As cannabis business takes off in Canada, many are frustrated by the new amnesty law which leaves thousands with the stigma of criminal records. Here people look at products inside Spiritleaf, the first cannabis store in Kingston, Ont., on April 1, 2019. THE CANADIAN PRESS/Lars Hagberg

Canada’s new lacklustre law for cannabis amnesty

Parliament moved quickly last week to pass cannabis amnesty legislation before the federal government adjourned for the summer.

Bill C-93, one of many last-minute-laws, received royal assent on June 21. The bill outlines a “no-cost and expedited record suspension” process for people with convictions for simple possession of cannabis.

While some see the new process as a step in the right direction, many lawyers, researchers, practitioners and politicians who advocated for free and automatic expungement are left feeling frustrated.

Upwards of 500,000 people across Canada continue to live with criminal records and the associated stigma, due to convictions for minor possession. Unfortunately, the process for amnesty outlined in Bill C-93 will provide limited protection to approximately only 10,000 people.

Cannabis buds lay along a drying rack at in Fenwick, Ont. THE CANADIAN PRESS/ Tijana Martin

My research on the collateral consequences of punishment in Canada, as well as my frontline and advocacy work with the criminal justice non-profit sector, has highlighted for me the multiple obstacles that people with criminal records face in their communities long after they have served their formal sentence. My work also demonstrates that the current record suspension system is not enough to provide relief from this ongoing punishment.

Disproportionate impacts for Black and Indigenous peoples

Minister of Public Safety Ralph Goodale introduced Bill C-93 in March 2019, three months after legalization. The director for the Campaign for Cannabis Amnesty, Annamaria Enenajor, told the Globe and Mail she thought Goodale’s efforts were “woefully deficient.” She joined others, including NDP MP Murray Rankin, who agreed that Bill C-93 offers insufficient reparation.

Under cannabis laws in Canada, Black and Indigenous peoples were disproportionately criminalized, and as a result now experience “reduced educational and employment opportunities, poorer housing prospects and travel restrictions.”

Many believe this historical disproportionate and racist application of the cannabis laws were not taken into consideration when the government drafted its new legislation. Government representatives said the past application of laws may have been “bad policy but it did not violate the Charter.”

This stance leaves us with fundamentally flawed legislation.

Suspensions are exclusive

Goodale claims that record suspensions (formerly known as pardons) are enough to relieve people of the stigma associated with a criminal record. He, along with officials from the Ministry of Public Safety, insists that a streamlined and simplified record suspension application process will make it easy for people to have their records sealed. However, a recent parliamentary committee study has shown that the record suspension application process is quite burdensome.

Record suspensions are ordered by the Parole Board of Canada who assesses applications based on guidelines in the Criminal Records Act. The process of applying for a record suspension involves several steps including the collection of documents from the RCMP, courts and local police services.

While C-93 eliminates the wait time before eligibility and the $631 fee that is usually required, the process remains onerous. The cost of collecting the required documents (which could add up to a few hundred dollars) will be enough to keep the poorest and most marginalized people from applying. Additionally, those living in remote communities might not have access to the support required to apply for a record suspension. Therefore, they could be excluded from the process.

In Jan. 2016, Ralph Goodale promised to reform the Criminal Records Act in response to what he called punitive changes made under the Harper government. This call for reforms was followed up by public consultations and a parliamentary study. But we have yet to see movement on this promise. Without this overhaul to the Criminal Records Act, Canadians are left with a system that has been deemed unconstitutional in two provinces.

A bare minimum law

During an interview with Vice last year, Prime Minister Justin Trudeau disclosed to Canadians that his younger brother was once charged with possession of cannabis. Unlike thousands of other Canadians who had to live with the consequences of this charge, Michel Trudeau had access to top-tier lawyers to make the charge go away.

This story indicates the importance of a cannabis amnesty that can be applied equally. Unfortunately, as independent Senator Colin Deacon puts it, C-93 is only “a very small, low-risk move forward.”

Customers shop for cannabis on the first morning of opening at Toronto’s ‘The Hunny Pot,’ one of the retail stores licensed to sell cannabis in Ontario, on April 1, 2019. THE CANADIAN PRESS/Chris Young.

Throughout the debate on C-93, in both the House of Commons and the Senate, several critiques of the bill were presented to the government. Parliamentarians expressed concern for the bureaucracy created by C-93 and shared desire for an automatic process. These critiques were countered by the government who claim that deleting records involves “more than a simple click of a button” due to Canada’s complicated record-keeping practices.

NDP critic for Public Safety, Matthew Dubé, summarized C-93: “the absolute bare minimum was done for what should have been part of a flagship piece of this government’s agenda.”

While some remain optimistic about this better-than-nothing approach that can be fixed later, many are left feeling deflated and concerned for those who continue to live with the burden of a criminal record for something that is now legal.

Those who advocated for free and automatic expungement must continue to do so as we prepare for a federal election in the fall. Canadians deserve better than a bare minimum approach to cannabis amnesty.