If the federal government wants to provide “no-cost, expedited record suspensions for simple possession of cannabis,” as it says it does, then that’s what it should do, by making the process automatic, says the CBA’s Criminal Justice Section.
While the Section acknowledges several practical hurdles, it says that “an ideal process from an access to justice perspective would be to require nothing from individuals with a record for simple possession to have their record expunged,” in a submission on Bill C-93, Criminal Records Act.
The application process set out in the bill will be fine for some but could pose an insurmountable obstacle for people with addiction issues or cognitive disabilities, the Section says. It also has concerns about the limited scope of the bill.
As well, the bill should ban the disclosure of suspended records, and ensure they are expunged from the RCMP’s automated criminal conviction records retrieval system “without delay,” in order to minimize the stigma associated with previous cannabis-related convictions.
“The CBA Section believes that, by implementing this automatic process to purge convictions as articulated in Schedule 3 (Cannabis Offences), the federal government would not need the other changes proposed in the bill. All other convictions and record suspension applications could continue to be handled through this current process.”
For example, section 4(3.1) states, “A person who has been convicted only of an offence referred to in Schedule 3 may apply for a record suspension in respect of that offence before the expiration of the period referred to in subsection 1.” The Section says removing the word “only” would expand the scope to all persons with a conviction for simple possession of cannabis.
The Section also takes issue with an “inappropriate” onus the bill places on applicants to prove an otherwise clean record. “It purports to waive inquiries into an applicant’s ‘conduct’ but then requires applicants to prove that the conviction at issue is their only conviction. Now that Canada has accepted the legality of possessing up to 30 grams of cannabis for personal use, this question should be omitted. Bill C-93 seems intended to remove the stigma associated with these types of convictions, and this as aspect of the bill would only perpetuate it.”
The Section also had a few comments about the pardons process in general, noting the cost of applying for a pardon is prohibitive. Lowering the fees could make them more widely accessible. It also recommends reverting to the wait times required before making an application that existed prior to amendments made in 2013: five years for indictable offences and three years for summary conviction offences.