Federal legislation for cannabis-possession pardon not enough, critics say

Long-awaited legislation that makes getting a pardon for simple possession of cannabis cheaper and quicker made it to the House of Commons Friday, but critics say it won’t be enough to right decades of problems caused by cannabis criminalization.

Public Safety Minister Ralph Goodale said his new bill would waive the $631 application fee and remove the usual five-year waiting period after a conviction before an application will be accepted.

A successful application seals a criminal record away, as long as the person convicted isn’t charged with any other criminal offences.

Goodale said that this new bill is “undertaking a fundamental transformation from a prohibition system that has had consequences in Canada for more than a century,” and will allow people who’ve been convicted of simple possession to “participate in a wholesome way in their communities.”

“That’s nice and generous but it doesn’t go far enough, as far as I’m concerned,” said Akwasi Owusu-Bempah, a University of Toronto sociologist who specializes in crime, policing and race. “Pardons are not enough to try to repair the harms.”

Statistics linking criminal charges and race aren’t routinely gathered in Canada, but separate reports by the Toronto Star in 2017 and Vice News in 2018 found that in several cities where figures were available, black and Indigenous Canadians were much more likely than white people to be charged with cannabis possession it was legalized last year. Separate data on drug use indicates that rates of cannabis use differ little among those groups.

Owusu-Bempah said completely expunging cannabis-possession records, which means destroying them entirely, is the only way for the government to recognize the “profound historical injustices that have stemmed from the war on drugs and cannabis prohibition in particular, especially how those have affected both marginalized and racialized populations.”

Owusu-Bempah said that struggles with finding housing and employment are among the problems those who have been convicted of drug possession grapple with.

It’s a view that’s shared by Toronto lawyer Annamaria Enenajor, who has made expunging cannabis-possession records a cause.

“I think this government has an obligation to write the historical wrongs of decades of cannabis prohibition, particularly because the laws were unequally enforced and were primarily against vulnerable and marginalized communities including Indigenous communities and communities of colour,” said Enenajor.

Enenajor said that while a pardon, or record suspension, does remove the charge from the National Repository of Criminal Records, a pardoned offence can still be reinstated by the national parole board if the board deems an individual is “no longer of good conduct.”

She said a pardon regime doesn’t consider the “sheer amount of people that have been impacted by these offences” or the resources that have been used in prosecuting them over the years. She said the proposed system will continue to take up money and time as applications are processed one by one, something that could be avoided with an automatic mass expungement.

Goodale said expunging criminal records is only an option when a law “violates human rights and should never had existed in the first place.” He offered the criminalization of homosexuality as an example.

“With respect to cannabis, the law itself was completely valid and constitutional but some people, especially vulnerable and marginalized communities, were impacted disproportionately and unfairly,” said Goodale.

Another reason the government offered for using pardons instead of mass expungements is that records of previous convictions will sometimes have been shared outside Canada, such as with U.S. border guards. A pardon can likewise be shared and will work to the former offender’s benefit; if a record is expunged in Canada, the other jurisdiction’s files won’t necessarily reflect that.

Officials said in a background briefing that they don’t know exactly how many people have been convicted of cannabis possession in Canada, but they expect the number of people who will benefit from the streamlined process could be “in the thousands.”

Until the Cannabis Act came into effect last October, simple possession of the drug was punishable by a fine up to $1,000 and six months in jail.

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