Skip to Content

Bill to Provide No-cost, Expedited Record Suspensions for Simple Possession of Cannabis

Second Reading

June 11, 2019


[21:28]

Thank you, Senator Simons, for the story you just told about Eddie Snowshoe. That was very powerful.

Honourable senators, I’m rising to speak at second reading of Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis.

As of many of you know, my first vote in this chamber was on the message back from the house on Bill C-45, 51 weeks ago. I’m pleased to join in the debate on a related piece of legislation today.

Statistics Canada, in their 2018 Cannabis Survey, identified that Canadians view cannabis as being less harmful than either cigarettes or alcohol. Yet the simple possession of cannabis for personal use continues to prevent those who happened to have been caught, charged and convicted from moving on with their lives.

A conviction for cannabis possession stigmatizes those individuals with a criminal record which, in turn, can prevent them from accessing housing, a job, or even a volunteer position. The cumulative effects of these barriers can create a cycle that becomes nearly impossible to break.

Research tells us that cannabis use across racial groups is fairly similar. Statistics Canada does not report on drug use by racial status, but many studies have, including a recent one of youth in Ontario that noted no significant difference in cannabis use across race.

However, there’s a very striking difference when we look at arrests for cannabis possession. A Toronto Star investigation in 2017 examined 11,000 arrests over a 10-year period where the individual was not on parole or probation, the individual was charged with possession of up to 30 grams of cannabis and police noted skin colour. Twenty-five per cent of those arrested were identified as being Black, even though Blacks only made up 8.4 per cent of Toronto’s population at that time. The Star noted that when compared to Whites with similar backgrounds, Blacks with no prior criminal convictions were three times more likely to be arrested for possession of cannabis.

Is that justice? The evidence clearly suggests not.

But that’s not where the discrepancies end. Of those charged with cannabis possession, Black people were the highest racial group to be detained for a bail hearing. Specifically, Black youth were four and a half times more likely to be detained for a bail hearing than White youth. Is that justice — no prior criminal convictions, similar backgrounds, similar rate of use, but three times more likely to be charged and four and a half times more likely to be detained for a bail hearing? That’s not justice in my books.

A 2018 examination of statistics gathered using access-to-information requests revealed similar racial inequities across the country. How can we be satisfied with a justice system that is so heavily stacked against those who are already marginalized?

In my own city of Halifax, the data show that African Nova Scotians are five times more likely to get arrested for cannabis possession than Whites. I cannot help but compare that disparity to the one found in the March 2019 Street Checks Report that examined police practices in Halifax. The author, Dr. Scot Wortley, from the University of Toronto, found that African Nova Scotian men in Halifax are stopped by police at a rate six times higher than Whites. That same report revealed that 30 per cent of Halifax’s Black male population had been charged with a crime, while the same was only true for 6.8 per cent of the White male population over the same period. The report noted that:

. . . the fact that Black males are so grossly over-represented in Halifax charge statistics is completely consistent with community allegations that police practices – including street checks – target Black males and contribute to their criminalization;

Cannabis possession arrests were used as an example in this report to further highlight the consequences of racial bias in police activity. We’ve already established that cannabis use is similar across racial groups, but this report concluded that:

. . . Black people in Halifax were 4.5 times more likely to be arrested for marijuana possession than their presence in the general population would predict;

Is this justice — similar rates of use but four and a half times more likely to be charged?

This important report offered one more crucial point:

Criminal charges can severely limit social, educational and employment opportunities and could further entrench the racial inequalities that are so much a part of Nova Scotia’s history.

This quote highlights the need for Bill C-93.

On a cynical day, it is said that the law and justice are only distant cousins. I don’t believe that anyone in this chamber is satisfied when that claim is supported by compelling evidence, but the data I’ve just cited suggests that this is a fair assessment as it relates to the racial inequities associated with the possession of cannabis for personal use.

It is the responsibility of this chamber to look out for those who are not being treated fairly under the law and to constantly strive to make our laws more just. We know that many Canadians live lives where the cards are stacked heavily against them right from the start. Some of our colleagues in this chamber have a very personal understanding of this reality. There are others of us, me included, who have been fortunate to travel on a much more forgiving road through their lives.

Colleagues, the bill before us offers one small step toward helping us right some of these wrongs.

I have enormous respect for our own Senator Pate. She has worked tirelessly on issues related to our justice and correctional systems for years. Three months ago, she introduced her own bill to deal with some of the deficiencies of our current criminal records system, Bill S-258, An Act to amend the Criminal Records Act. What became powerfully evident to me when Senator Pate introduced that bill, and through many other interactions with her, including discussions inside prison walls, is that a sentence does not end once time is served.

I found myself wondering if we as Canadians actually want a correctional system, or do we prefer a punishment system that clings to the individual, seeps into every aspect of their life and never, ever lets go? I very much aspire for us to have a correctional system that enables and empowers offenders to pay their debt and then rebuild their lives as law-abiding citizens. Instead, in the context of Bill C-93, we have a system where a single, non-violent offence becomes an anchor that must be dragged through every minute of every day for the rest of your life.

I believe in the intention of a correctional system, especially for non-violent criminals. Do we want people to be able to course-correct and to be empowered to rebuild a life and ultimately earn the right to move on from a mistake? I do, absolutely. Will it be a really tough goal to achieve? Absolutely, but that doesn’t mean we shouldn’t try to make careful and determined progress.

Most of us in this chamber grew up in the 1960s and 1970s. I’m willing to bet that more than a few of us were somewhat less than perfect as we traversed through those rather interesting times. Think back in your own life, or to that of someone you love, when considering whether we should judge others too harshly for a single mistake.

The question before us today is whether we are willing to study a bill that looks to suspend the criminal record of individuals who have done something that half of Canadians have done, that is no longer illegal and that is holding them back from volunteering at their kids’ schools or getting the job that could make them more productive. It just makes sense.

This is a very small, low-risk move forward. If they are convicted of another crime, the record suspension is revoked and unsealed, as Senator Dean said.

Personally, I think it’s unfortunate that there isn’t an easier way to help those currently burdened with the charge of simple possession of cannabis. At committee in the other place, it was suggested there should be a way of just “pushing a button” to erase these records. That would be similar to the approach taken in San Francisco, where an algorithm was used to clear the charges. However, we’ve heard from Senator Dean why this government decided to proceed with this more involved application-based system.

My first year in this chamber has persistently reminded me of a truism: Perfection is the enemy of progress. So my unequivocal support for this bill is not based on its perfection; it’s based on the fact that it begins to correct some injustice and provides us with a path that allows us to learn how we might expand on the careful use of pardons and/or expungements in the future.

As it’s implemented, I expect those involved to gather important evidence, help us to better understand the limitations of our current records system and explore a variety of approaches for managing record suspension and expungement in the future. My hope is that we can use the resulting insights in the next Parliament as we examine the types of measures proposed by Senator Pate in Bill S-258.

I believe Bill S-258 holds the promise of helping us to build a justice and correctional system that is designed in every way to enable and empower offenders to rebuild their lives as law-abiding citizens. That is the actual mission of the women’s sector of the Correctional Service Canada: to enable and empower offenders to rebuild their lives as law-abiding citizens. It is not, however, the current reality.

But that is not the bill before us now. What we have before us now is a much smaller step, but it is still a very clear step forward. I encourage all honourable senators to support the second reading vote and send Bill C-93 to committee for study.

As Senator Dean pointed out, we’ve already seen a pronounced difference in the stigma associated with cannabis. Let’s work to help those charged with simple cannabis possession, especially those racial minorities who have been unfairly targeted, to move on with their lives. Thank you.

Hon. Claude Carignan
[21:39]

Honourable senators, just over a year ago, the Senate passed the Cannabis Act at third reading. As you no doubt remember, I did not support the legalization of marijuana for a variety of reasons. It is interesting to note that, last Sunday, Bloomberg News reported that Canada “blew it” on cannabis legalization and is rapidly losing ground to the U.S.

The article in question reported that, according to the founder of one of the top investment bankers to the industry, a lack of policy innovation, a messy patchwork of provincial regulations and severe restrictions on marketing and branding have left Canadian pot companies eating the Americans’ dust. According to Neil Selfe, the founder and CEO of Infor Financial Group, Canada blew it.

I’m not the kind of person who says “I told you so,” but this article reminded me of the concerns that many of us raised during our study of Bill C-45 in committee.

I have always believed that simple possession of cannabis should be decriminalized. This was my position during our debate on the legalization of cannabis. Now that marijuana is legal in Canada, I still believe it makes sense that no Canadians should be unfairly burdened by having a criminal record for the minor offence of simple possession of marijuana, which is no longer an offence.

Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, will allow Canadians previously convicted only of marijuana possession for personal use to apply for a pardon through an expedited system.

This system waives the application fee, which is currently $631; waives the waiting period, which is five years for summary convictions and ten years for indictable offences; eliminates certain subjective criteria and allows people to apply even if they have outstanding fines.

We all likely know someone who has a record for marijuana possession. In many cases, this has had a detrimental impact on those looking for work, who cannot volunteer at their children’s school, who cannot find affordable housing, who have been denied entry into the United States.

Our Senate committees that studied Bill C-45 heard testimony of Canadians denied entry into the United States for admitting to using marijuana. Many of us heard the well-known case of Ross Rebagliati, including the Standing Senate Committee on National Security and Defence.

Mr. Rebagliati won a gold medal in snowboarding at the Nagano Winter Olympics in Japan. Since admitting on the Jay Leno show that he had consumed marijuana, Mr. Rebagliati has had to apply for a waiver to enter the United States.

Most Canadians who admit to consuming marijuana obtain a waiver that is valid for one year, then one that is valid for two or perhaps three years and, finally, a waiver that is valid for five years.

Mr. Rebagliati was issued a five-year waiver because he made his admission 20 years ago. For the past 20 years, Ross Rebagliati has had to apply for waivers at a cost of $585 U.S. each time.

Some of you may remember that in its report on Bill C-45, the Cannabis Act, the Standing Senate Committee on National Security and Defence recommended that the government present to Parliament a plan to protect Canadian travellers at the border.

This plan was to include measures envisaged by the government to minimize the impact of Bill C-45 on the flow of travellers and goods at the Canada-U.S. border.

In addition, the plan would have explained how the government intended to approach negotiations with the United States to ensure that Canadian travellers were not denied entry into the United States because they consumed cannabis or participated in any other activity that became legal once Bill C-45 was enacted.

However, no plan was put in place after cannabis was legalized, and we see the consequences of that every day.

For example, we heard about a Canadian investor who, after travelling to Las Vegas, Nevada, in November 2018 to attend an annual cannabis conference and tour cannabis facilities, was denied entry into the United States for life. Canadians may continue to experience problems at the U.S. border and be denied entry for life because they smoked marijuana. I see that as an important issue to address.

With respect to Bill C-93, I believe we should expunge the records of Canadians convicted of simple possession of cannabis. Expunging records would remove barriers to employment and housing. That is very important, particularly for marginalized individuals who have a hard time accessing basic necessities.

Although I support this bill, I fear that it hasn’t been the subject of sufficient reflection. First of all, I think it creates an overly bureaucratic process, given that applicants will have to present documentation to the Parole Board of Canada to obtain a criminal record suspension and to prove their eligibility for the expedited process. On top of that, they will have to provide their fingerprints in order to confirm their identity and they might be forced to obtain documents from local courts or police services, for a fee.

Although the bill explicitly states that the application for the suspension does not carry any fees, unlike the ordinary for-pay record suspensions, it seems that Canadians will still be forced to pay certain sums to other organizations.

I’m actually concerned about the cost of Bill C-93 for taxpayers. The Minister of Border Security pointed out that as many as 400,000 people could have criminal records for simple possession. However, the government expects only about 70,000 to 80,000 of them to be eligible to the program.

For example, someone who has a criminal record for simple possession as well as another kind of offence would not be eligible to the program. Bill C-93 is intended only for individuals who have been charged with simple possession. The Minister of Border Security has indicated that it will cost approximately $2.5 million for some 10,000 applicants. I don’t think taxpayers should have to foot the bill for that.

When I look at what other states have in place, for instance, the State of California seems far more innovative than what is proposed in Bill C-93. California has brought forward a program called Clear My Record through Code for America. It is a computerized program that allows for the expedient removal of simple criminal code records, such as the simple possession of marijuana. It is a free online tool that assists people in California to navigate the complicated process of clearing their records. People can fill out a short application online, and it typically takes ten minutes to get connected to a legal authority. This kind of innovative approach is seen in stark contrast to what is proposed in Bill C-93.

I was disappointed that an amendment put forward by my colleagues in the other place that would have allowed the Parole Board of Canada to process the applications electronically using a modernized system was rejected by the government. Instead, it’s now a report recommendation:

a. That the Parole Board of Canada, which has a mandate to deliver services quickly, effectively and efficiently, use technology to enable them to better serve Canadians;

I would think, in our age of electronic data, these records of criminal convictions for simple possession of cannabis can be located by the Parole Board of Canada and identified for action. Moreover, since the government introduced Bill C-93, many have criticized the bill for not going as far as expunging records. A record suspension literally “suspends” the record and keeps the record separate and apart from criminal records. It does not destroy the record.

The minister retains the authority to approve the disclosure of a criminal record provided that the minister is satisfied that “the disclosure is desirable in the interests of the administration of justice or for any purpose related to the safety or security of Canada or any state allied or associated with Canada.”

A criminal defence lawyer told the House of Commons Standing Committee on Public Safety and National Security that Bill C-93 is “deeply flawed.” He said, and I quote:

I should first note that Bill C-93 is better than nothing. But better than nothing is a mighty low bar for our Parliament. You can do better. You must do better. Instead, I would urge a scheme of expungement along the lines already provided for in the Expungement of Historically Unjust Convictions Act.

According to Senator Dean, expungement could be problematic for people who have to provide a copy of their criminal record. For example, a Canadian with a criminal record for possession of marijuana who is refused entry to the United States and does not have a copy of their criminal record or the means to get one because the record was expunged could have a hard time applying for a waiver.

However, I believe that this aspect merits closer review, and I am not convinced that the government gave it all the attention it deserves.

In closing, now that marijuana is legal, I think we can all agree that it is important to give people a chance to turn the page on their criminal record. I invite the committee tasked with studying Bill C-93 to be mindful of its flaws and to correct them in the best interests of Canadians.

Thank you.

The Hon. the Speaker
[21:52]

It was moved by the Honourable Senator Dean, seconded by the Honourable Senator Bellemare, that this bill be read a second time.

Is it your pleasure, honourable senators, to adopt the motion?

The Hon. the Speaker
[21:53]

All those in favour of the motion will please say “yea.”

The Hon. the Speaker
[21:53]

All those opposed to the motion will please say “nay.”

The Hon. the Speaker
[21:53]

In my opinion, the “yeas” have it.

The Hon. the Speaker
[21:53]

I see two senators rising. Do we have agreement on a bell?

The Hon. the Speaker
[21:53]

The vote will take place at 10:53 p.m.

Call in the senators.

Motion agreed to and bill read second time on the following division:

YEAS

The Honourable Senators

NAYS

The Honourable Senators

ABSTENTION

The Honourable Senator