Tens of thousands of Canadians could soon be eligible for a pot pardon, but lawyers warn about limitations

The Liberal government's announcement that it will expedite the processing of pardons for people with minor cannabis-related criminal recordsis welcome news to tens of thousands of Canadians who have been convicted of possession offences.

And while the Parole Board of Canada might soon be inundated with record suspension requests more than 500,000 Canadians have a criminal record for having pot on their person, according to a 2014 study advocates claim the Liberal plan might not go far enough to reverse decades of "historical injustice" from cannabis prohibition.

The number of Canadians convicted of simple pot possession offences each year has been on the decline since Prime Minister Justin Trudeau announced his plan to legalize and regulate the drug. His 2015 electionvictory all but assured a legal change and yet some 55,000 Canadians were arrested for cannabis-related offences in 2016 alone (of those 41,800 were for possession), according to Statistics Canada.

Even if one were to assume manyof those arrests do not ultimately result in convictions, thenumber of Canadians with a criminal past for possession of the drug one that is now legal is still a staggering figure.

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The Prime Minister spoke to reporters as he arrived for his weekly caucus meeting on Wednesday morning

Thus, the government's pledge to waive the steep fee for a record suspension (pardon) it normally costs $631 and do away with the standard waiting period (fiveyears for a summary offence, 10 years for an indictable offence) could be a truly life-changingmove for asizeableminority of Canadians.

"I think today's a historic day. Canada is doing something monumental,"AkwasiOwusu-Bempah, the director of research at Cannabis Amnesty, a not-for-profit that has fought for a solution forthose with criminal records for cannabis possession, said in an interview on Wednesday.

"It's fantastic to hear the government is recognizing the harms that have been done by criminalizing people," he said.

Public Safety Minister Ralph Goodalesaid the pardonswill"shed the burden and stigma" and break down barriers to jobs, education, housing or volunteer work.

A record suspension does not erase the fact someone committed a crime. Rather, it keeps the record separate from other criminal records in theCanadian Police Information Centre (CPIC) database.

Lack of a pardon timeline problematic

The government was light on details Wednesday affirming only that the process would be free, and waiting periodswould be eliminated while promisinglegislationwould soonbe introduced in the House of Commons.

Michael Spratt, a prominent criminal defence lawyer in Ottawa, said the pardon pledgeis a "step in the right direction" but the lack of a firm timeline is problematic.

"It's a bit charitable to call it a plan. There's no legislation before Parliament and there aren't many details,"Sprattsaid in an interview with CBCNews.

"A lot of things remain to be seen about how it's actually going to play outand, given the upcoming election, if it's going to play out at all."

A big question for Spratt is just how broad thegovernment will "castthe pardon net," and he questions whetherthe application process will be open to people convicted of other offencesor for people who have breached probation.

With a standard processing time of 6-12 months for a record suspension, people with a history of cannabis convictionsare still at least a year awayfrom having some form of record relief.

"A plan to deal with historic marijuanaoffences is something the government shouldn't have waited on. It's widely acknowledged the devastating harm that acriminalrecordcan have and soevery day we delay in correcting those injustices is a day too long," Sprattsaid.

When asked why a bill was not already drafted and ready for introduction Wednesday the legalization date has been known for months Goodale said the governmentdid not want to pursue such a regime until the 100-year-old prohibition of the drug was officially lifted.

Pardons have limitations

And despite the promise of having a record suppressed,criminal lawyers are warningthat a pot pardon has its limitations.

Firstly, it is not anexpungement, which is another, far more robust formof record relief for people who have been convicted of a crime.

An expungement goes one step further than a pardon, destroying all known government records ofthe offence.

When an expungement is ordered, the person convicted of the offence is deemed never to have been convicted of that offence in the first place. With a pardon, a person is still considered a past criminal and they would still have to check the "convicted of a criminal offence"box on an application for housing or employment.

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The government recently offered to expungecriminal records for LGBTQ people who were convicted of certain crimes that have now been deemed "historically unjust," with eligibilitylimited to three offences: gross indecency, buggery and anal intercourse.

Owusu-Bempah said a similar expungement should be extended to people with a cannabis possession criminal history in large part because those laws were oftenapplied disproportionatelyto Indigenous people and black Canadians.

"I think historical injustices come in to play [with cannabis] as it was done withcrimes of buggery. There were disparities across the country in the application of some of the law. Indigenous populations and black peoples have been saddled with the impact of a criminal record, the burden of a criminal record, when the drug has been widely used," Owusu-Bempah said.

A spokesperson for Goodale said while there is no doubt "certain communities have been disproportionately affected" by the way cannabis laws have been enforced,"expungement is an extraordinary measure intended to be used when the injustice is inherent in the law itself, as was the case with the prohibition of sexual activity between same-sex partners, rather than a matter of how the law is enforced."

Application process onerous for marginalized people

Sprattsaid many of the people who have been hit with possession-related charges in recent years even as police have slowed such activity are overwhelmingly marginalized groups like racial minorities, people with prior records or mental health issues, and the poor.

"I've definitely seen a decrease in white, middle class university students who are facing these charges," he said.

Spratt said many disadvantaged people will have trouble fulfilling the "onerous" process required to apply for a pardon, including obtaining court records, procuring digital fingerprints and generally fulfilling all the other requirements of the 10-step process.

"I don't think it would be unreasonable to just offer blanket expungementsfor those offences," Spratt said. "I'm worried the process ... might still have some disproportionate impacts on some of the very people you want to help."

Spratt also notedthe government said Wednesday a person has to completetheir criminal sentence before applying for a pardon, which includes paying all fines and victim fine surcharges that might be associated with a conviction.

"A $500 fine might be something that a more affluent person can easily pay but if you're living in poverty, and your drug record is preventing you from moving ahead in a pro-social way, it might be difficult to pay off those fine orders before the pardon is available," he said.

Moreover,even if one is successful in securing a pardon, it does not mean it will make it easier to cross the Canada-U.S. border.

No guarantees at U.S. border

The U.S. Custom and Border Protection agency was clear Wednesday: the U.S. recognizes foreign convictions for something that would be a crime in their country, and it does not recognize foreign pardons.

Speaking in Buffalo, Richard Roberts, the CBP assistant director of border security, said Canadian pardons or "amnesty"are simply not considered under U.S. border admissibility law.

Watch as Public SafetyMinister warns Canadians who use cannabis about issues at the U.S. border:

Goodale warns Canadians heading to U.S.

6 years ago

Duration 1:36

Public Safety Minister Ralph Goodale warns Canadians who use pot that crossing into the United States isn't a guarantee just because it's now legal in Canada.

"They could still be found inadmissible," he said. "Yes the law has changed [in Canada] but really, at the border, this is business as usual for us."

But Goodale's office noted, in the case of the U.S. border, there might actually be an upside to government offering pardons rather than expungements forcannabis offences.

"If the United States has a record of your expunged conviction and denies you entry, there will be no records to retrieve while seeking a waiver to enter the U.S.," a spokesperson said.