Now that cannabis is legal, where does it leave Canadians with criminal records for past pot convictions?
Early on the morning of legalization, October 17, 2018, Public Safety Minister Ralph Goodale held a press conference to answer that very question.
In his address, Goodale confirmed that the Liberal government will introduce legislation to allow Canadians who have received criminal sentences in relation to cannabis possession to apply for a pardon. He also confirmed that they will not have to pay a fee or wait for a specified time period following their conviction.
Goodale cited fairness and consistency as reasons for this initiative.
He said that granting pardons becomes “…a matter of basic fairness when older laws from a previous era are changed.”
Under our current laws, Canadians applying for a pardon in relation to any criminal conviction, including cannabis-related offences, must pay a prescribed fee of $631.00. This can be cost-prohibitive to many people who may otherwise benefit from such a process.
Citizens seeking a pardon also have to wait a specific period of time after their sentence has completed, prior to being eligible. Depending on the offence committed, this time period can range anywhere between three and 10 years.
The current mandatory wait time to apply for a pardon in relation to pot possession in this country is at least three years; but this can vary, depending on the circumstances of the case – and it can be a long time to wait for someone who is relying on a pardon in order to carry on with their lives.
A criminal conviction of any type can severely limit social opportunities and advancement
A criminal record check that reveals a past drug conviction can make certain employment opportunities and career paths obsolete. It can limit educational pursuits and can erase volunteer jobs. A criminal record can preclude otherwise viable housing. It creates a sense of stigma and shame. It can go to the core of an individuals’ character and sense of self-worth.
But a criminal record is fairly common.
According to Campaign for Cannabis Advocacy, approximately 500,000 Canadians currently have convictions in relation to the simple possession of pot. This is a relatively large number of individuals who are ostensibly eager to have their records wiped clean. The news of pardons – free from monetary cost and wait times – must be music to their ears.
So why are some people saying that the Liberals are missing the mark?
The controversy lies in technical legal terminology; namely, the difference between a pardon and an expungement.
A pardon does little more than set aside a criminal conviction. In this way, it signalling to authorities that the person – although once convicted of a criminal offence – deserves another chance.
An expungement, on the other hand, effectively erases a past criminal conviction. It makes it as though the criminal act had never taken place in the first place.
Although they appear to serve the same practical purpose, pardons and expungements are therefore legally distinct.
Unlike an expungement, a pardon does not fully remove a past conviction or make it disappear. It does not signal that the person ought not to have been convicted of the offence in the first place or that they were morally inculpable.
Practically speaking, a person who has received a pardon, would still have to indicate that they had been convicted of a criminal offence in the past when completing job and housing applications. A person who has received an expungement would not.
Just last year, the Liberal government introduced a bill that would allow for the expungement of criminal records in relation to historical convictions against the LGBT2Q community. Bill C-66 will allow Canadians with criminal records in relation to consensual, adult same-sex activities to have their history expunged.
NDP MP Murray Rankin has proposed that the same process be adopted in relation to past cannabis offences. He has advanced a private members bill, seeking to have non-violent cannabis-related offences cleared by way of expungement, rather than pardon.
In defending their decision to go with pardons – rather than expungements – on this particular issue, the Liberal government has said that there is a distinction between LGBT2Q Canadians who were subjected to historical injustice and discrimination due to their sexual orientation and those who made the decision to illegally possess cannabis.
However, this interpretation of the issues at play may be too narrow due to the inherent bias against and the systematic discrimination of more visible minorities. Those people who are most likely to be convicted of a non-violent, drug-related offence are also most likely to be marginalized in terms of their financial status, race, gender, sexual orientation and ability.
They also tend to be the people who could most benefit from the expungement of a criminal record.
So while the legalization of cannabis and the Liberal’s subsequent announcement was a step in the right direction, this issue serves as a stark reminder that we still have many miles to walk on the long journey towards amnesty.