Pardons for past cannabis crimes have major limitations, and there's no simple fix

1 of 1 2 of 1

For $631, the Canadian government will suspend a citizen's prior conviction for a marijuana offence.

The only substantial conditions for such a records suspension (the process that's commonly referred to as a pardon) is that five years have passed since one's conviction for a summary offence (such as possession) and that 10 years have passed since the conviction of an indictable offence (like trafficking), and that one has remained out of trouble since then.

As long as those amounts of time have passed, and as long as one doesn't have any outstanding warrants or similar legal issues still hanging over them, the federal government is generally very good about clearing citizens' past records for cannabis crimes. If you've remained out of trouble, file the paperwork correctly, and pay the government's fee, it's very likely that Ottawa will suspend your record, several lawyers recently told the Straight.

Canada is scheduled to legalize recreational cannabis next month. While $631 for a criminal record cleaned of past cannabis crimes might sound like a good deal, it's a situation where the buyer should beware.

"A record suspension removes a person's criminal record from the Canadian Police Information Centre (CPIC) database," reads a government website. "This means that a search of CPIC will not show that the individual has a criminal record or a record suspension."

It continues: "A record suspension does not erase a convicted offence, but sets it aside," and "does not guarantee entry or visa privileges to another country".

In a telephone interview, Kirk Tousaw, a B.C. lawyer and expert on cannabis law, described the "practical value" of a records suspension as "really limited".

"The fact that you were arrested, the fact that you were charged with the offence—none of that stuff disappeared," he told the Straight.

Tousaw explained that most record checks—by prospective employers, for example—limit their quarries to the RCMP's CPIC database. That's the database from which a records suspension removes mentions of past cannabis offences for which one has received a pardon. So, in such instances, a records suspension will have the desired effect. Whoever ran the background check likely won't see anything about cannabis in one's record.

But, Tousaw continued, if anyone digs a little deeper, beyond a simple search of 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 removed, but records of charges, court appearances, and interactions with police for which charges were never recommended (an instance where an officer confiscated a joint, for example, and then released its previous owner without taking any further action), could all still show up, depending on the database accessed.

"It is going to take federal legislation to actually do something about this," Tousaw said

That's one reason he's paying attention to ongoing reform efforts like the Campaign for Cannabis Amnesty, which launched in Toronto last May.

"People should be advocating with their members of parliament for legislation that will wipe these offences out completely," Tousaw said.

During the past five years, there were more than 103,000 people charged with marijuana possession, according to Statistics Canada. It's a lot of people who might seek records suspensions and subsequently never receive the true pardon they desire.

Andrew Tanenbaum, director of Pardons Canada, cautioned it is the Canada-U.S. border where a Canadian records suspension's limitations are most likely to present themselves.

"If they [U.S. authorities] have already stopped you and denied you entry and then you get a pardon, they are not going to care," he noted. "They are going to say you need a U.S. waiver no matter what."

Tanenbaum explained that U.S. authorities simply do not recognize pardons granted by the Canadian government. And so, if they find any indication that in the past one was associated with cannabis, they will likely deny them entry to the United States.

"If the Americans see that you have a pot charge, even if it is from the 1970s, they will deny you entry," he said.

Robert Mulligan, a defence lawyer with the Victoria firm Mulligan Tam Pearson, argued what's needed is a political solution at the federal level.

"In an ideal world, there would be some form of blanket or general commutation or elimination or pardon or royal prerogative, that would cover all people to which the new policy that everyone's hopeful for applies," he told the Straight.

But even if that were to happen—something to which the Trudeau government has so-far refused to commit—there would still remain "administrative challenges", Mulligan added.

He explained that, again, depending on the database, an individual's record might only describe them as convicted of a narcotics offence. And so a blanket records suspension for past cannabis offences might not be as easy to apply through legislation as one might think. It could require government bureaucrats to sort through hundreds of thousands of individuals' paperwork as the only means of determining to which convictions that records suspensions for cannabis should apply.

And even then, Mulligan continued, it's unlikely that anything Canada does on records suspensions will ever result in information removed from any database maintained by the U.S. government.

"This should remind us all that the criminal law should always be used with care and restraint, and that there are collateral consequences," Mulligan said.

Discuss