A petition supporting automatic expungement for Canadians living with nonviolent cannabis convictions will soon be heard in the House of Commons

The tweet from Justin Bieber’s dad arrived too late.

Just past noon on April 19, a petition initiated by Toronto-based cannabis lawyer Russell Bennett closed with 301 signatures. The petition asked the federal government to redress the harms of 95 years of cannabis prohibition by acknowledging that the plant never should have been criminalized in the first place and grant expungements to Canadian convicted of cannabis offences.

If the petition had gained 500 signatures, the government would have been required to table a response.

The tweet, which sent a link to the petition to Bieber’s 2.1 million followers, was shared a day late.

For his part, Bennett is undeterred about coming up 199 signatures short. He plans on reposting the petition again soon. In fact, the same day his petition closed, another began. Its request? Automatic expungement to all Canadians living with nonviolent cannabis convictions.

One of the promises of legalization was the opportunity to rectify the legacy of prohibition and laws that had been unevenly applied, particularly in minority communities.

In the lead-up to legalization, the Liberal government had said as many as 250,000 Canadians may be eligible for pardons for past simple possession convictions, though other estimates put the number closer to 500,000. Support for cannabis pardons was also shared across party lines. While the Conservatives largely voted against cannabis legalization, with one exception, former leader Andrew Scheer said the party supports cannabis pardons.

In 2019, the federal government passed a law, Bill C-93, that expedited the pardon process and waived the previous $631 application fee. Since that bill took effect, less than 300 Canadians have received a pardon for simple possession.

As other jurisdictions move forward with cannabis reform, clearing previous charges has become a priority. Take New York, for instance. The state legalized cannabis last year and convictions for some cannabis-related offences, including possessing up to 16 ounces or selling up to 25 grams, are now eligible for automatic expungement.

Other U.S. states that have legalized cannabis, including New Jersey, New Mexico, Connecticut and Arizona, also offer expungements, though the process for each state, and which convictions are eligible for expungement, varies.

Last month, the U.S. House of Representatives passed a bill, the Marijuana Opportunity Reinvestment and Expungement Act, which would legalize cannabis at the federal level and establish an expungement process for prior cannabis convictions.

Despite the fact that expungement has never been on the table in Canada, increasingly, consumers are calling for a similar approach.

“I’m trying to make it as easy as possible for anyone with a criminal record from a cannabis offence, under the old law, the Controlled Drugs and Substances Act, to receive an automatic expungement,” Bennett says.

“If you have a record from one of those offences, you’re automatically forgiven. That’s it.”

Though C-93 waived most of the associated fees and sped up the process, it’s not automatic. Documents still need to be collected and filed. Fingerprints need to be submitted. The information needs to be obtained in the city where the conviction occurred, so in some cases, travel and related expenses are incurred.

Beyond that, only those with simple possession charges are eligible for a pardon.

“What if you were caught growing plants? Or you were caught distributing or selling? Those people should have expungements as well, I think, because that law doesn’t exist anymore,” Bennett argues.

While he admits those activities can still lead to criminal charges if not conducted within the bounds of the Cannabis Act, he adds it’s a completely different piece of legislation, with a different set of punishments and definitions.

“The government created the offence. The government has rescinded that offence and acknowledged that those offences didn’t work. It’s the government’s responsibility to alleviate all the victims and give them complete expungements automatically,” he argues.

Pardons vs. expungement

While pardons seal and remove the conviction from the national repository of criminal records, the record is not destroyed, and the charges can be reinstated by subsequent government or a parole board and accessed by some police and government agencies.

With expungements, the record is destroyed and can never be reinstated.

“In my view, only full amnesty and expungement recognizes the disproportionate impact of Canada’s prohibition on visible minorities, and the fact that cannabis should never have been criminalized in the first place,” argues Nathaniel Erskine-Smith, a Liberal MP for Beaches-East York who authorized Bennett’s petition.

Erskine-Smith supported C-93 in the House but also argued the government had to go further.

“I support Bill C-93 for moving in the right direction, but we should do what is right when we have the opportunity. We should correct this injustice,” he said in the House of Commons in May 2019.

During that address, Erskine-Smith also took the opportunity to commend Murray Rankin of the NDP for introducing Bill C-415. A private member’s bill, C-415 called for establishing a procedure for expunging certain cannabis-related convictions. The bill was later defeated.

“It is beyond disturbing that the Liberal government is only doing the bare minimum for people with criminal records for something that is now perfectly legal,” Rankin later stated.

“Not only is the government refusing to expunge records, they are proceeding with an application process they know to be ineffective.”

Erskine-Smith doesn’t disagree that the government’s approach to pardons has been largely unsuccessful.

“The process that has been put in place has failed to do the job that it set out to do,” he says. And while he supports expungements, he’s not sure that the federal government has changed its outlook.

“I don’t think we yet have the government in a place where they’re willing to acknowledge that the law never should have existed or to acknowledge the racist history of the laws, or the racist application of the laws,” he says.

“If you really track down the history of cannabis laws, we fear different drugs today because we used to fear different people.”

‘Our roots live with the legacy market’

The petition that began on April 19 has now amassed more than 460 signatures and is well on its way to surpassing the 500 threshold before it closes on May 19.

The petition was initiated by Claudia Palacios, who works for Toronto-based cannabis producer Flowr as the company’s digital experience manager.

Palacios says the company’s roots trace back to the legacy market and a few of the company’s earliest employees went through the pardon process.

“We know firsthand what a pardon can do. And we know, as well, that a record expungement could achieve even more,” she says.

Last year, the company initiated a similar petition on Change.org, asking the Canadian government to expunge criminal records for non-violent cannabis convictions that are now legal under current laws. It amassed more than 3,200 signatures but, since it wasn’t a House of Commons petition, didn’t receive a government response.

“That’s kind of what drove us to do it again this year,” she says.

“We truly believe in this and want to help drive that change.”

Supporting that petition is Matthew Green, an NDP MP representing Hamilton Centre.

Green argues that the barriers created through cannabis criminalization, in terms of job prospects and other social challenges that accompany a previous conviction, impact not just the individual, but have broader implications on their families and communities.

“The outcomes of this particular policy have failed, in my opinion,” he says, adding that the legalization process brought with it “a disproportionate advantage to some communities and a lack of any real movement for others.”

“I think that it’s a part of basic justice that we go back and expunge, not just pardon, but actually expunge the criminal records of people who were caught for these nonviolent offences,” he says.

As for the federal’s government position on the topic, Canadians should soon learn where they stand. Green is confident the petition will surpass the number of signatures required to be heard in the House of Commons.

“One of the unique things about petitions and why I’m very active in supporting petitions from all different topics and communities is because it forces the government to respond,” he says.

“Many people feel so disconnected from the process of government. This allows them to be heard.”