10/17/2018 09:33 EDT | Updated 11/22/2018 12:10 EST

Weed Possession Pardons Promised By The Government Don't Go Far Enough

The plan will do nothing to address the inadmissibility of individuals to the U.S. who were convicted of marijuana possession prior to legalization.

With marijuana legalized as of today, it's been suggested something should be done to help individuals with past marijuana convictions. The media is now reporting that the federal government will announce its plan to offer expedited pardons (now known as record suspensions) to individuals who were previously convicted of simple possession of marijuana in Canada.

Unfortunately, this plan doesn't go far enough.

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A depiction of a cannabis bud hangs from the ceiling as a band plays at Leafly's countdown party in Toronto, Tuesday, Oct. 16, 2018, as they prepare to mark the legalization of Cannabis across Canada. (Chris Young/The Canadian Press via AP)

The effect of a Canadian pardon

Pardons are administrative, and as a result, don't have the same effect as an executive pardon granted in the United States.

According to Subsection 2.3(b) of the Criminal Records Act, a record suspension requires that the judicial record of the conviction be kept separate and apart from other criminal records, and removes any disqualification or obligation to which the applicant is, by reason of the conviction, subject under any Act of Parliament.

These individuals will remain permanently barred from the U.S.

In other words, a record suspension doesn't erase the fact that an individual was convicted of an offence; it merely seals their criminal record and removes any disqualification that might otherwise be imposed under federal law.

Even if the government proceeds with its plan to address past marijuana convictions by means of a simplified or expedited record suspension, this will do nothing to address the U.S. inadmissibility of individuals who may have been convicted of simple marijuana possession offences prior to legalization.

These individuals will remain permanently barred from the U.S.

U.S. inadmissibility after legalization

As I've previously explained, the following rules will apply going forward:

  • Prior convictions for marijuana use/possession before legalization will still result in a permanent bar.
  • Admitting to prior marijuana use/possession that occurred prior to legalization will still result in a permanent bar, regardless of whether or not the individual was ever charged or convicted of the offence.
  • Admitting to marijuana use/possession that occurs after legalization can still result in a bar under the "drug abuser or addict" or "mental defect" grounds of inadmissibility, although these grounds require a medical assessment from an approved panel physician.

Expungement not an alternative to record suspension

On October 4, New Democratic Party Justice Critic Murray Rankin tabled a private members bill, which offered a different approach to dealing with prior marijuana possession convictions. Bill C-415 would expunge these past convictions rather than address them by means of record suspension, which means the individual is deemed never to have been convicted of the offence. In contrast, a record suspension merely seals the criminal record of an individual.

This proposal is not without precedent. A similar bill to expunge the prior convictions of individuals who had previously been convicted for consensual sexual activity with a person of the same sex received Royal Assent on June 21.

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Despite the rather significant distinction between an expungement and a record suspension, court decisions in the United States have taken the position that no foreign pardon, expungement or amnesty will be recognized for the purposes of U.S. immigration law, regardless of whether it extinguishes the actual conviction or merely the penalty. As a result, even if Bill C-415 becomes law, it will not affect the inadmissibility of individuals who were convicted of marijuana related offences in Canada prior to legalization.

As such, the current plan to pardon marijuana possession convictions in Canada remains insufficient.

CORRECTION: An earlier version of this blog indicated that a person barred from entering the U.S. for a marijuana conviction could be considered admissible if their conviction were expunged. They would remain inadmissible.

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