Canadian Lawyer

60 M A Y 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m that expungement was only available if it was deemed that the criminalization of a certain activity (such as a sexual activity practised in the LGBTQ community) would today be con- sidered unconstitutional. That wasn't the case with recreational cannabis use, Goodale said, as that law was legitimate even though it has now been removed from the books. In February, prosecutors in San Francisco announced that they would move to expunge 9,300 marijuana-related convictions dating back decades, now that recreational cannabis use is legal in California. Other California counties, including Los Angeles, are consider- ing similar efforts. The Public Prosecution Service of Canada estimates that there have been upwards of 250,000 convictions for the simple possession of cannabis in Canada, according to Scott Bard- sley, a spokesman for the Office of the Minister of Public Safety and Emergency Preparedness. "For a variety of reasons, the number of people who are expected to apply for pardons under C-93 is much lower," Bardsley said in an email message. "Those reasons include: they have passed away, they have already received a pardon or they have other criminal charges on their record," which would make them ineligible to apply for a pardon for simple can- nabis possession. Should Bill C-93 pass, it is estimated that there would be free, expedited applications to pardon about 10,000 records, Bardsley wrote, and "we will undertake outreach initiatives to ensure that all those who can benefit know about the free, expedited process and how to use it." Pardon v. expungement In October, NDP MP Murray Rankin, representing Victoria, tabled a private members' bill, C-415, in Parliament to expunge certain cannabis- related convictions. In choosing a pardon application process over expungements, applicants will need to take the initiative in applying for the pardons, and the pardons could also be revoked. "In my view, a pardon doesn't go far enough," says Caryma Sa'd of [s]advocacy in Toronto, whose practice includes criminal law, cannabis and landlord/tenant issues. "If you look at the way that cannabis posses- sion historically has been criminalized, it's disproportionately affected minority groups. "What I would have liked to have seen is expungement," she says. "A pardon says you did something wrong, you've paid your debt, we'll now clear your record." That can be helpful in terms of find- ing employment and housing, and even doing volunteer work, but it can also be revoked, Sa'd notes. On the other hand, "expungement says that the underlying action never should have been criminalized." Sa'd says anything short of expungement would be unfair to Canadi- ans who have suffered jail time or have gone through the criminal jus- tice system for simple possession of cannabis. And although whites and non-whites have used cannabis at similar rates, she says, data has shown spikes in arrests toward non-whites. In 1923, when the government of Canada introduced the Act to Pro- hibit the Improper Use of Opium and other Drugs, and included can- nabis on the list, racism was a factor "right at the outset," says Sa'd. "It's time to acknowledge that." At the time, there was a concern regarding opium use and distribu- tion among Chinese immigrants on the West Coast. Several decades earlier, there was the Chinese Exclusion Act in the United States, and Canada's Chinese Immigration Act in 1923 banned most forms of Chi- nese immigration to the country. There was very little debate in the House of Commons when mari- juana was added to the list of drugs for which criminal penalties were established, she notes. In the United States, it was primarily Hispanic and black Americans who used cannabis recreationally, she says, adding that "criminalizing that drug of choice, in the midst of prohibition, I think there are clear ties to systemic racism at a policy-making level. There was virtually no debate when marijuana was added [to the list] and no evi- dence in policy research that grounded the criminalization of cannabis." The criminal bar is also concerned about the length of time it will take to get the proposed bill through Parliament and enacted into legislation. Bill C-93 has only just gone through first reading, notes Jessyca Greenwood of Greenwood Defence Law in Toronto. "Will it actually pass "Given the discriminatory actions that underlay cannabis prohibition and the discriminatory policing and prosecutorial practices that were a significant feature of cannabis prohibition, we believe expungement is a more appropriate model for how cannabis pardons should work." Stephanie DiGiuseppe, Ruby Shiller Enenajor DiGiuseppe, Barristers, Toronto PHOTO CREDIT: CHRIS WATTIE (REUTERS) Public Safety Minister Ralph Goodale

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