Will the Prime Minister’s pot pardon plans have a snowball effect?

Published in the Growth Op on November 16, 2018

Prime Minister Justin Trudeau’s proposal to pardon minor cannabis possession convictions might be a step in the right direction, but a number of advocates and experts say it simply doesn’t go far enough.

“Why aren’t we passing laws to wipe those records, instead of just giving people these pardons?” asks John Conroy, an attorney who received Lift & Co.’s Canadian Cannabis Crusader award in 2014. Conroy says it will take more than pardons to dull prohibition’s sting on the 500,000-plus Canadians living with criminal records for minor possession charges alone—they need amnesty.

A pardon means being forgiven, not forgotten

Amnesty, Conroy explains, isn’t what Canadians could get if the planned pardons move forward: For possession charges under 30 g, the proposed pardons would separate the record of the offence from a person’s general record—one a potential employer might request—that would only be made available under certain circumstances and revoked if officials feel that it’s warranted.

A pardon could be withdrawn if a different conviction is entered at a later date, potentially rendering the initial pardon useless. It wouldn’t erase the record and completely remove it from the possibility of future issues, thereby denying those charged the clean slate they’ve long waited for. Additionally, any amendment to the Criminal Records Act by the current or a future government could lead to existing pardons being revoked.

Add to this that those seeking a pardon would need to apply.

While the federal public safety minister has said the idea would be to make the application, in general, both free and free of waiting periods, there has been no further elaboration as to what the application process will entail.

Do Canadians need more?

Conroy says he feels those convicted of any cannabis charge should have the right to exoneration. “I think anyone with any sort of cannabis offence in their past that is more than five years old should have that record expunged, or be automatically or deemed by legislation to be pardoned,” he comments.

“No one should have to apply for a pardon. Especially if under 30 g, it should be automatic,” he adds.

Annamaria Enenajor, founder and director of Cannabis Amnesty, has been pushing for expungement herself. Since cannabis is recreationally legal today, Enenajor has said it doesn’t make sense for Canadians who’ve been charged or served their time for once-offences to receive ‘forgiveness’ (the pardon) over expungement—a federal acknowledgment that the offence itself never should have been classified as such.

“I wouldn’t call it true amnesty as it stands now,” she comments. “What we’re seeing now is that the records will still be retained.”

While amnesty is legally identified as having been granted a pardon for a former criminal charge, advocates like Enenajor and Conroy are pushing for a broader definition. “A pardon just isn’t good enough,” Conroy elaborates. “We need something permanent, that’s not partial to someone’s opinion.”

Conroy describes parties such as illicit retailers, traffickers and others outside the pardon’s scope as needing the same treatment.

Enenajor is not waving the flag for across-the-board amnesty, however. Despite the namesake, Cannabis Amnesty is only pressing the government for removal of those minor charges. Personally, she says she doesn’t see how it could work any other way.

“Philosophically you could put them all in the same category as a simple possession conviction, but you can’t pardon for what’s still an offence,” Enenajor explains. “There are no floodgates to open,” she comments.

Public Safety Canada has drawn a hard line on expungement as well. “Expungement is intended for cases that would be contrary to the Charter of Rights and Freedoms,” says Scott Bardsley, senior communications advisor for the Office of the Minister of Public Safety and Emergency Preparedness, drawing reference to laws that once purveyed discrimination based on sexual orientation. “Historical laws prohibiting possession of cannabis were consistent with the Charter of Rights.”

Closing the doors on heavier convictions

Enenajor also practises criminal defence, regulatory and constitutional law with an increasing focus on cannabis. She says it doesn’t look good for those on the other side of the pardonable charges, particularly in the case of prospective cannabis retailers.

“People do approach me about pardons, and about possession for the purpose of trafficking. But if they have a previous cannabis trafficking offence, they’ll likely be turned down,” Enenajor points out.

Conroy says he thinks it’s better to allow those living with some of the heavier charges to participate in the legal cannabis market.

“If you want to get rid of the black market, you don’t exclude these people,” he asserts. “You let them in.”

Especially for those who have since served their sentences, it’s better to expose them to regulation than to hold the past over their heads, Conroy argues. “You say, ‘we’re going to track you from seed-to-sale. And if you screw up, we’ll come and inspect you and we’ll pull your licence and shut you down if you’re not complying’,” he notes.

While illicit dispensaries should look into entering the market legally, Conroy notes, those ineligible for pardons will stay open and risk raid or shutdown in the interest of their clientele. “Medical dispensaries like the B.C. Compassion Club Society are limited to serving medically approved patients, and they’re staying open to protect public health,” he says.

Neev Tapiero, owner of Toronto dispensary Cannabis as Living Medicine (CALM), is at a loss as to how legislators can make amends. “It’s a first step, but I don’t know how you undo 95 years of prohibition,” Tapiero laments.

Possession is just one facet of restitution, she says, suggesting that legislators look at possession for the purpose of trafficking and personal cultivation as pardonable offences, too. “It’s definitely baby steps right now, but there’s much more to be done.”


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