Ottawa is facing a looming fall deadline to effectively expunge the criminal records of thousands of Canadians who were convicted of simple cannabis possession back when it was illegal.
Although Ottawa has had a process in place to enable Canadians to apply for cannabis-record suspensions for nearly five years, the process has been little-used. This has left many Canadians with criminal records that affect their ability to secure housing, find employment, volunteer with organizations and travel.
“The existing process … doesn’t serve very many Canadians at all,” said NDP Justice Critic Randall Garrison. “Only those who are the most privileged, with the most access and money have been able to get those records wiped out.”
But legislation sponsored by Garrison and passed in 2022 put the onus on the government to remove these convictions. Ottawa now has until Nov. 17 to ensure criminal records relating to simple possession convictions do not show up in most database searches.
Little uptake
Shortly after the Trudeau government legalized cannabis possession in 2018, the government introduced a streamlined cannabis-record suspension process. The process enabled individuals to apply, at no cost, to have their criminal records set aside in the Canadian Police Information Centre database.
Unlike a full pardon, a record-suspension — or sequestration — does not erase a conviction. But it restricts who can access it in the database, significantly reducing the social consequences of having a criminal record.
“[Record sequestration] is only for crimes that are for the most part not crimes anymore, when you’re talking about marijuana, and secondly, which don’t have a victim,” said Garrison. “For simple possession, the only person who is involved in any possible harm is the substance user, and no one else in society.”
The government initially predicted its cannabis record-suspension process would provide amnesty to 10,000 Canadians. However, the Parole Board of Canada received just 1,347 applications for cannabis-record suspensions between Aug. 1, 2019, and July 2, 2024. Only 861 of these led to record suspensions.
“The most common reasons why applications for cannabis-record suspensions are returned as ineligible or incomplete are that applicants cannot demonstrate proof that the substance was cannabis, or they have additional convictions on their criminal record besides those for simple possession of cannabis,” said Marie-Lynne Robineau, a spokesperson for the parole board, in an emailed statement.
“Applicants who have additional convictions beyond simple possession of cannabis may still apply for a record suspension but through the regular processing stream,” she said, referring to the processing for applying for record suspensions for other criminal convictions.
The justice reform legislation that Garrison introduced in 2022 aimed to address the perceived limitations of the record-suspension process. Bill C-5, which received royal assent in November 2022, mandated the government to proactively sequester all cannabis possession records within two years.
The Liberals insisted on records being sequestered in the database, rather than fully expunged, as the NDP had proposed, Garrison says. But the effect is the same.
“As long as we accomplish the same thing,” he said, emphasizing the impact a “cleared” criminal record can have for people seeking housing, employment, the freedom to travel internationally and other civic opportunities.
“Most frequently, for my office, [drug possession records] prevent people from participating as coaches in their kids’ sporting activities,” he said.
Prosecutorial focus
One possible concern with the new record-suspension policy is that some individuals who have a record for simple cannabis possession may have received that charge as part of a plea bargain to avoid more serious charges.
“Some of those convictions for simple possession were charges that were bundled with other charges, or charges that were the result of plea deals,” said Toronto-based criminal lawyer Stephanie DiGiuseppe. “So, [for example,] a person being charged with possession for the purpose of trafficking, and pleading guilty, ultimately, to simple possession.”
It is not clear how many simple possession convictions stem from simple possession alone, particularly for cannabis.
“In Toronto, I would confidently be able to say that, prior to cannabis legalization, there was not a strong prosecutorial focus on prosecuting simple possession of cannabis charges,” said DiGiuseppe.
DiGiuseppe notes, though, that it is not the prosecutorial norm to permit plea bargains for harder drugs.
“When prosecutors make a decision to offer a plea for simple possession of cocaine, for example, and to withdraw a more serious charge of trafficking or possession for the purpose [of trafficking] … that decision is approached with a very high level of scrutiny,” she said.
It is also not clear whether most Canadians who still have outstanding criminal records relating to drug possession are aware that the mark on their record is about to be cleared. Garrison says the government has not been clear about how they plan to notify people.
“What I asked them for, at minimum … is a broad public education campaign to let people know that those simple possession records are disappearing,” he said.
“The people who need to hear about this the most are the most marginalized, and they’re the least likely to find out that this change has taken place.”
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