Good afternoon, Mr. Chair and members of the committee. Thank you for inviting me to appear before you this afternoon as part of your committee's ongoing study of Bill .
I'm appearing this afternoon on behalf of the Canadian Police Association, which, as many of you know, is the largest policing advocacy organization in the country, representing over 60,000 front-line civilian and sworn law enforcement professionals from coast to coast to coast. Our members are the proverbial “boots on the ground” when it comes to issues of public safety and are the first to feel the effects of decisions made by elected officials at all levels of government.
As is my usual habit, I want to keep my opening remarks relatively brief to allow for as much time as possible for your questions and comments, particularly given that the subject matter in Bill is relatively straightforward.
At the outset, let me say that the Canadian Police Association is generally supportive of the goal of Bill . While obviously we have seen a significant change in the legal status of cannabis within the last year, there is no doubt that social attitudes towards marijuana have been changing for quite some time. We certainly see it with the policing level and with the general public as well. While we often hear the popular term “war on drugs” with respect to policing attitudes around these substances, which aren't just limited to cannabis, most police services in Canada, in my experience, if not all, have long since de-emphasized enforcement for simple possession.
Now that the legal framework has caught up to the social attitudes, there isn't any good reason, in my opinion, to deny people who have otherwise been law-abiding members of society being given a clean record and a chance to fully participate in areas that might otherwise have been denied to them on the basis of a past mistake. On that basis alone, our association is generally supportive of this legislation.
That said, we would like to take this opportunity to express some concern about the automatic nature of record suspensions being proposed by this bill. There's absolutely no doubt that the overwhelming majority of applications that will be made under these amendments will be from individuals who pose no ongoing risk to public safety, and they should certainly be dealt with as expeditiously as possible.
However, I would note that there will also be some applications made by offenders where simple possession may have been a charge that was arrived at based on a plea agreement with the Crown and down from a more serious charge. In those circumstances, it is possible that both the Crown and the court may have accepted the plea agreement based on the assumption that the conviction would be a permanent record of the offence and would not have accepted the lesser charge if they knew this would be cleared without any possibility of review at a future date.
While I understand that it would be both impossible and entirely unfair to hold unproven charges against someone, even in the case of a plea bargain, I do believe that this legislation could be quite easily amended to ensure that the proposed changes to the Criminal Records Act— specifically, the addition to section 4.1, which bars the Parole Board from conducting any evaluation of the applicant's history—don't allow habitual offenders to slip through the cracks.
An amendment that would allow the Parole Board to retain at least a slight amount of discretion to consider an applicant's conduct since conviction, or certainly any subsequent convictions, would alleviate any concerns police might have about ensuring community safety isn't compromised by the small number of repeat offenders who might take advantage of this legislation, and it will maintain the reputable administration of justice.
As I mentioned, I do want to keep these opening remarks brief. The legalization of cannabis has certainly been a significant change for front-line law enforcement, and I should note that it is a testament to the professionalism of our members that the transition to this new regime has been remarkably seamless over the eight months since the changes were enacted.
This legislation on the whole seems like a common-sense approach toward ensuring that criminal records reflect the new consensus around cannabis in Canada. We appreciate that the government has been very forthright in consulting with law enforcement experts as they've proceeded with this policy change, and we look forward to continuing that consultation.
We believe that Bill , with a few small amendments to ensure that the Parole Board retains some amount of discretion to ensure long-term and habitual offenders are held accountable, will allow people to avoid the stigma of a criminal conviction and give those who deserve it a much-deserved second chance.
Thank you very much for inviting me appear before you today.
Good evening, Mr. Chair, and members. My name is Annamaria Enenajor. I am a criminal defence lawyer and the founder and campaign director for the Campaign for Cannabis Amnesty.
The Campaign for Cannabis Amnesty is a not-for-profit advocacy group focused on righting the historical wrongs caused by decades of cannabis prohibition. It was founded in April 2018, not too long ago, in response to the absence of federal legislation addressing the stigma of previous convictions for offences that would not longer be illegal under the Cannabis Act. Since then, the campaign has been calling on the government to enact legislation to delete criminal records relating to the simple possession of cannabis. We believe that no Canadian should be burdened with a criminal record for minor, non-violent acts that are no longer a crime.
It is an honour to appear before you today, and I offer you some observations and modest recommendations with respect to Bill . The campaign supports the implementation of measures to remove the stigma of past cannabis convictions that disproportionately impact marginalized Canadians. As it is currently drafted, however, Bill C-93 does not go far enough.
The story of enforcement of cannabis possession offences in Canada is one of historical injustice and inequality. Canadians of different backgrounds consume and possess cannabis at comparable rates. In fact, Canada has one of the highest rates of cannabis consumption in the world. In 2017, 46.6% of Canadians—almost half of Canadians—admitted to using cannabis at some point in their lives.
Despite this widespread consumption, a growing body of social science evidence has shown that not all Canadians face the same consequences for these actions. Racial profiling and suspicion of specific groups on the basis of stereotypes means that some Canadians are more likely to be closely scrutinized by law enforcement than others. Black Canadians, indigenous people of Canada and low-income Canadians are more likely to be stopped, searched, arrested, prosecuted and incarcerated for cannabis possession offences than white Canadians. This is not a tragic and accidental phenomenon. This is a historical injustice and a systemic charter violation that cries out for redress.
The equality provision of the charter was intended to ensure a measure of substantive, and not merely formal, equality. The Supreme Court of Canada has consistently held, beginning with the case of Eldridge, 1997, that a discriminatory purpose or intention is not a necessary condition to finding a violation of the equality provision of the charter. It is sufficient if the effect of the legislation, while neutral on its face, is to deny someone equal protection and benefit of the law. To the extent that the government seeks to draw distinction between laws that are discriminatory on their face and laws that are discriminatory in their effects, a distinction is illegitimate for the purpose of our constitutional protections.
While historical cannabis protection laws were not discriminatory on their face, they most certainly produced discriminatory effects in their enforcement. They perpetuated disadvantage on the basis of race, ethnic origin and colour, all of which are prohibited grounds under the charter.
The unequal and disproportionate enforcement of cannabis-related offences on this scale and of this magnitude encourages distrust and resentment of law enforcement, cynicism towards the administration of justice and an understandable sentiment that the promise of substantive equality under the charter is a myth for many Canadians. An appropriately powerful response to this shameful history is therefore also necessary to maintain the integrity of our justice system.
While the campaign applauds the government's willingness to recognize the disproportionate stigma and burden that results from the retention of conviction records for historical simple cannabis possession, we believe the bill does not go far enough.
Given the serious consequences of a cannabis possession conviction on the lives of Canadians and the legacy of inequality through disproportionate and discriminatory enforcement, the federal government must respond to this historical injustice with a measure sufficiently powerful to denounce a shameful history. People with simple cannabis possession records should be put in the same position as those millions of Canadians who did and who continue to do the exact same thing.
While it was criminal, they did not face any consequences because of factors that have no bearing on their moral culpability or criminality—factors such as their race, income, family connections and their neighbourhood of residence. As a result of that, they were never arrested and never convicted and were able to proceed through their lives with opportunities that were not available to other Canadians. As a result, Bill should be amended to provide for free, automatic, simple and permanent records deletions for simple cannabis possession offences.
If the government is not willing to go that far, then we suggest that there are other aspects of that kind of regime that the government could tap into that would still be satisfactory. For example, the government could incorporate aspects of an expungement scheme that could improve the bill's utility and allow for the implementation in a way that would benefit as many people as possible.
For example, on Monday when this committee met last, we heard that because of our decentralized and often archaic record-keeping practices, attempting to find and then destroy all relevant records would simply be too arduous. Just because we can't do this for all records doesn't mean we can't do it for some, and in fact, for the most important. As the honourable mentioned on Monday, while records relating to criminal offences do not exist in a single national database, records for convictions that have the greatest impact on jobs, volunteering and travel, in fact do.
The Canadian Police Information Centre, CPIC, is a national database maintained by the RCMP. If someone is arrested, charged and convicted of a crime, this record exists in the CPIC database. When an employer asks for a background check, for example, and requests it from the RCMP, the RCMP doesn't dispatch agents to rummage through courthouses to get all these disparate court records and information about an individual. They scan CPIC. When Canada discloses conviction information about its citizens to the United States, it also doesn't send photocopies of papers in boxes that are all across the country in disparate jurisdictions. It shares one database: CPIC.
Whereas we can't delete all records, what we can do is target one extraordinarily important database. Automatically removing all simple cannabis possession offences from CPIC would go a long way to alleviate the impact of a conviction from the lives of Canadians, even though this would not constitute a full expungement.
The automatic deletion of CPIC entries in relation to simple cannabis offences is also a cost-effective way to provide immediate relief to Canadians. An application process involving the collection of records from provincial, territorial and local police databases involves delays and hidden costs. Even if Bill eliminates the $631 application fee ordinarily required for record suspension applications, applicants may still need to pay for fingerprinting, court information and local police record checks, which can add up to hundreds of dollars.
There has been some discussion in this committee about whether record suspensions assist Canadians when crossing the border to the United States. I'd like to speak very briefly about that, and I could be asked more questions about that later. Record suspensions do not assist Canadians seeking to cross the border to the United States. The United States does not recognize any foreign pardon, irrespective of the effect of conviction. In fact, neither foreign pardons nor foreign expungement are effective in preventing inadmissibility to the United States. They are essentially equally useless.
I have provided to this committee fulsome submissions in writing that outline further recommendations, points and observations about this law. However, I wish to conclude with our primary recommendation, which is this: Bill should provide for the permanent and automatic deletion of all conviction entries for cannabis simple possession in the CPIC database.
Our subsidiary recommendations are outlined in our written briefs.
We hope that the recommendations that we proposed would increase the bill's utility, assist in achieving its stated goals and allow for implementation that would benefit as many people as possible.
Thank you for your time.
I do not. I make reference to that in my written submission, but I can respond right now.
Essentially, what Minister was trying to say was that pardons are more beneficial for government crossings to the United States, because a successful applicant will have documented proof of a pardon while an expungement does not. This would only be the case where the government creates a regime that results in that objective.
This question was raised in this committee when the government was studying Bill , which was a bill to create expungement for historically unjust sentences. When the CEO of the Parole Board, Talal Dakalbab, testified before this committee, he was asked this very same question.
Talal Dakalbab testified that those who receive an expungement pursuant to Bill could carry with them the Parole Board of Canada's expungement decision. This is a quote from that testimony:
This document shows that their offence has been expunged or that they have obtained a pardon or a record suspension. This is usually how this information can be removed from the systems of other countries.
There is a mechanism—if the government constructs the legislation in that way—to provide a document that is equally as useful in the process of an expungement but that is not in a criminal record database. With something, for example, like a birth certificate, there is meaning and weight to its significance, but it's not in a police database; it doesn't prevent you from getting a job.
Where it can be created, as Minister mentioned in the case of a suspension, it can also be created in the case of an expungement, and that was suggested by the CEO of the Parole Board when testifying about Bill .
I'd like to thank both witnesses for being here.
I'll start with you, ma'am.
I'm going to go back in history a little bit because I was there. I started policing in the 1960s and drugs just started to filter into Canada's community in about the mid-1960s. I was there when we started an active enforcement program, regardless of whether it was Edmonton city police or Vancouver RCMP. I watched the progression as it came up to today. I've been there and watched it.
One thing that you mentioned—and I do agree with you—is that we can not rely on anything out there for this record thing other than CPIC because CPIC didn't start when the drugs started. There are lots of records that are lost who knows where. We discussed that a little bit.
We've had discussions here by our parole people who say they have to look at it and decide whether that person should be eligible or shouldn't be eligible. They say that they're going to be able to do it quite quickly. It should be immediately, but when they sit it here they say it may take some time. To me, that's not going to be cheap and fast.
I've brought this up a number of times. I think everybody here in this room kind of knows that I think pressing a button is the way to do it for simple possession charges. It was very clear to this committee the other day that if the charge was reduced 15 or 20 years ago from something else to simple possession and that's what the Crown decided to go on and that's what the person was convicted of, then all we can rely on is that simple possession charge.
In this day and age of artificial intelligence, some of the best minds in the world here in Canada could not develop a program that would connect the CPIC program held by the RCMP with a computer going through that thing faster than we can with a group of people. You'd think a logical way of doing it would be where the computer would go and kick out the ones that should be kicked out and delete them.
I wonder what are your feelings on that.
Good afternoon, Mr. Chair and committee members.
Thank you for inviting me to address you today on the subject of Bill .
First, let's start with the positive. The philosophy behind this proposed legislation is sound. It is fundamentally unjust for individuals to suffer under the continued stigma of a criminal record for conduct that is no longer illegal.
As we are all well aware, a criminal record is indeed a significant barrier to success in our society. It compromises a person's ability to obtain employment, education, housing, financing, volunteer opportunities and travel. These are all roadblocks, individually and cumulatively, to a person's ability to integrate into society, contribute positively to the larger community and lead a productive, prosocial life.
The injustice of maintaining the criminal convictions for individuals previously convicted for simple possession of cannabis is further compounded when we examine the uneven and discriminatory effect of the criminalization of cannabis on already marginalized groups in Canada. In Toronto, for example, where black people make up 8% of the population, they account for 25% of all persons charged with possession of marijuana between 2003 and 2013. The same is true with respect to indigenous persons. Take Regina, Saskatchewan, where 9% of residents are indigenous but were 41% of all persons charged with cannabis possession.
Historically, these offences have disproportionately impacted the most vulnerable in our society: the poor, the marginalized, the mentally ill, the racialized and indigenous people. If the statistics aren't enough, I can tell you from the unfortunately steady stream of clients through my office that those charged with simple possession of marijuana share these traits. They generally derive from marginalized groups and, in a cruel twist of irony, these criminal convictions themselves further marginalize those same groups, perpetuating a cycle of criminalization, stigma and inequality.
Bill undoubtedly comes from a good place, and the government should be applauded for that. However, while well intentioned and a positive first step—there's always a “however”, especially when you bring in a lawyer—it remains, in my respectful view, deeply flawed. I will address each of these flaws in turn.
First, the bill requires that affected individuals apply to the Parole Board of Canada for a record suspension. This requires that a formal application be filled out and sent into the Parole Board for review. While the bill explicitly provides that no fee is payable for this particular application, unlike the ordinary record suspension fee, I suspect that for many Canadians this process will not be free.
There are numerous companies that for a significant fee will, quote, “assist” individuals in completing record suspension applications. In fact, as of today, the top ad under the Google search results for “cannabis pardon Canada” was a for-profit website offering their services for the low monthly price of $72 and $116 per month if expedited. To be clear, that is a monthly price on a 16-month payment plan. Who do you think this website is targeting to pay $72 or $116 per month on a 16-month payment plan?
We're talking about the low, low price of somewhere between $1,152 and $1,856, and that, of course, is irrespective of whether or not the government charges a fee for these applications. Recall that persons most likely affected by these criminal records are those already at the margins of society: people who have faced systemic barriers to success in education, employment and elsewhere. This bill, intentionally or otherwise, may serve as a barrier for people to obtain the very benefits it purports to offer.
Surely, in our age of electronic data, these records of criminal convictions for simple possession of cannabis can be proactively located by the Parole Board of Canada and identified for whatever action is ultimately legislated, be it record suspension expungement or otherwise. The burden, in my view, should be on government to rectify these records. While for those of us in this room the prospect of completing a government application may not be particularly daunting, it might be near impossible to those facing financial, educational, mental health or other challenges.
Second, Bill requires that individuals have completed their sentence prior to applying for a record suspension. Why? Why should an individual continue to be penalized, whether it is by a real jail sentence, a conditional sentence, probation conditions or otherwise, for conduct that is no longer illegal?
Why should an individual have to await the expiry of a lengthy term of probation for an offence that no longer exists under our law?
In my view, the injustice created by these criminal convictions should be addressed immediately, without waiting for expiration of any sentence, whether it is a prescribed period of probation, payment of a fine or some other sanction. And if you're too poor to pay your fine, well, you can never complete your sentence and you can never apply for this record suspension.
Third, I turn to the most fundamental issue of all with respect to Bill : the very nature of the record suspensions mechanism. A record suspension is exactly what it sounds like. It is not a pardon; those don't exist anymore. It is not amnesty or expungement. It is a statutory process whereby the record of an offence is “suspended”, that is, “kept separate and apart from other criminal records”. A record suspension can be revoked. This happens automatically upon the commission of virtually all Criminal Code or controlled drugs and substances offences.
But it is broader than that. A record suspension may be revoked if the board is satisfied that the person “is no longer of good conduct”. Let me give you real-life examples of individuals I have assisted who have been served with applications from the Parole Board to revoke their record suspension: people who have been the subject of numerous police checks, intelligence, or otherwise, or have received highway traffic offences such as careless driving. They were found to no longer be of good conduct. Now, I am happy to say we successfully defended those applications to revoke the record suspension.
But there you are. This will be hanging over your head for the rest of your life. Moreover the minister retains the discretion to approve the disclosure of such a record where he or she is satisfied that disclosure is “in the interests of the administration of justice or for any purpose related to the safety or security of Canada or any state allied or associated with Canada.”
I can think of a state allied or associated with Canada that might be very interested in the otherwise criminal records of individuals convicted for the simple possession of cannabis.
In other words, the offence always hangs over the individual's head, record suspension notwithstanding. Most importantly, unlike expungement which requires notification to the RCMP and all other federal agencies to destroy all records to which the expungement order relates, there is no such broad requirement for a record suspension.
In review, the proposed application is itself a barrier to access, particularly for an already marginalized population. The bill requires individuals to complete their sentences before applying. In my respectful view, this is illogical, counterproductive and unnecessary. The record suspension is not a deletion of the conviction record itself; it is a suspension, a temporary suspension, one that can be revived by either administrative or statutory process.
What, then, is the alternative?
I should first note that Bill is better than nothing. But better than nothing is a mighty low bar for our Parliament. You can do better. You must do better. Instead, I would urge a scheme of expungement along the lines already provided for in the Expungement of Historically Unjust Convictions Act. The record of these convictions for the simple possession of cannabis should be expunged permanently and automatically.
In this regard, I would propose a private member's bill, Bill , sponsored by Mr. and introduced last October. It comes much closer to the goal of achieving true justice and relieving the disproportionate criminalization and stigmatization for those convicted of a now legal act of simple possession of cannabis.
The government has maintained in its backgrounder to this bill that expungement is only appropriate “where the criminalization of the activity in question and the law never should have existed, such as in cases where it violated the Charter.”
While the first clause of that requirement is debatable when it comes to cannabis. I can tell you as a criminal defence lawyer that the criminal prohibition of cannabis has caused much more harm than good. There is no doubt that the disproportionate application of the law violates the charter guarantee of equality and runs contrary to our most fundamental constitutional values.
It is a historical wrong that ought to be redressed. Parliament can do so via the remedy of expungement. I would urge you to do exactly that.
Thank you very much for your kind attention.