Pardons for marijuana possession promised by federal public safety minister Ralph Goodale would suspend old convictions but not erase them forever, an expert warns.
And that makes them vulnerable to being reversed by a future government, he says.
On Friday, Goodale said the Liberals are planning to offer people with records for simple possession of marijuana a version of the pardon process available to any offender, with two differences.
First, the process would be free, instead of costing $631. Also, it could be applied for immediately. An offender can normally only ask to be pardoned at least five years after any sentence has ended (or 10 years for serious crimes).
The bill was scheduled to be introduced in the Commons on Friday.
The only people who will be eligible are those with a record only for simple possession, and nothing else.
A pardon, or “record suspension” sets the offence aside, but doesn’t erase it. The pardon can be reversed if the person is convicted of new crimes or is “found to no longer be of good conduct.”
“I think it’s a step in the right direction, but unfortunately does not go far enough.,” says University of Toronto professor Akwasi Owusu-Bempah.
“The practical consequence is that they still could be accessed by some levels of government or law enforcement agencies. They may appear in court. And most importantly, they could be reversed. The most practical thing is that it’s still there.”
Last October, NDP MP Murray Rankin introduced a private member’s bill that would “expunge,” or completely erase, old possession convictions.
That process would be similar to the one the government followed with historic same-sex offences, where people can apply to have a record permanently erased if the acts were consensual. Owusu-Bempah favours this approach.
“Expungement is the government acknowledging that a behaviour never should have been criminalized in the first place. Whereas a pardon or record suspension is forgiving someone for having done something wrong.”
Most importantly, Owusu-Bempah says, expungement protects people against a future government that might want to reverse the amnesty.
“If another government were to come in and decide that the record suspension never should have been implemented in the first place, and that cannabis legalization should not have come about, that could also be reversed.”
Destroying the records makes that impossible, much as the destruction of the long gun registry in 2012 made it difficult for a new government to reconstruct it.
In a comment sent Friday evening, a spokesperson in Goodale’s office called the concern “alarmist and uninformed.”
“Attempts to revoke (the record suspensions) would be met by vigorous court challenges that would almost certainly succeed,” Scott Bardsley wrote in an e-mail.
Goodale explained last October that the government saw same-sex convictions as a “fundamental injustice” in a way that marijuana possession convictions weren’t.
“The laws with respect to cannabis that have existed historically we believe are out of step with current mores and views in Canada but are not of the same nature as the historic social injustice that was imposed in relation to the LGBTQ2 community,” he said.
“The difference here is the nature of the offence.”
Conservative public safety critic Pierre Paul-Hus’s office said they would comment after the text of the bill had been published.
It’s not clear how many Canadians have a record for possession of marijuana, since some were convicted under a generic drug charge that doesn’t specify the drug involved. However, advocates claim about half a million people are affected.
However, if officials have to individually investigate each case to see if it involved marijuana or some other drug, it would greatly complicate the process. San Francisco recently deleted over 8,000 marijuana convictions going back to 1975.
Until October of last year, marijuana possession was punishable with a fine of up to $1,000 and six months in jail.