Annamaria Enenajor is a litigator at Toronto’s Ruby Shiller Enenajor DiGiuseppe, Barristers, where she practices criminal defence, regulatory, constitutional and civil law. She is the founder and executive director of the non-profit Cannabis Amnesty.
In late may, Health Canada approved a three-year pilot project in British Columbia that will effectively decriminalize the possession of small amounts of drugs, like opioids, MDMA, methamphetamines and cocaine, in the hopes of curbing overdose-related deaths. The program takes a more compassionate approach to addiction than the punitive one favoured by governments in the past. This decision makes me feel hopeful much in the same way as I did four years ago, just before cannabis was legalized. Back then, the Trudeau government said it intended to adopt a similar public-health approach to the drug. I thought, This is a wonderful opportunity to undo all the harms that have been caused by criminalization. But when I got around to reading through the Cannabis Act, I was disappointed to see that it made no effort to address the unequal enforcement of cannabis law among racial groups. It also left past possession convictions intact—for everyone—when those convictions should have been eliminated altogether.
The news was all about stocks, speculation and how much money would be made in the forthcoming green gold rush. I wanted to say, “Well, this is actually a piece of criminal legislation.” In advance of legalization, I worked with friends and activists on an awareness campaign designed to take focus away from profit and return it to the lives that had been destroyed or put on hold because of cannabis-related criminal convictions. In April of 2018, we founded Cannabis Amnesty, which began as a petition project to push the government to expunge the records of all individuals with cannabis possession convictions. We’re still working on it.
A charge of simple possession means that a person had drugs on them, but no intent to traffic. Even after legalization, the consequences of having this conviction on one’s record are huge: people can’t get jobs, can’t take out loans, can’t volunteer for their kids’ soccer teams and can’t cross the border. In cities like Ottawa, where police services offer “crime-free multi-housing” programs, a prior cannabis conviction can prevent someone from qualifying to live in certain public-housing properties. The Prime Minister himself admitted to using cannabis while he was a sitting member of Parliament and faced no punishment. Meanwhile, my clients’ lives—and the lives of thousands of Canadians—continue to be disrupted by crimes of the past.
Canada has taken some positive steps toward righting this wrong: in 2019, thanks to Bill C-93, the federal government began allowing those with a criminal record for simple possession of cannabis to apply for expedited record suspensions, or pardons. (As of March, 852 applications had been submitted to the Parole Board, and only 536 suspensions were issued. An estimated 250,000 Canadians have convictions for cannabis possession.)
Bill C-5, which cleared the House of Commons in June and will be studied in the Senate this fall, is a step in the right direction. It would remove mandatory minimum sentences for a number of drug offences, and would automatically sequester records related to all simple possession convictions two years after the passage of the bill. This could be good news for hundreds of thousands of Canadians, and is in the same general vein as what I’m proposing—but it doesn’t go far enough.
There is a difference between these proposed pardons and full expungements. A pardoned offence—while not visible on, say, a background check done by an employer—can still be reinstated by the Parole Board of Canada in certain cases. Bill C-5 offers free and automatic pardons, but it is not a permanent wipe.
What I’m proposing is true amnesty, which means the deletion of all criminal records relating to simple cannabis possession offences, at no cost and with no application. Even with recent fee reductions, down from $631 to $50, pardon applicants are also still required to pay for the ancillary costs associated with their applications. This includes paying to get their fingerprints taken, ordering certified copies of court documents and undergoing local police checks, all of which can cost up to $250, depending on the jurisdiction.
To make these expungements happen, our system for storing and retaining criminal records requires a major overhaul. These records are not contained in a single database, which is a major problem. Some are kept locally and some are kept provincially. Some are stored electronically and some are scattered among boxes in warehouses. Others are available to the American government via the Canadian Police Information Centre, which is our national repository of all criminal information. In fact, for most Canadians, the worst consequences of lingering simple possession charges relate to travel. A Canadian pardon means nothing to the American government; you’re still a criminal in its eyes. Expungements would, of course, eliminate the need for this consolidation—but you can’t delete something if you don’t first know where it exists.
Cannabis amnesty is also a gateway to broader reforms in the criminal justice system. In 2015, when I started working in criminal defence, I noticed that law enforcement treated a lot of my Black clients—particularly Black men—much more harshly for possession and consumption of cannabis than clients who were white. Police officers have a lot of discretion in how they handle drug cases, particularly for “victimless crimes,” like people enjoying cannabis on a medicinal or recreational basis. Cannabis use is relatively equal across racial groups. Yet in Halifax, for example, Black people were four times more likely to be charged, pre-legalization, than white people for cannabis possession; in Vancouver, Indigenous people were nearly seven times more likely. Outcomes within the criminal justice system are not just about individual actors and their individual responsibilities for individual acts. They are also the result of historical, political and socioeconomic realities—especially in the case of drug crimes.
The existence of new legislation like Bill C-5 shows that people are starting to question the way we think about drugs. We used to see addiction as a failure of character. Reality is much more complicated than that. Many substance users are dealing with mental illnesses that are genetic in nature. Some are reckoning with childhood abuse or sexual and gender identity issues that they are unable to process in hostile environments. In the past couple of years, we’ve been forced to look at the legacy of colonialism and how it’s created trauma that is too difficult for communities of colour to bear. I think we’re heading toward a point where, when we see someone dealing with an addiction to drugs or alcohol, our first question isn’t “Why the addiction?” but rather, “Why the pain?”
Judges and lawyers see the same people— and the same addictions—in and out of the same courtrooms day after day. It’s clear that we can’t fix everything with criminal law, and we need to stop trying to, with cannabis or any other drug or socio-economic issue. People don’t deserve to be punished in perpetuity for something they’ve already served time for, and in the case of cannabis, something that is now legal. We should clear these records. And now is the moment.