Canada's cannabis advocates turn to pardons as the new front in the struggle for equitable drug policy

Lawyer Annamaria Enenajor heads a national campaign to expunge the criminal records of Canadians convicted of possessing up to 30 grams of weed

    1 of 5 2 of 5

      With cannabis legalized, Canada’s conversation around drug-policy reform has turned to pardons.

      “That’s something that we’ll be looking into as we move forward,” Justin Trudeau told the Georgia Straight in August 2015, when he was still a candidate for prime minister. “There has been many situations over history when laws come in that overturn previous convictions and there will be a process for that that we will set up in a responsible way.”

      Three years later, the Liberals have fulfilled their promise to end prohibition of the plant. On legalization day, October 17, Public Safety Minister Ralph Goodale announced that attention would now shift to helping people burdened by past crimes of cannabis possession to shed those criminal records.

      Samantha McAleese remembers the last time that pardons were in the news. She was employed as a social worker, helping people coming out of prison to get back on their feet. It was 2012, and Stephen Harper’s then–Conservative government had just increased fees and wait times for those applying for pardons.

      In addition, McAleese—who is now at Carleton University working on a PhD that focuses on pardons and criminal-justice reform—told the Straight, there was a third change, one that sounded innocuous but had a significant effect: what was previously called a “pardon” in Canada was renamed a “records suspension”.

      “People would tell me, ‘The judge didn’t give me a life sentence but I feel like I have one now,’ ” McAleese recounted in a telephone interview. “It took the hope out of people’s lives.”

      “The language change alone was enough to deflate people,” she explained. “The idea of once being able to apply for a pardon left people optimistic and gave people a greater sense of hope that once their sentence was complete, they could move on with their lives.”

      Goodale’s October 17 announcement emphasized that there was still much to work out through the legislative process. But right off the bat, he said that Canadians seeking pardons for the possession of cannabis for personal use would no longer have to pay an application fee of $631 and would not have to wait the previously required five years after a completed sentence before they could apply for a pardon. The news was immediately met with simultaneous cheers and heavy criticism.

      McAleese said she’s in a holding pattern. “I’m still waiting to see what they are going to come up with, but in this case I’m not sure that allowing people to apply for pardons is good enough,” she added. “Considering that the records that they are looking to pardon are no longer crimes anymore, I think that expungements are more appropriate.”

      Every advocate for cannabis reform the Straight has spoken with since legalization has, similarly, said they favour records expungements over suspensions (which are still commonly referred to as pardons).

      Sarah Leamon, a Vancouver-based criminal defence lawyer, recently explained the difference concisely in a column for the Straight: “A pardon does little more than set aside a criminal conviction. In this way, it signals to authorities that the person—although once convicted of a criminal offence—deserves another chance,” Leamon wrote. “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.”

      Leamon continued: “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.”

      Although it all sounds bureaucratic and perhaps even inconsequential, cannabis advocates—who have definitely not retired from activism despite the drug becoming legal—describe this battle for reforms of the country’s pardons system as the new and now most pressing front in their ongoing struggle for a drug-policy regime that is just.

      During the past five years alone, there were more than 103,000 people charged with marijuana possession, according to Statistics Canada. The Campaign for Cannabis Amnesty estimates that more than half a million Canadians are burdened by criminal records that—with the enactment of the Cannabis Act on October 17—are no longer crimes. The route that Canada decides to go with reforms of its systems for criminal pardons is going to affect a lot of citizens.

      Samantha McAleese recalls the policies of the Harper era.
      Philippe Dorman

      In a telephone interview, Kirk Tousaw, a B.C. lawyer and expert on cannabis law, noted that most record checks—by prospective employers, for example—limit their queries to the RCMP’s Canadian Police Information Centre (CPIC) database. That’s the database from which a records suspension removes mentions of past offences for which one has received a pardon. In such instances, a records suspension will have the desired effect. Whoever runs the background check likely won’t see anything on someone who has received a pardon for past crimes.

      But, Tousaw continued, if anyone digs deeper, beyond the CPIC database, there could still be plenty that a prospective employer or a United States border agent might find. Records of a conviction might have been removed, but records of charges, court appearances, and interactions with police could all still show up, depending on the database accessed.

      “In Canada, the actual value of a records suspension is limited,” Tousaw said. “And the Americans are going to do what they are going to do.”

      For Canadians who receive pardons, how they should respond to what the Americans do at the border will likely come to depend on each independent border officer.

      “For example, Tousaw said, “if they ask you if you have a criminal record, and if it has been pardoned or suspended, the answer is, ‘No’; you don’t have a criminal record because that has been blacked out.

      “But, if they ask you if you’ve ever been convicted of a crime or charged with a crime—which is probably the next question, if it wasn’t the first question you were asked—you still have to answer, ‘Yes.’ But if you have an expungement, then you can truthfully answer, ‘No,’ because you are deemed to have not been charged with that offence.”

      Annamaria Enenajor is director of the Campaign for Cannabis Amnesty and a defence lawyer based in Toronto. She similarly told the Straight that if the Liberal government sticks with its decision to go with pardons over records expungements, Canadians who have received a pardon are going to have to listen to U.S. border officers’ questions very carefully.

      “Sometimes the question is simply: ‘Have you ever been convicted of an offence?’ And if you have a pardon, then you have to say, ‘Yes, but I’ve been pardoned,’ ” Enenajor said. “But if it’s a records expungement, then another aspect of this is the ‘deeming provision’....What a deeming provision does, which is a term of law, is that it deems the conviction never to have happened. That gives the person the right to truthfully answer that question: ‘No, I have never been convicted.’ ”

      Then why has the Liberal government selected pardons for past cannabis offences instead of records expungements?

      Although advocates for reform might hope the government is looking at pardons as a matter of correcting injustice, Enenajor suggested that the Liberals are likely making decisions based on bureaucratic considerations.

      “The record-keeping process around Canada is a complete mess,” she began. “There are records that are kept in courts, in police departments, in government office buildings, on computers, on papers, in boxes, and in filing cabinets. If you say: ‘I want all of my records with respect to this particular offence deleted,’ that is going to be much more difficult for the government because they simply cannot find all of those records.

      “So it’s not surprising that the government would look at this and say, ‘This is going to cost way too much money. We don’t know where these records are. We’re going to be chasing them all over the country,’ ” Enenajor continued. “There are so many tentacles of this beast and it is so disorganized that it is hard to figure out how to do it properly. I suspect the government is quite cognizant of that. And so, while their messaging says, ‘Pardons are sufficient’, I suspect that the amount of work that would be something that the government does not have the appetite to take on.”

      But Enenajor argued that the Canadian government should take this on, regardless of the greater resources that expungements for cannabis convictions would require. “As a show of good faith to the people who had to suffer through this for decades,” she said.

      Enenajor and the Campaign for Cannabis Amnesty are calling for Ottawa to adopt an alternative plan. On October 4, Murray Rankin, NDP MP for Victoria and the party’s justice critic, tabled Bill C-415, the Expungement of Certain Cannabis-related Convictions Act.

      In a telephone interview, Rankin maintained that expungements are required to correct past injustices of racial discrimination and to undo the consequences of unequal police enforcement that has unfairly targeted people of lower incomes.

      “The government acknowledges that the impact of this [prohibition] was disproportionate on black and Indigenous people and young people,” he told the Straight. (Investigative reports by Vice and other outlets support Rankin’s assertions, showing that Indigenous people and people of colour were significantly more likely than white people to be charged with a cannabis-possession offence in most cities across Canada.) “We’re not talking just about the American border. We’re talking about the kid who can’t get an apartment or a job,” Rankin said.

      The Ministry of Public Safety maintains that pardons will prove superior to expungements.

      “A pardon is a faster process than expungement,” Scott Bardsley, a spokesperson for Goodale’s office, told the Straight by phone. “There is no question that certain communities have been disproportionately affected by the way cannabis laws have been applied, and we are addressing that by providing free, immediate access to pardons.”

      Bardsley warned that expungements might have unintended negative consequences.

      “Since pardons set aside records rather than destroying them, individuals who receive a pardon may be able to produce documentation in cases where they need to prove that they have obtained a pardon,” he explained. “That is especially important for travel. 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.”

      Rankin acknowledged that expungements could still be a problem at international borders, but he argued that expungements would still go much further than pardons toward correcting past wrongs.

      “Tell me why you still shouldn’t do the right thing for those people [of colour] who I’ve mentioned domestically?” he asked. “I’m not going to not do the right thing for inner-city black people and Indigenous people because it might not do the trick with respect to the United States.”

      Rankin and everyone interviewed for this article cautioned that the United States and other jurisdictions that have access to data about Canadians—Britain, New Zealand, and Australia, for example—are unlikely to recognize pardons or expungements that the Canadian government issues for crimes that remain illegal in their respective jurisdictions.

      Kirk Tousaw says clearing convictions requires political effort.

      Tousaw suggested that correcting this problem for Canadians convicted of cannabis possession will require a political effort and will be a complicated exercise in international relations.

      “Then the ultimate solution is for marijuana to become legalized across the world,” he said. “Then this finally becomes a nonissue.” Tousaw suggested it is the global fight for drug-policy reform that Canada’s cannabis activists will turn to next.