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Criminal lawyer says pardons for pot possession don't go far enough

Powered By Canadian LawyerCriminal||Written By Aidan Macnab
Criminal lawyer says pardons for pot possession don't go far enough
Eric Gottardi, senior partner at the criminal boutique Peck and Company in Vancouver, says that the Liberal government should simply make the changes to the parole system said they would.

The federal government plans to pardon all those convicted of possessing up to 30 grams of cannabis, as Oct. 17 marks the first day in the era of legal Canadian cannabis.

Public Safety Minister Ralph Goodale announced today that the fee of $631 for gaining a pardon and the waiting period will be waived. He said the barrier to jobs, education, housing and volunteer work will be no more.

While a record suspension hides the conviction record, it does not erase it. NDP leader Jagmeet Singh called for a complete expungement of criminal records. NDP justice critic Murray Rankin tweeted that marijuana convictions fell disproportionately on Indigenous people and racialized communities, a “deep historical injustice.”

Eric Gottardi, senior partner at the criminal boutique Peck and Company in Vancouver, says the Liberal government should simply make the changes to the parole system it said it would.

“Really, it would be much more preferable if they simply reform the system like they said they were going to do when they were elected, but they haven't done [it] yet,” he says.

“We'd really like to see the Liberals make the changes that they promised in the pardon regime overall, rather than just simply focus on people with marijuana convictions,” he says.

In March 2012, the Conservative government passed Bill C-51, which increased the wait to five from three years for those seeking pardons for summary offences. The time span for pardoning indictable offences became 10 years, raised from five. The Conservatives changed the name of a pardon to “record suspension.”

There are two mechanisms by which the federal government can provide a criminal conviction pardon — applying to the parole board or the Royal Prerogative of Mercy, says Gottardi. Providing a Royal Prerogative with those convicted of cannabis convictions as a class would be one option for the government to achieve its pledge quickly.

The Royal Prerogative of Mercy is given through the governor general on the recommendation of a minister of the Crown.

With the Trump administration’s strict border policies, there is currently a great demand for pardons in Canada.

“There's certainly great interest in getting pardons,” Gottardi says. “People with even minor possession convictions have realized or have known for a while that even those convictions or even mentioning the use of marijuana can have you banned from the States. So, people are very interested in getting pardons for those offences.”

While travelling to the U.S. is a primary incentive for seeking a criminal pardon, Alain Hepner, a criminal lawyer in Calgary, says a pardon from the government for a cannabis conviction is not necessarily going to get you past U.S. customs.

“It’s not going to affect any entry into the U.S.,” he says. “I’ve had so many clients with pardons. In fact, sometimes, they apply for a pardon and it triggers issues with Homeland Security.”

One client had a 20-year-old marijuana conviction, applied for a pardon in order to do volunteer work at her child’s school and that process alerted U.S. Homeland Security and the next time she tried to go south of the border she was denied entry.

The current process for getting a pardon takes between 18 months and two years for his clients, Hepner says.

“Clients never complained so much about the fee,” he says. “What I find, it’s the process that’s cumbersome; it’s just mired in paper and regulations and requests. I avoid it if I can because you don’t get anywhere. You can’t seem to close the file.”

Hepner says he is skeptical of Goodale’s promise of no wait period.

“There is a wait period. They have to confirm the record. They have to confirm the name. They have to confirm with fingerprints,” he says. “They’ve got to confirm that they are pardoning the right guy.”

And despite the fact that the Liberal government’s intensions were to remove obstacles for those seeking education and employment, Hepner says that how these institutions word the question is key.

“’Have you ever been convicted of an offence? The answer is going to be: ‘Yes, but pardoned’ he says. “Or is the question going to be, ‘Do you have a criminal record?’ The answer to the criminal record will be ‘no.’”