Canada Will Expedite Record Sealing for People Convicted of Marijuana Crimes That Are No Longer Crimes

Published in Reason.com on October 18, 2018

Now that marijuana is legal in Canada, the national government is confronting the question of how to deal with half a million citizens who were convicted of crimes that are no longer crimes. Yesterday Public Safety Minister Ralph Goodale announced plans to expedite the sealing of criminal records for people convicted of simple marijuana possession.

Under current law, Canadians who want to get their criminal records "suspended" have to wait five years for a summary offense (similar to a misdemeanor) or 10 years for an indictable offense (similar to a felony). They also have to pay $631 Canadian. The Liberal government is backing legislation that would waive the fee and the waiting period in marijuana cases involving possession of up to 30 grams (about an ounce), which is now legal for adults (defined as people 19 or older in most provinces, 18 or older in Quebec and Alberta).

The proposal does not cover people convicted of cultivation or distribution, and it puts the onus on marijuana offenders to apply for sealing instead of doing it automatically. Furthermore, sealing does not expunge the records, and marijuana offenders would still have to report their convictions on applications for housing or employment. The records also could still be seen by government officials for certain purposes, apparently including U.S. Customs and Border Protection (CBP) officers keen to prevent Canadian pot smokers from entering the United States.

"We don't recognize the Canadian amnesty," Todd Owen, the CBP's assistant commissioner of field operations, toldreporters in Canada yesterday. "If you've been the subject of a violation of U.S. laws, that will still make you inadmissible to our country." Speaking in Buffalo, Richard Roberts, CBP's assistant director of border security, echoed that position, saying Canadians with marijuana records "could still be found inadmissible." Although "the law has changed" in Canada, Roberts said, "this is business as usual for us."

The Canadian group Cannabis Amnesty wants the government to erase marijuana records so they cannot be used to continue punishing people for actions that are now legal. "Record suspensions or pardons are insufficient," the group's director, Annamaria Enenajor, said in a statement. "They do not erase a convicted offence; they merely set it aside. Without expungement, individuals convicted of possession remain vulnerable to having their convictions reinstated....The whole point of amnesty is to permanently eliminate, rather than merely suspend, the harms that stem from a previous cannabis conviction. Only expungement accomplishes this."

The New Democratic Party also favors expungement, which is the approach the government is taking with convictions related to homosexuality. The Expungement of Historically Unjust Convictions Act will erase records of "crimes" such as gross indecency, buggery and anal intercourse. Goodale, the public safety minister, says expungement should be limited to cases involving a "profound historical injustice," which to his mind does not include arresting harmless people and putting them in cages because of their proximity to dried vegetable matter, even when that policy disproportionately harms members of historically disadvantaged groups. In Canada as in the United States, black people are about as likely as white people to be cannabis consumers but much more likely to have criminal records as a result.

Despite the limitations, Canada's plan is more generous than the policies of most states that have legalized marijuana in this country. In California, which has gone the furthest to address the lingering consequences of marijuana convictions, the legalization initiative authorized expungement of misdemeanors and downgrading of felonies, but it put the burden on victims of pot prohibition to seek relief. A law enacted last month will make that process easier by requiring the California Department of Justice to identify marijuana convictions that are "potentially eligible" for expungement or reclassification and making the changes automatic unless prosecutors object. But in the other states that allow recreational use, relief is more limited, harder to get, or both. In Colorado and Vermont, for example, pot felonies cannot be sealed or downgraded, while in Maine and Alaska the only option for most marijuana offenders is a pardon from the governor.

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