Obtaining a pardon (now referred to as a record suspension), for possession and/or trafficking in marijuana or any other drug is the same process as pardoning any other offence. Unlike most offences covered in the criminal code however, drug offences are governed by their own specific legislation. Prior to 1996, drug offences were covered under the Narcotics Control Act, but this act was replaced by the Controlled Drugs and Substances Act which has governed drug offences in Canada ever since. This act covers drug offences such as possession of a scheduled substance under s. 4(1), trafficking in a scheduled substance under s. 5(1), and possession for the purpose of trafficking under s. 5(2). The distinction between possession, and possession for the purpose of trafficking, is generally based on the amount of the substance possessed by the individual. This can be an issue of constitutional validity, as it will often pre-suppose the intention of whoever is in possession of the substance, contrary to s. 11(d) of the Charter of Rights and Freedoms.
Under the Controlled Drugs and Substances Act, various drugs are sorted into “schedules” which group these drugs based on their type, and typically their severity. Whether an offence is processed summarily or by indictment depends largely on which schedule of drug was involved in the offence. This distinction is important for record suspensions (pardons), because it means the difference between waiting either five (5) or ten (10) years from the end of your sentence before being eligible to apply for a record suspension. Schedule I drugs include such harmful drugs as cocaine, opium, ketamine, etc. Although some convictions involving these serious drugs can be processed either summarily or by indictment as per the discretion of the crown, most will result in the trial being processed by indictment, and therefore the offender will be subject to a ten year wait before being eligible for a pardon. Some offences are automatically indictable, such as trafficking in a schedule I or II substance.
Below find a list of the schedules covered under the Controlled Drugs and Substances Act:
- SCHEDULE I- Cocaine, Ketamine, Opium, etc.
- SCHEDULE II- Marijuana, Cannabis resin, Cannibinol, etc.
- SCHEDULE III- Amphetamines, Methamphetamines, Mescaline, etc.
- SCHEDULE IV- Barbiturates, Benzodiazepines, Anabolic Steroids, etc.
- SCHEDULE V- Propylhexedrine (1–cyclohexyl–2–methylaminopropane) and any salt thereof
- SCHEDULE VI- Acetic anhydride, Phenylacetic acid, Potassium permanganate, etc.
- SCHEDULES VII and VIII- Lists quantities of cannabis that can determine seriousness of sentence, or whether it is processed summarily or by indictment
Drug Offences and the Measurable Benefit
Completing a pardon application requires the applicant to write personalized responses to questions posed by a document referred to as a “Measurable Benefit” form. This form asks the applicant to discuss the specifics of their offences, and in the case of drug offences the Parole Board of Canada requires the applicant to make specific mention of the amount and type of drug involved in the offence.
Drug Offences and the United States
The United States is very stringent about individuals with drug offences. All charges for drug offences,even if you weren’t convicted of these charges, can be used as a discretionary reason for denying an individual entry. Additionally, if any amount of drug is found in a vehicle attempting to cross the border, the occupants will be charged and denied entry immediately. If you have been denied into the United States based on these reasons or any other, we highly advise you contact our offices to assist you in obtaining a US entry waiver, which will allow you entry to the United States despite any previous drug charges under the Controlled Drugs and Substances Act, or the Narcotics Control Act.
If you require any more specific information regarding pardons for drug offences, have questions regarding eligibility, or any other inquires, don’t hesitate to contact our offices.