“It’s not just for marijuana … It’s for the simple possession of all drugs.”
That is how federal NDP Justice Critic Randall Garrison describes a law requiring Ottawa to sequester, by Nov. 17, the criminal records of Canadians who have been convicted of possessing drugs such as cannabis, heroin, opioids or methamphetamine.
The legislation means people convicted of simple possession of drugs — including those that are still illegal to possess in most parts of Canada — will not have their criminal records show up in the background checks commonly performed for employment, volunteer and tenant screenings.
“I am not aware of any other cases of automatic sequestration of criminal records in Canada,” said Malcolm Thorburn, a law professor at the University of Toronto whose research areas include criminal law and procedure.
Facilitate reintegration
After decriminalizing cannabis possession in 2018, the Trudeau government introduced a streamlined process to enable individuals who had criminal records for cannabis possession to have their records set aside in the Canadian Police Information Centre database.
Public Safety Canada says it views this record sequestration process as important to helping to facilitate offenders’ reintegration into society.
“Record suspensions acknowledge that individuals with criminal records for simple possession of cannabis should no longer be penalized for that activity, and that barriers to employment, housing and education caused by that criminal record should be reduced,” Max Watson, a spokesperson for Public Safety Canada, told Canadian Affairs in an emailed statement in August.
While the government predicted its cannabis record-suspension process would provide amnesty to 10,000 Canadians, the Parole Board of Canada received only 1,347 applications for record suspensions between Aug. 1, 2019, and July 2, 2024. And only 861 of those led to record suspensions, Canadian Affairs reported in August.
In 2022, Garrison proposed legislation to address the perceived limitations of this process. The resulting legislation, which took effect Nov. 17, 2022, gave the government two years to proactively and automatically sequester all criminal records for simple drug possession of cannabis and other hard drugs.
Unlike cannabis, though, the simple possession of hard drugs like opioids, methamphetamine and cocaine remains illegal throughout most of Canada.
The only exception is B.C., which in January 2023 launched a three-year trial decriminalization project that permits residents to possess otherwise illicit drugs for personal use. (In April, the province partially reversed course on this project, obtaining Ottawa’s approval to recriminalize the use of hard drugs in public spaces.)
Individuals in most parts of Canada can therefore continue to face criminal charges for possessing hard drugs. And yet, individuals convicted of hard drug possession will have their criminal records automatically sequestered by the government.
In the case of convictions that occurred before Nov. 17, 2022, criminal records will be automatically sequestered by November. Convictions that occur after this date must be sequestered two years from the date of the conviction or the end of the person’s sentence.
Public Safety Canada told Canadian Affairs this record sequestration process will enhance public safety.
“Overall, this improves public safety through reduced re-offending and victimization,” Public Safety Canada spokesperson Noémie Allard told Canadian Affairs in a Sept. 16 statement.
“Removing the stigma of a criminal record … helps people who have completed their sentence to access housing, employment, education, and volunteer opportunities, which are key to their safe and successful reintegration as productive members of society.”
Exercise discretion
In practice, police have been laying fewer charges for hard drug possession in recent years. In 2021, 2022 and 2023, the number of criminal charges laid across all four categories of drugs — heroin, opioids, crystal meth and cocaine — declined.
This trend suggests police may be shifting their focus in response to the opioid crisis. Drug-related deaths climbed sharply during the pandemic years and have remained elevated ever since, prompting federal and provincial governments to prioritize health-oriented policies.
Thorburn, of the University of Toronto, says Ottawa’s criminal record sequestration law does not mean hard drug possession has been decriminalized.
It has long been common for police and prosecutors to exercise discretion in the course of their work, he says. And the sequestration of simple possession records, while automatic, takes place two years after a person is convicted or finishes serving their sentence.
“That is a far cry from decriminalization,” Thorburn said. “It is a way to allow those who have been duly convicted (and punished) to get back on their feet and start their lives again.”
Public Safety Canada told Canadian Affairs in August it expects to meet the Nov. 17 deadline for sequestering criminal records.
The department noted, though, that other levels of government may take longer to fulfill their requirements.
“Work being undertaken by provinces, territories and municipalities towards implementation continues, as many records are held within their jurisdictions and areas of responsibility,” Watson said.
Leave a comment