Marijuana amnesty for all?

There are good reasons for a retroactive pardon on all marijuana convictions and at least one Liberal MP says it's an issue the government "should be picking up"



Canada is about to legalize marijuana, but one glaring miscarriage of justice remains: the thousands of people still being charged and those who already have records for marijuana-related criminal offences hanging over their head.

The Cannabis Act, the federal legislation to legalize recreational marijuana possession and sale, fails to address those being tried and convicted under our soon-to-be-outdated pot prohibition, leading legal experts to believe the government has no plans for a retroactive amnesty.

Scott Bardsley, a spokesperson for the Public Safety Ministry, writes in an email to NOW, “Until new legislation is passed by Parliament, the current laws and rules remain in place.”

But Toronto lawyer Dan Stein says he wouldn’t be surprised to see the government change its stance.

“Pressure for this is going to come. It could come from both sides of the aisle and from people talking to their MPs,” he says.

Nathaniel Erskine-Smith, Liberal MP for Beaches-East York, says he’s heard from constituents on the issue, including a young man charged with possession in the past year who received a conditional discharge.

“That’s still something that will definitely impact him, at least at the border,” says Erskine-Smith. “That’s just a one-off case, but a number of constituents [have told me] that if the law is being changed partly because it’s unjust, let’s make sure to correct the injustice completely.”

Erskine-Smith, who took a stand against his government last year by advocating for decriminalization of simple possession charges until legalization comes into effect, points out that when the Liberal Party first adopted a resolution on cannabis legalization from the party’s BC wing in 2011, an amnesty for pot possession charges was part of the motion.

While the Toronto MP doesn’t think an amnesty will immediately accompany legalization, he says “it’s something we should be picking up.” 

“One purpose [of legalization] is to make sure we address the obvious unfairness of criminal records for simple possession charges in particular,” says Erskine-Smith.

There’s widespread public support for an amnesty. A Globe and Mail/Nanos Research poll recently found 62 per cent of Canadians in favour of pardons for marijuana possession convictions.

“How fair is it that people are out there with their potential professional or travel opportunities and reputations tainted because of a criminal conviction for something most Canadians and the government think should be legal – and that people in high places routinely admit to doing?” Stein asks.

Possessing a small amount of pot is a criminal offence in Canada, although the legal system has become more lenient in recent years.

CTV Power Play host Don Martin recently revealed that he was arrested for possession in high school in the 70s and convicted. Though a judge later granted him an absolute discharge, the conviction came back to haunt him later while travelling to the U.S., which scrutinizes travellers even after their criminal records have been cleansed.

Provisions under the Criminal Records Act (CRA) allows those convicted for offences like simple possession to apply for a pardon. But pardons are granted on a case-by-case basis, and you have to wait five years after you’ve been convicted and served all sentences (including probation orders) to apply.

On top of this, the Harper government increased application fees to $631, a barrier especially for low-income individuals.

The Liberal government says it’s considering lowering this fee. But Michael Lacy, a Toronto-based lawyer and vice president of the Criminal Lawyers’ Association, says the CRA could also be changed to make pardons for low-level marijuana offences quick and automatic.

“It would be easy for the government to amend the CRA to automatically pardon any convictions for an offence that is no longer an offence,” says Lacy.

Bardsley, of the Public Safety Ministry, says that while the Cannabis Act does not propose any amendments to the CRA, that doesn’t mean changes have been ruled out.

“As the legislative framework moves forward, the government intends to consider options about what can be done to make things fairer for Canadians who have been previously convicted of minor possession offences,” he writes.

But some, like marijuana activist Jodie Emery, say that the government should go further and grant pardons for all marijuana-related convictions. 

“Growing [the new law allows home cultivation of up to four plants], selling, distribution – as long as it’s a non-violent crime, it shouldn’t exist on any record or database,” Emery argues. “People who are typically non-violent are being treated as criminals and second-class citizens.”

The issue is a personal one for Emery. She and her husband, Marc, have been charged with a host of marijuana offences, including trafficking, after police raids on their Cannabis Culture chain of dispensaries in March.

Stein, who provided legal counsel to the Emerys during their Toronto bail proceedings, says there are good “social and systemic” reasons for pardons on all marijuana convictions.

“What kind of vulnerable communities are overrepresented in these databases of people who have trafficking convictions? Has it disproportionately impacted certain communities? The answer would be pretty obvious that it has,” he says.

“If marijuana is all they trafficked in, then it’s a question of whether that should hold them back.”

Erskine-Smith says a blanket amnesty for marijuana convictions will be a tough sell.

“I see a lot of consensus on amnesty and record suspensions for possession charges, but I think it will be more difficult to find a consensus on charges beyond that.”

Marijuana enthusiasts can’t breathe a smoky sigh of relief just yet.    

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