Advocates call for the free, automatic, and permanent deletion of simple cannabis possession charges

Lawyers say simple pardons can be reversed and don’t go far enough to address lasting harms of prohibition-era convictions

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It has been eight months since the federal government legalized cannabis. Now, the House of Commons is in the midst of debating legislation to make reparations for charges advocates call "unconstitutional". 

On Wednesday (May 1), witnesses stood before a committee in the House of Commons to discuss concerns surrounding Bill C-93: proposed legislation that, if passed, would provide no-cost, expedited record suspensions for simple possession of cannabis.

Under the Cannabis Act, which came into force on October 17, 2018, it is legal to carry up to 30 grams of cannabis in Canada—a crime previously punishable with a jail sentence of up to six months and $1,000 fine. While the laws may have changed, advocates say anyone charged prior to legalization can still feel the lasting stigma and effects of the prohibition-era charges.

Annamaria Enenajor, a criminal defence lawyer, spoke to the committee on behalf of Cannabis Amnesty, a non-profit advocacy group. She believes the ripple effects caused by pre-legalization cannabis charges are still highly detrimental to those convicted and should be entirely expunged from criminal records.

The organization was founded in April 2018 and its members advocate on behalf of marginalized communities stigmatized and denied opportunities on the basis of cannabis-related offences.

Toronto criminal lawyer and campaign director for Cannabis Amnesty Annamaria Enenajor speaks to Bill C-415 in the House foyer in October last year.

“No Canadian should be burned for minor, non-violent acts that are no longer a crime,” she said to the committee in her opening statement. Cannabis Amnesty cites over 500,000 Canadians currently live with these types of charges, preventing them from pursuing professional, volunteer, and travel opportunities. Statistically, it is evident these charges disproportionately target marginalized communities.

“Despite its [cannabis] widespread consumption, a growing body of social science evidence has shown that not all Canadians face the same consequences for the same actions,” said Enenajor. “Black Canadians, Indigenous people of Canada, and low-income Canadians are more likely to be stopped, searched, arrested, incarcerated, for cannabis possession offences than white Canadians.”

“This is a historic injustice and a systemic Charter violation that cries out for redress,” she added, before offering a few observations on Bill C-93. Enenajor beleives the proposed legislation doesn’t go far enough to solve the issue and should be amended to ensure the process is entirely free, automatic, and results in the permanent deletion of a conviction. As it stands, the bill only offers a pardon.

Criminal defence lawyer Solomon Friedman, who also spoke to the committee today, later clarifyied the difference between a pardon and an expungement.

“A pardon is not a deletion, but rather a suspension,” he said, adding if an individual is caught by law enforcement in the company of a high risk offender or is even found in an area where a crime has taken place, the encounter alone can be enough for a judge to overturn a suspension. “But if the records are deleted [expunged], they can’t be brought back.”

If the government is not willing to fully erase the past conviction, Enenajor suggests they at least opt to incorporate select elements of expungement to address some of the glaring issues encountered with standard pardons.

For example, she suggested they offer an official document, similar to of a birth certificate, which could be presented during job interviews, at the border, or during criminal record checks, showing the charge has been federally suspended. 

Both Enenajor and Friedman also urged the committee to invest in a system of automatic deletion, as well. Even though the proposed process would theoretically be cost-free and expedited, if the bill passes, there is a massive number of Canadians expected to apply for pardons. Both lawyers suggested the federal government create an application that targets and erases records in digital databases to reduce backlog and barriers to access in the process. They argue an automated system would be beneficial to both Canadians and the administrative staff tasked with handling the paperwork.

One issue addressed at Monday’s (April 29) committee hearing was the government’s decentralized and, in some cases, archaic record-keeping system. Witnesses at the last meeting argued attempting to locate and destroy all evidence of a charge would be incredibly time consuming and difficult considering much of these documents are stored as hard copies at various institutions.

Enenajor took today’s hearing as an opportunity to respond to the concern.

“Just because we can’t do this for all records, doesn’t mean we can’t do it for some and, in most cases, the most important,” she said, suggesting the government start by targeting records kept on the Canadian Police Information Centre (CPIC)—a national database maintained by the RCMP. "If someone is arrested, convicted, and charged with a crime, the record exists in the CPIC database.”

She said in an era of artificial intelligence and predictive coding, an algorithm could be a cost effective and quick way to identify records and eliminate them from the CPIC database, thereby preventing pardoned charges from popping up on a standard criminal record check.

“Automatically removing all simple cannabis possession offenses from CPIC would go a long way to alleviate the impact of a conviction on the lives of Canadians, even though it would not constitute a full expungement,” she added.

Tom Stamatakis, president of the Canadian Police Association (CPA), also appeared as a witness on behalf of the country’s frontline and civilian law enforcement professionals today.

He stated that the CPA is “general supportive” of the bill’s framework.

“There isn’t, in my opinion, any good reason to deny people who have otherwise been law abiding members of society the chance to be given a clean record and the chance to participate in areas that might have otherwise been denied on the basis of a past mistake,” he said.

His concerns, however, touched on the proposed automatic nature of record suspensions. He argued an algorithm digitally deleting simple possession charges could allow repeat offenders slip through the cracks.

Stamatakis said, while there is no doubt the “overwhelming majority of applications” pose no threat to the public safety, “there will be some applications made by offenders where simple possession may have been a charge that was arrived at based on a plea agreement with the Crown down from a more serious charge.”

He notes, in those circumstances, a judge may have settled for the charge based on the assumption that the offence would remain a permanent record, and may not have agreed to a lesser charge if they knew it would be erased without review.

The proposed changes to the Criminal Records Act, specifically in section 4.1, outlined in the bill would effectively bar the Parole Board of Canada (PBC) from investigating an individual’s history. Stamatakis is concerned that the lack of oversight would allow a small group of habitual offenders to take advantage of the legislation.

Stamatakis urged the committee to amend the proposed legislation to ensure the PBC maintains some amount of discretion in the process of granting record suspensions.

As it stands, the bill also states any individual applying for a pardon must settle any outstanding fines and complete probation before any suspention can be granted. Both Enenajour and Friedman called for an amendment to remove this prerequisite, labelling it an unnecessary and unfair hurdle.

Last October, NDP leader Jagmeet Singh and MP Murray Rankin also announced a private member's bill tabled in the House of Commons, which goes a step further than Bill C-93, calling for the full expungement of possession charges.

Rankin's bill was defeated at its second reading today, 61 to 225.