POLITICS
03/12/2019 15:05 EDT | Updated 03/12/2019 21:57 EDT

San Francisco Erased 8,132 Pot Convictions At Once. Canada Is Another Story.

“I don’t know why you’d make people jump through so many hoops,” said the district attorney.

Jonathan Hayward/THE CANADIAN PRESS
A man smokes a marijuana joint in Kamloops, B.C. on Oct. 17, 2018.

A few months after California made it possible to clear cannabis-related convictions from people's records, San Francisco prosecutors realized the system wasn't working.

Only 23 of the estimated 9,400 qualified individuals had applied in the first half of 2018, the city's district attorney George Gascon told HuffPost Canada in an interview.

"People weren't coming forward because they don't have the time, or money," he said.

In June, his office partnered with non-profit organization Code For America, which uses an algorithm to automatically clear cannabis-related convictions, or reclassify them to a lesser charge. Last week Gascon announced they'd expunged 8,132 convictions at once, going back to 1975.

Jeff Chiu/ASSOCIATED PRESS
San Francisco District Attorney George Gascon speaks at news conference in San Francisco, Calif. on Feb. 21, 2018.

"If you've already legalized marijuana and you already know who has been convicted before, I don't know why you'd make people jump through so many hoops."

Is it possible for Canadian officials to do the same sweeping reform? Not with the federal government's proposed legislation, experts say.

Tabled earlier this month, Bill C-93 waives the $631 pardon application fee and five-year waiting period for simple cannabis possession, but it doesn't give officials the authority to take on the burden and clear convictions automatically, said lawyer Annamaria Enenajor, director of the Canadian advocacy group Campaign for Cannabis Amnesty.

"It's very disappointing they're essentially going with an existing regime, despite so many people having been harmed by cannabis prohibition," Enenajor said.

Watch: Liberals take steps to speed up marijuana pardon process. Story continues below

As many as 400,000 Canadians have criminal records for simple possession, meaning they had no intention to traffic illegal substances, Bill Blair, minister of border security and organized crime reduction, has previously said. The government expects between 70,000 to 80,000 people are eligible to apply for a pardon.

Before legalization last October, black and Indigenous Canadians were arrested and charged for cannabis possession at higher rates than any other population. In Toronto, for example, black people with cannabis were three times more likely to be arrested by police than white people, according to the Toronto Star. And people with criminal records for pot-related convictions face barriers when it comes to employment, housing and travel.

"It has the impact we want in terms of lifting that stigma and burden allowing a person to fully participate in society. It's the best effective tool to get the result we want to achieve for people who have been carrying around those records and that stigma for too long," said Ralph Goodale, minister of public safety, at an announcement last week. He expects the legislation to be passed this summer.

Bill C-93 doesn't go far enough to correct this discrimination, said criminal lawyer Stephanie DiGiuseppe.

First of all, Canada will only grant pardons, not expungements like in California.

"It sounds like it's driven by politics rather than good policies."George Gascon, District Attorney

The difference is that pardons remove the conviction from the person's criminal record but it can still be seen by some police and government agencies, and be reinstated by a parole board or the next government, DiGiuseppe said. Pardons indicate the government is forgiving someone for criminal behaviour.

Expungement, on the other hand, erases the conviction forever.

"The philosophical difference is expungements say something is historically unjust about the law, that it was prosecuted and policed in a discriminatory way," DiGiuseppe said.

GEOFF ROBINS/Getty Images
A man rolls a marijuana cigarette during a legalization party in Toronto on October 17, 2018 — the day nearly a century of marijuana prohibition came to an end.

While Goodale acknowledged cannabis convictions "unfairly and disproportionately" impacted marginalized communities, the law itself did not violate the charter and therefore the federal government won't be using expungement.

"We need to note that a pardon is a very effective remedy. It's cheaper and faster for the parole board to administer. The individual's record will be sealed and segregated. That record can only be examined again in extraordinary circumstances, like for example if some other offence is committed in the future," Goodale said.

The pardon application process, even without the fee and wait period, poses a "significant barrier" that will prevent people from applying, DiGiuseppe said. Many people seek legal advice, or other services, and might be required to submit signed affidavits and courthouse documents.

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Putting the onus on individuals to apply for a pardon doesn't make sense to Gascon, neither does the fact the Liberal government is only pushing the legislation through now, months after legalization.

"It sounds like it's driven by politics rather than good policies," Gason said. "I would urge stakeholders to push back and look for more effective approaches to remove convictions."