Ottawa announced streamlined pardons for cannabis possession, but critics say expungement is better
When the federal government introduced legislation in March to streamline pardons for simple cannabis possession, Canada’s criminal bar had two reactions. On the plus side, pardons will “open up new avenues for people” who were convicted of possessing cannabis before the drug was legalized for recreational use in October. On the other hand, pardons don’t go far enough; better that criminal records for simple cannabis possession be expunged, defence lawyers say.
Bill C-93, tabled in the House of Commons on March 1, would allow individuals convicted of simple possession to immediately apply for a pardon from the Parole Board of Canada provided that any sentences had been completed, all related fines had been paid and the applicant has no other convictions on record. Applications would be reviewed by administrative staff, and applicants would not have to pay the current application fee of $631.
In announcing the new legislation, Public Safety Minister Ralph Goodale said that the government would not expunge criminal records for simple cannabis possession because the law that then prohibited it was legitimate.
“The record suspension model implies that a person is being ‘forgiven’ for their crime,” says Stephanie DiGiuseppe of Ruby Shiller Enenajor DiGiuseppe, Barristers in Toronto and a member of the Criminal Lawyers’ Association’s Communications and Media Relations committee. “Expungement, on the other hand, implies an acknowledgement that the activity ought not to have been an offence in the first place.
“Given the discriminatory actions that underlay cannabis prohibition and the discriminatory policing and prosecutorial practices that were a significant feature of cannabis prohibition,” DiGiuseppe says, “we believe expungement is a more appropriate model for how cannabis pardons should work.”
In 2018, the government expunged criminal records in the Expungement of Historically Unjust Convictions Acts for those convicted under Canada’s “anti-buggery” laws. The act “recognized that the criminalization of certain activities constitutes a historical injustice” and that the criminalization of sodomy “were it to occur today, it would be inconsistent with the Canadian Charter of Rights and Freedoms.”
In announcing the availability of pardons for simple cannabis possession, Goodale said that expungement was only available if it was deemed that the criminalization of a certain activity (such as a sexual activity practised in the LGBTQ community) would today be considered unconstitutional. That wasn’t the case with recreational cannabis use, Goodale said, as that law was legitimate even though it has now been removed from the books.
In February, prosecutors in San Francisco announced that they would move to expunge 9,300 marijuana-related convictions dating back decades, now that recreational cannabis use is legal in California. Other California counties, including Los Angeles, are considering similar efforts.
The Public Prosecution Service of Canada estimates that there have been upwards of 250,000 convictions for the simple possession of cannabis in Canada, according to Scott Bardsley, a spokesman for the Office of the Minister of Public Safety and Emergency Preparedness.
“For a variety of reasons, the number of people who are expected to apply for pardons under C-93 is much lower,” Bardsley said in an email message. “Those reasons include: they have passed away, they have already received a pardon or they have other criminal charges on their record,” which would make them ineligible to apply for a pardon for simple cannabis possession.
Should Bill C-93 pass, it is estimated that there would be free, expedited applications to pardon about 10,000 records, Bardsley wrote, and “we will undertake outreach initiatives to ensure that all those who can benefit know about the free, expedited process and how to use it.”
Pardon v. expungement
In October, NDP MP Murray Rankin, representing Victoria, tabled a private members’ bill, C-415, in Parliament to expunge certain cannabis-related convictions. In choosing a pardon application process over expungements, applicants will need to take the initiative in applying for the pardons, and the pardons could also be revoked.
“In my view, a pardon doesn’t go far enough,” says Caryma Sa’d of [s]advocacy in Toronto, whose practice includes criminal law, cannabis and landlord/tenant issues. “If you look at the way that cannabis possession historically has been criminalized, it’s disproportionately affected minority groups.
“What I would have liked to have seen is expungement,” she says. “A pardon says you did something wrong, you’ve paid your debt, we’ll now clear your record.” That can be helpful in terms of finding employment and housing, and even doing volunteer work, but it can also be revoked, Sa’d notes. On the other hand, “expungement says that the underlying action never should have been criminalized.”