For Jim, marijuana was a way for him to deal with back pain after falling off a ladder at work. For Noelle, it was a youthful indiscretion that she tried a few times before applying for nursing school.
For both of them, it resulted in a criminal record when neighbours complained. Jim had trouble getting positions requiring the ability to be bonded, which he needed to enter people’s homes as a certified electrician. Noelle was embarrassed by the criminal record checks required for employment as a nurse and now works in a medical supply store instead.
For many, a criminal record creates a barrier to career advancement, educational opportunities, travel, and volunteering.
Jim and Noelle are looking forward to the day when they are eligible for a pardon (after five years according to current legislation). However, since Justin Trudeau made legalization of marijuana an election pledge, they are wondering if relief might come sooner in the form of expungement of criminal records related to possession. This was not part of the election pledge, but is it a possibility?
Legally, it would be difficult for the government to retroactively reverse a duly adjudicated decision from a court. For example, the last person in Canada to be charged for having consensual homosexual sex continued to serve his sentence despite the fact that his case was a major impetus in having the law against same-sex relations thrown out.
Similarly, those rounded up during Canada’s short-lived experiments with alcohol prohibition were also not exonerated when the laws were repealed.
However, Alan Young, a professor at Osgoode Hall Law School who specializes in criminal law related to consensual activities such as drug use, says the legalization of marijuana might be first.
“There’s no precedent for a law to be overturned that applied to so many people, especially young people,” he says.
Potentially there could currently be 400,000 to 600,000 people living with marijuana-related charges. As a result, legalization might be an opportunity to institute some kind of streamlined process for dealing with the numbers. However, it won’t be automatic, Young says. It’s something that interested groups and activists will have to fight for once we know how the Liberal government plans to proceed in changing the law.
Some politicians certainly agree it’s time for a change. But will a change to the legal status of recreational marijuana possession and consumption make any difference for those with previous convictions?
The War on Drugs
Increasingly, the “war on drugs” has come under fire by doctors, lawyers, police officers, policy makers, and other professionals close to the frontlines. In fact, according to an 84-page report signed by five Nobel-Prize winning economists, the War on Drugs has officially failed. The report, created at the London School of Economics, is authored by leading drug policy experts and is supported by numerous political figures from around the globe.
In the report, the authors offer statistics and evidence that trying to create a “drug-free world” through prohibition has been an expensive and wasted effort on the part of governments. John Collins, the coordinator of LSE IDEAS International Drug Policy Project and the report’s editor, stated the existing policies on drug distribution, possession, and use is a failure requiring “a major rethink of international drug policies.”
This sentiment is echoed in Canada where health economist Dr. Claire de Oliveira agrees that a new direction is necessary in drug policy reform. Dr. Oliveira, who works at the Centre for Addiction and Mental Health, claims that Canada should “implement policies that have been shown to work and are based on rigorous, scientific evidence.”
Making the Case for Legalization
Canadians need look no further than the United States to get an idea of which policies have been shown to work, at least on an economic scale. The American state of Colorado fully embraced recreational and medicinal marijuana. The state’s population is less than 5.5 million, but in 2014, the state collected $44 million USD in tax revenue alone from the sale of marijuana. In 2015, Colorado brought in $10 million USD per month in marijuana sales – more than taxes on alcohol sales.
While recreational marijuana distribution, possession, and sales are still illegal in Canada, the illegal marijuana industry is currently valued at more than $7 billion a year. Twenty per cent of Canadians claim to use marijuana each year, and at least 30 per cent of Canadian residents admit they would use marijuana if it were legalized. Currently, the majority of police charges related to drugs and possession are for marijuana (67 per cent), according to 2013 Stats Canada numbers. Of those offences, 80 per cent were for possession.
The pathway to legalization has already begun, even if it’s off to a bit of a bumpy start. In November of 2015, Canadian Prime Minister Justin Trudeau called on the Canadian Minister of Justice and Attorney-General Jody Wilson-Raybould to look into implementing marijuana legalization in the country. Her official instructions by Trudeau via mandate were to collaborate with other ministers to “create a federal-provincial-territorial process that will lead to the legalization and regulation of marijuana.”
As there is already some framework laid in Canada for medically prescribed marijuana, many including Trudeau and Wilson-Raybould hope for a smooth road to legalization, citing the success of Colorado and nearby Washington State as examples.
The Battle about Legalization Rages On
While the current Prime Minster feels strongly about legalizing marijuana for recreational use nation-wide, more than just logistical and financial obstacles stand in the way. Back in 2001, courts ruled that individuals suffering from epilepsy, AIDS, cancer and other serious debilitating conditions had a constitutional right to grow and smoke marijuana.
The liberal federal government at the time developed a hybrid system where the health ministry acted as dealer and doctor. There was a single supplier and patients were allowed to grow their own plants with a license.
In 2006, Stephen Harper’s Conservative government replaced the Liberals and took no time at all to make their positions on narcotics clear. They couldn’t close the medical marijuana industry due to the legal standing, but they would privatize and more tightly regulate the industry. Twenty-five privately held medicinal marijuana companies now were able to deliver only by mail to doctor-approved patients.
Only a handful of the medical marijuana patients fell in line with the new regulations. While 30,000 patients followed the new Conservative rules, almost one million more were thought to follow their own rules. Ultimately, the federal court threw out the ban on growing in February 2016, but the current government will still need to come up with new rules for medical marijuana users.
Meanwhile, dispensaries, operating in a very hazy, very grey part of the law have sprung up across Canada with varying results. Vancouver has more than 170 dispensaries or “compassion clubs” that are monitored and regulated to a certain degree by the province. On the other hand, Saskatchewan recently closed down the only storefront dispensary in the province with a police raid resulting in arrests.
The various forays into the gray area between legal and illegal are causing politicians to discuss the issue in greater detail, but some were disappointed that it didn’t become a major issue in the last federal election.
Vancouver-based legalization activist Jodie Emery had hoped to run in the recent election and expressed her frustration with the sidelining of marijuana as a major discussion point, “It is disappointing to see that it’s being looked at as kind of a side issue. I think it’s a lot more important than people realize, and if we were to point to Colorado or Washington State … we would see that the tax revenue and the job creation is quite impressive.” She claims, “It does relate directly to jobs and the economy and health care and the main concerns of most voters.”
Emery also touched on the direct participants in the battle when she criticized the police’s involvement in marijuana laws. Emery argued that, “One of the biggest concerns of the marijuana movement…is that police have always been the biggest cheerleaders for prohibition and they’ve been our adversaries in this whole historical movement.”
She is especially concerned over the recent appointment of Bill Blair, Toronto’s former police chief, as a point man on legalizing weed. Liberal MP Bill Blair is currently serving as parliamentary secretary to Wilson-Raybould. According to Canadian Police Association president Tom Stamatakis, the government understands the various challenges and the public safety concerns of legal marijuana and is looking to Bill Blair to help navigate this particular minefield as the battle for legalization moves forward.
Legalization and Decriminalization
Former Police Chief Bill Blair is already the subject of rumbling not just from marijuana activists afraid of his police past, but also from the current Canadian Association of Chiefs of Police who advocate a form of decriminalization or ticketing marijuana users but not full legalization. Decriminalization is removing or reducing the consequences of marijuana possession as has been done in Jamaica and many South American countries. If Emery, Trudeau, Blair, and Wilson-Raybould have their way, Canada will be the first country to fully legalize marijuana, removing any penalties and openly allowing the growth, sale and consumption of marijuana.
This proposed legalization has many supporters amongst the general public. A 2015 CBC poll held weeks before the election found that 56 per cent supported legalization versus 30 per cent for decriminalization.
Beginning in the 1970s with the Le Dain commission’s formal and detailed opinion to repeal the prohibition of cannabis and ending with the most recent 84-page report from the London School of Economics about the failure of the War on Drugs, claims that “reefer madness” is worthy of a heavy-handed police response appear to be dissolving.
There is no timeline or publically stated deadline for the legalization of recreational marijuana. The new government has other priorities taking precedent, but as many as a third of all Canadians are waiting, sometimes impatiently, for the process to begin in earnest. As enthusiastic as legalization supporters will be if and when legalization finally occurs, there is one large group of citizens who may learn that little has changed for them.
While it is unlikely that previous convictions regarding marijuana would simply disappear, the pardon system, or record suspensions, will remain a viable alternative for individuals with previous convictions. Already Public Safety Minister Ralph Goodale plans to examine many of the changes made to the Canadian pardons system by the previous Conservative administration.
Four years ago the pardons system changed to a system of record suspensions. The fees quadrupled and the number of years individuals must wait to apply doubled in some cases. Goodale feels that, “The previous government had a certain ideology and a certain approach that needs to be re-examined as to whether it was then or continues now to be appropriate.”
Currently, there is a five-year waiting period for those with a single marijuana conviction seeking a record suspension if all other criteria are met. It is unlikely the legalization of marijuana will make direct changes to this process, but there may be hope as Goodale digs a bit deeper into the changing legal environment. For many with marijuana convictions currently, a record suspension is the only pathway to discrimination-free employment and travel.
For those still struggling with the burden of a criminal record, Blair confirmed recently that there is no schedule for rolling out legalization and would not even confirm that it will be done before the next election. Wilson-Raybould’s 415-page briefing book was released to Post Media, which confirmed that Trudeau’s pledge to legalize marijuana is not even mentioned until page 400.
Pardon Services Canada has spoken to thousands over the past 25 years looking to remove their record. It’s been our experience from talking with clients that carrying a criminal record continues to place discrimination and restrictions on them, even after any fines or other related sentences have been served.