How far should Canada go to erase cannabis convictions?
Canadians have been inundated with cannabis details this week: what to do if your cat eats it, how it will affect your teeth and your risk of a stroke, why you shouldn’t be so cavalier in telling border officials about your consumption habits.
But not everyone shares the glee of the man who made Canada’s first legal purchase of marijuana — and plans to have it framed.
An estimated half a million Canadians have past pot convictions and they’re waiting for more clarity around the federal government’s plans to pardon them. And while many have applauded that first step, announced Oct. 17, they’ve also questioned why the government opted for a pardon rather than a record expungement.
While an expungement legally removes a past conviction, a pardon — or record suspension — is a bit more complicated. It separates your criminal record from other records and is meant to make it easier to find work and integrate back into society. However, while a pardon removes the information from the Canadian Police Information Centre database, it only legally applies to federal organizations and can, under certain conditions, be revoked.
Akwasi Owusu-Bempah, assistant professor of sociology at the University of Toronto, explains it this way:
“The pardon is an indication from the government that it forgives you for having done something wrong whereas an expungement is the government acknowledging it was wrong to criminalize an activity or a behaviour in the first place.”
For the government to pick a pardon over an expungement does nothing to address the harms that marginalized communities, particularly black communities, have experienced from cannabis legislation, says Robyn Maynard, author of Policing Black Lives.
“There really has been a criminal neglect of the fact that this legislation should have been about righting the wrongs of racial injustice.”
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While research has shown people of different races tend to use drugs in similar amounts, statistics compiled by VICE of arrests between 2015 and the first half of 2017 show the likelihood of arrest differs substantially. They found, “Indigenous people in Regina were nearly nine times more likely to get arrested for cannabis possession than white people during that time period. Meanwhile, black people in Halifax were more than five times more likely to get arrested for possessing weed than white people.”
In short, says Stephanie DiGiuseppe, “it was prosecuted in a really inequitable way.”
To address that unfairness requires acknowledging it was unfair, says DiGiuseppe, a criminal and constitutional lawyer, as well as director at the Campaign for Cannabis Amnesty.
Early indications from the Liberal government are that it doesn’t see possession convictions as an injustice issue. In announcing plans to reduce red tape for pardons, Public Safety Minister Ralph Goodale said the government favoured a pardon rather than expunging people’s records as it did in Bill C-66, which allowed the criminal records of consensual sexual activity between same-sex partners over the age of consent to be destroyed.
That, Goodale said, was a “historic social injustice,” whereas those convicted for illegally possessing cannabis were caught up in laws that “we believe are out of step with current mores … but are not of the same nature.”
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However, that announcement “basically implies that there was no unfairness in the way cannabis was criminalized,” DiGiuseppe says, and “we think that’s just not accurate.”
It’s also concerning, Maynard says, when you look at the millions being poured into policing legal pot. The conversation is being framed as decriminalization, she noted, when really there’s this “ramping up of those powers of racialized surveillance.”
“We really need to remember that this is a life or death issue for some communities and addressing this broader racial injustice of drug legislation needs to be a priority.”
Pardons won’t do it, says Akwasi Owusu-Bempah.
On a practical note, he says, officials can still access a person’s record, so “Even if it’s not supposed to factor into decision making, its likely to do so.”
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That’s if the person is even able to access the pardon system, says DiGiuseppe.
Although the government says it will waive the $631 application fee and the three- to 10-year wait time after a sentence, she says there are still plenty of barriers starting with the fact that people will have to apply.
“That just means that a lot of people who have these convictions probably will never get pardoned because they won’t apply,” she says.
DiGiuseppe expects they’ll hold back for a whole host of reasons: language, computer literacy, legal knowledge, rural locations, and more.
Those barriers are a key part of why Owusu-Bempah favours expungement.
“The onus should be on the government to get rid of these records, not on the individuals that were criminalized.”
Cities like San Francisco and San Diego already provide a path forward, he says. Prosecutors in the two California cities are taking steps to erase thousands of marijuana convictions en mass, a step that San Francisco District Attorney George Gascon believes would help minorities in particular.
“We want to address the wrongs that were caused by the failure of the war on drugs for many years in this country and begin to fix the harm that was done not only to the entire nation but specifically to the communities of colour,” Gascon said earlier this year.
Code for America is using its own algorithm to help clear hundreds of thousands of old convictions.
“That’s an example of the government or local government taking the initiative,” Owusu-Bempah says, urging the Liberals to “do the right thing.”
— with files from the Associated Press
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