Fewer than 400 people pardoned under new system for erasing old weed convictions

Criminalization was government 'cash cow': Lawyer Lawyer Caryma Sa'd says cannabis criminalization was a 'cash cow' for Ottawa and some of those resources should be used to provide pardons.

TORONTO — About 20 months after the federal government unveiled a program aimed at erasing Canadians’ prohibition-era records for cannabis possession, fewer than 400 people have successfully been pardoned, the Parole Board of Canada said.

As of March 1, officials have granted 395 record suspensions, or pardons, under the program, or more or less one per working day since it started on August 1, 2019. Another 251 have been rejected “due to ineligibility or incompleteness,” the Parole Board of Canada said.

Canadians with criminal records, including those related to cannabis, have always been able to ask for pardons if they were eligible (generally, the less serious the crime, the sooner you can ask to be pardoned). The process costs $644 to apply.

The process for cannabis – which only applied to possession, not offences like trafficking – doesn’t involve a waiting period, and is free.

Toronto cannabis lawyer Paul Lewin argues that part of the reason for the small numbers coming forward is simply that the program doesn’t cover as many Canadians as was originally thought.

“I just didn’t think it applied to that many people, to be honest,” Lewin told CTVNews.ca in an interview.

It’s never been clear how many Canadians have prohibition-era records for cannabis possession (or, as a practical matter, how many of those people are still alive). One reason is that many cannabis possession offences were prosecuted under a generic drug possession charge, and finding out whether the conviction related to cannabis or, for example, cocaine or MDMA, means looking at the original files.

When the program was being debated in Parliament, a figure of 250,000 was cited, but that strikes Lewin as far too high.

“I don’t believe that number,” he said. “I’ve seen that number before, but I don’t know if there’s that much of a basis for it.”

“As someone who has practised in this field, I find that number hard to believe.”

Starting at about the turn of the century, he said, police started laying fewer cannabis possession charges, and prosecutors started giving them a very low priority. It might come up in cases where someone accused of a more serious cannabis offence like trafficking or cultivation succeeded in a plea deal to a lesser charge, he said.

For this reason, most possession convictions on people’s records will have been from the ‘90s, ‘80s or before, he said.

As well, nothing – other than the fee and the waiting period - stopped people from asking to be pardoned for possession offences before legalization: in 2017-18, 935 people were pardoned for breaking the Controlled Drugs and Substances Act, the law that people possessing cannabis (and other illegal drugs) since the mid-1990s would have been breaking.

Another 1,040 were pardoned for breaking the Narcotic Control Act, an older version of the same law.

As well, Toronto lawyer Caryma Sa'd said the process is very bureaucratic – applicants may have to track down the original court files, which could be in a different part of the country, for example.

“Even though the government has waived certain application fees and is fast-tracking these requests, it’s still a very intensive process, requiring a fair bit of form-filling, tracking down information. There’s a requirement for fingerprinting - all of that takes time and money,” she told CTVNews.ca. “I think that that is a barrier.”

“I think it’s cost-prohibitive, where someone’s records are not in the same city that they are in. And even setting that aside, during the ongoing COVID pandemic, it’s not really an option to go to the courthouse and pull the records, or if it is, there are risks and delays associated with that.”

Another problem is that many cannabis possession offences were prosecuted under a generic drug possession charge. Proving that the charge was for cannabis and not, for example, heroin or cocaine, means going back to the original files.

“Part of the problem is that the onus is on the applicant to prove what may be difficult to establish, in the absence of a clear court record, or documents that may have been lost over the years or decades. How to overcome that practical hurdle is a very good question.”

(On its website, the parole board says that its ability to deal with all types of pardon requests has been slowed down by the pandemic.)

However, even a minor criminal record does have the potential to affect someone’s life, Sa'd said.

“You’re going to have curbed travel opportunities, especially if you were looking to cross the border to the U.S. For certain volunteer or employment options, any mark on a criminal record is problematic. There are potential family law issues that can arise if there’s a conviction - that my set the stage for someone being characterized as an irresponsible parent, or someone who shouldn’t have custody.”

It would also affect someone’s chances of being licenced to work in the legal cannabis industry, Lewin said.

“If you applied for a retail cannabis licence, the question they’re going to ask you is whether you’ve ever been charged.”

Edited by CTVNews.ca producer Phil Hahn