is worth noting that Private Members Bills rarely become law.

This proposal is similar to measures outlined in the Expungement of Historically Unjust Convictions Act.[4] This act, meant to address legal discrimination in the form of same-sex sexual offences, allows for convictions to be expunged, and for judicial records related to these convictions to be destroyed.

Forgiving vs. Forgetting

“Pardons” and “expungements” are similar concepts with very different effects. In Canada, a pardon (now known as a record suspension) is the recognition that an offender has been successfully rehabilitated and deserves to have their criminal record sealed.[5] On CPIC, this means that a pardoned conviction will become hidden from many CPIC users.

On the other hand, when an expungement is granted, the individual is deemed never to have been convicted of the offence.[6] In theory, their record is wiped clean of the conviction that has been expunged, and no user of the CPIC system, either in Canada or the US, will see that they have been convicted.

Whether legislation intended to address historical convictions for cannabis possession will grant pardons or expungements remains to be seen. Any bill moving through the legislative process may change drastically and we will be keeping an eye on the legislative process as it unfolds.

If you have any questions on receiving a pardon for a cannabis possession offence, or any other criminal offence please speak with one of our Criminal lawyers.

[1] Statistics Canada.  Table  35-10-0177-01   Incident-based crime statistics, by detailed violations, online: <https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510017701>.

[2] Joshua Ostroff, “How cannabis equity can help make up for the racism of the War on Drugs.” (26 October 2018), online:<https://www.theglobeandmail.com/opinion/article-how-cannabis-equity-can-help-make-up-for-the-racism-of-the-war-on/>.

[3] Bill C-415, An Act to establish a procedure for expunging certain cannabis-related convictions, 1st Sess, 42nd Parl, 2018. Accessed 26 October 2018, online: <http://www.parl.ca/DocumentViewer/en/42-1/bill/C-415/first-reading>.

[4] Expungement of Historically Unjust Convictions Act S.C. 2018, c. 11

[5] R. v. Z. (R.) 2016 ONCJ 438.

[6] Black’s Law Dictionary 8th edition, “expungements.”

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