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

Third Reading

June 19, 2019

Hon. Tony Dean [ + ]

Moved third reading of Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis.

He said: Honourable senators, I rise today to speak at third reading to Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis.

Before I get into that, I want to thank Senators Colin Deacon and Marty Deacon, who both worked alongside me. I want to thank all the leaders in the Senate for their considerable role in agenda planning that has allowed us to get here this evening.

I want to thank Senator Carignan, the critic who has applied his extensive legal and parliamentary skills and knowledge to this bill; the chair of Standing Senate Committee on Legal and Constitutional Affairs, Senator Joyal, his steering committee and members of the committee for going the extra mile in considering the bill expeditiously. I also want to thank Senator Pate for her contributions. We know that we have a foremost Canadian expert on those — and particularly women — who are marginalized, victimized or incarcerated.

As stated last week in my second reading statement, the objective of Bill C-93 is to allow individuals affected by simple cannabis convictions the option of shedding the burden of stigma as well as eliminating barriers to meaningful employment, education, housing, the ability to volunteer in their communities and having a greater ability to travel.

Under this important legislation, individuals who have been convicted of simple possession will be able to apply for a record suspension or pardon free of the $631 application cost and also of the five- to 10-year wait times. It’s also important to note that there would be no subjectivity to this process. Once all of the required documentation is provided to Parole Board, the applicant would be granted a record suspension regardless of other assessment criteria used for regular pardons applications.

The proposed pardon process under Bill C-93 will be a simplified and expedited version of the existing pardons or records suspension process that has been in place for many years and it recognizes the tens of thousands of people who have been unfairly convicted of possessing a substance that is now legal and strictly regulated in Canada.

This applicant-driven process would allow individuals to apply for a record suspension as long as they have completed their sentence and where the only conviction on their criminal record was simple possession of cannabis. Simple possession generally refers to a criminal charge for possession of controlled substance, in this case cannabis, for personal use with no intent to traffic.

Due to an important amendment at the House of Commons, individuals could still apply even if they have outstanding fees associated with their conviction. This amendment, in addition to several others adopted at the House of Commons Public Safety Committee, would help those who may be disadvantaged or vulnerable to be eligible to apply for a record suspension under Bill C-93.

Last Thursday, the Standing Senate Committee on Legal and Constitutional Affairs heard from the Honourable Ralph Goodale Minister of Public Safety and senior officials from several departments on the policy objectives and the practical application of this legislation, should it be adopted. The minister testified that this initiative is intended to assist individuals who have been convicted of simple cannabis possess in their rehabilitation, and to help those people lead productive lives in our society.

During his testimony the minister stated that:

It’s a question of fairness. It’s a question of faster reintegration into the mainstream of society. It’s an objective of trying to make sure - especially with respect to marginalized groups upon whom there was a disproportionate impact of the old cannabis law - that they are treated fairly and appropriately.

This is an objective shared by many cannabis amnesty advocates, including representatives from the Canadian Black Lawyers Association, the Canadian Bar Association and the Campaign for Cannabis Amnesty.

During his testimony at committee, Mr. William Thompson of the Canadian Bar Association said that:

The CBA has long advocated a harm-reduction approach to drug use — one that relies on health care, treatment options and careful regulation rather than criminal prohibition to save lives and reduce the harms to users and the broader community. Reducing the continuing barriers to people, moving their lives on from these convictions is an important step in that approach. In fact, the section would support an automatic process to expunge simple possession convictions from people’s records, but it recognizes there may be practical impediments to that approach . . .

Colleagues, in addition to this testimony heard at Standing Senate Committee on Legal and Constitutional Affairs on Monday, we also heard from Senator Carignan and Senator C. Deacon on expedited pardons last week. Based on their statements and those made from other honourable senators in committee, I think it’s safe to say that senators and expert witnesses alike are of the same mind on the objectives that Bill C-93 is trying to achieve. Many senators in this chamber, regardless of political stripe, would likely agree that the government should be doing more to recognize the injustices imposed by simple cannabis possession and especially those who are indigenous, racialized or living in vulnerable communities.

Many of us would likely want to see a more automated pardon process for those convicted of simple cannabis possessions.

In his speech last week, Senator Carignan referenced a program in California for 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 cannabis.

I completely agree that we should be looking to other jurisdictions and programs to inform how our government might address injustices associated with cannabis possession. However, I also recognize the difficulty in implementing a similar measure here in Canada in the near future.

Officials have been clear that while a more automated process is desirable, it will be challenging and will require considerable lead time measured in years. The challenge is that currently — and many of you know this — we have a vast, complex and widely distributed constellation of often paper-based records, with others likely stored on various forms of storage media that have constantly changed over the last decade or two. If your basement is like mine, I could describe my records in exactly the same way.

As a result, it’s not possible to electronically process pardons for all of those having simple possession charges. This would require the digitization of the hundreds of thousands of legal documents dealing with drug possession charges. The process of consolidating data across jurisdictional boundaries would require data sharing agreements and maintaining compliance with varying jurisdictional privacy codes. As a result, there is no fast route to automation, as desirable as that is.

The automated pardons and/or expungements preferred by many would take years and millions of dollars to realize and is best done in the context of broader justice system reforms. The Standing Senate Committee on Legal and Constitutional Affairs makes some very strong observations on this point.

Honourable senators, we have to focus on what we can reasonably do in the meantime. I believe Bill C-93 answers that question. We are all obligated as parliamentarians to ensure members of our communities are allowed equal participation in our society. We want to empower those who are disadvantaged because of their simple cannabis possession convictions so they too can access better jobs, appropriate housing and so they can volunteer and expand their travel opportunities.

I have no doubt that we as senators will continue to press for system reforms in the coming years and we have an opportunity to move closer towards those reforms today with Bill C-93.

Honourable senators, Bill C-93 is not perfect but as Senator Sinclair said last week, perfection can be sometimes the enemy of the good. I would encourage you all to join me in voting in favour of Bill C-93 so that we can help those carrying the burden of minor cannabis convictions to shed the stigma of criminality and participate equally in contributing to our society and their own well-being.

Honourable senators, I rise today to speak to Bill C-93, an Act to provide no-cost, expedited record suspensions for simple possession of cannabis.

Let me begin, however, by saying I’m starting to enjoy this tradition. For me, there is no surer sign that summer is around the corner than Senator Dean compelling us to pass legislation dealing with cannabis.

Colleagues, like last time, it is his thorough and well-reasoned arguments that are bringing me around in my thinking. Though I voted in favour of Bill C-45, I started off with a great deal of apprehension. Of the many hats I have worn if my pre-Senate life, two of the most important were that of an educational leader and a coach of young people from playground to podium. Of the groups who not be touching cannabis, students and athletes rank pretty high on my list. I worried that legislation would normalize its use yet, as I listened to the debate, I realized our laws at the time were doing nothing to stem access to cannabis or limit its consumption. I came to the conclusion that the consequences we had in place were, in fact, more damaging than the substance itself, and that we try a different approach.

The bill we have before us today is a natural extension of this. When and if we pass this legislation, we will be undoing some of the damage created by old laws.

As someone who worked —

The Hon. the Speaker [ + ]

I’m sorry, Senator Deacon, I apologize for having to interrupt you, but it’s now 6 p.m. Pursuant to rule 3-3(1), I’m required to leave the chair unless there is agreement that we not see the clock.

Is it agreed that we not see the clock, honourable senators?

As someone who worked extensively with youth, I know that even intelligent, thoughtful people can make impulsive, poorly thought out choices. I’ve done more locker, backfield and backpack searches than I care to count. Trust me when I tell you that 99 per cent of these cases where cannabis was found, these were good students and athletes who made a poor choice.

I would hate to think they can get held back because they were charged with a crime that no longer exists.

Moreover, colleagues, our old laws were not uniformly applied. As you were reminded at second reading, racial minorities bore of brunt of enforcement, burdening them further in a system that is already tilted against them. I won’t repeat all of what my colleagues said, but let me remind you of at least some of what researchers have found. One study showed that between 2015 and 2017, Indigenous people in Regina were nearly nine times more likely to get arrested for possession than White people. In Toronto, Black people with no criminal convictions were three times more likely to be arrested for possession. That, colleagues, is why initially I didn’t think this legislation went far enough.

I thought we ought to go further, to instead provide for record expungement. As we know, a pardon doesn’t necessarily wipe the slate clean. For instance, some employers do not ask if you have a criminal record, but instead ask if you pled guilty to a crime. Even with a record suspension, you would have to say yes, you have pled guilty. More often than not, this would mark the end of the hiring process for that individual.

I honestly wrestled with this for a while, but after personal reflection and thorough discussions with my colleagues, I have come around to supporting this legislation as written. I have a few reasons for this. As you are aware, expungements were created only a few years ago for a select group of Canadians. These were individuals who ran afoul of the discriminatory laws dealing with consensual same-sex activities. Like many of you, I have friends and loved ones who count themselves as part of the LGBTQ2 community. I recognize historical importance of granting these expungements. It says that these laws should never have been on the books in the first place.

I believe expungement should be reserved for cases like this. For when someone else’s rights were violated, it says to them they were never actually committing a crime. Possession of cannabis was and is a choice — being gay is not — and I’m not ready to equate laws against cannabis with something like the archaic buggery law.

There is also the message expungements could send to Canadians. I remind my colleagues that while Canada has legalized cannabis, we only did so in a strict set of circumstances.

You will recall that the Senate sent back Bill C-45 with a number of amendments to clauses the majority of us deemed too harsh. The government rejected them. For instance, under current law, an 18-year-old could face up to 14 years in jail for passing a joint to their friend beside them who is 17, even if they are only months apart in age.

I believe the headliner reading “pot convictions expunged” could send the wrong message, that our current laws are more permissive than they actually are. There are still many ways to get a record for a cannabis offence today, and all Canadian must be mindful of this.

As Canadians become more comfortable with the legislation, I trust that laws will be loosened in time. They will get to a point where we scratch our heads, yes, we scratch our heads, that cannabis was ever illegal in the first place. We are not there yet.

On cannabis, the dial has moved but the pendulum has not swung entirely. That’s why incrementalism is necessary here. As Senator Deacon, the other Deacon, so aptly put it in second reading, perfection is the enemy of progress. This bill captures that sentiment.

I also note that while the government is only offering pardons, it is aiming to expedite the process in this case. The legislation would do away with both the application fee and the five- to ten-year waiting period typically required for a pardon.

At committee, the minister said that the parole board is looking to simplify the process further, to perform outreach via social media and other mediums to make Canadian aware that this is there for them and to get them started in the process.

That’s not to say that I’m thrilled with how the government approached this bill. We only received this legislation a few weeks ago. As I mentioned at the outset, we’re running on days in this session. Were it not for the tireless effort of the bill’s sponsor and the Legal Affairs Committee, we might not even have it here at third reading today.

With more time and thought, we could have had a chance to possibly add to and improve this bill, to make sure that the process of applying for a pardon was as seamless as possible. Perhaps even more middle ground between a pardon and an expungement that we could have explored. But I’m afraid an amendment at this stage would kill the bill. I would rather see Canadians be provided with at last some kind of avenue to clean up their past and move forward with their lives.

Colleagues, today, in the interests of its speedy passage, I’ll stop here. It is my intention to vote in favour of the bill before us. I encourage you to do so as well. Thank you.

The Hon. the Speaker pro tempore [ + ]

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

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to and bill read third time and passed, on division.)

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