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.