Canada’s national criminal database can’t clearly break out people with a record for possession of marijuana from other drug possession offences, an RCMP spokesperson told Global News this week.
While police forces can enter the type of drug someone is charged with possessing into data which is sent to the RCMP, they don’t have to and often don’t, spokesperson Cpl. Annie Delisle wrote in an email.
So data maintained by the RCMP — but collated from police forces from across the country — can show whether someone has a record for possessing an illegal drug, but not necessarily which one.
In an interview in April, Prime Minister Justin Trudeau said, more or less directly, that the government was looking at an amnesty for Canadians with criminal records for possessing small amounts of pot, which would take effect in the summer of 2018 after recreational marijuana is legalized.
“We’ll take steps to look at what we can do for those folks who have criminal records for something that would no longer be criminal,” he said. “We will move forward in a thoughtful way on fixing past wrongs that happened because of this erroneous law that I didn’t put in place and that I’m working hard to fix.”
In the context of other comments, Trudeau seemed only to be referring to people convicted of possessing under 30 grams of marijuana. (The law assumes that amounts under 30 grams are for personal use, not trafficking.)
Someone found with a small amount of pot could be charged under one of two sections of the Controlled Drugs and Substances Act, one of which relates to marijuana specifically, and one of which is more generic.
But the issue with the RCMP’s criminal record data raises questions about how an amnesty would actually work. If records for pot possession can’t be easily found in a national database, how can they be easily deleted?
There may be no alternative to going through the data manually, case by case, and cross-referencing it to the original documents, says criminal defence lawyer Paul Lewin.
“It might require some further investigation. I don’t think it would be incredible in terms of the amount of work, but it would be more than pushing a button.”
“If someone had entered it and all you had was ‘possession,’ the information is in the charging document, the official record of what happened with the case.”
Once a marijuana possession record has vanished in Canada, it may still exist on the U.S. side of the border due to past information-sharing between the two countries, warns immigration lawyer Fadi Minawi.
“We see this quite a bit, especially when it comes to pardons,” he explains. “People have maybe never travelled to the U.S. in the interim. They go to the border and lo and behold, the officer has information predating their pardon. It was supposed to be pardoned, but there’s information in the system that that person still is inadmissible, if the conviction makes them inadmissible.”
Once data crosses the border, Canada permanently loses control over it, says immigration lawyer Guidy Mamann.
“Once the Americans have that information, they have that information. How is it going to be erased on the American side? You can erase it on the Canadian side, but that data has already been sent over.”