Criminal Law

Pot pardon legislation doesn’t ‘go far enough,’ says Dostaler

By Tony Poland, AdvocateDaily.com Associate Editor

Impeding legislation which would grant free pardons for Canadians convicted of simple marijuana possession is a “great start” but could be better, says Ottawa criminal lawyer Céline Dostaler.

The Liberal government expects Bill C-93 — an amendment to the Criminal Records Act which was tabled in the House of Commons in March — to pass into law this summer.

The legislation, which would waive the $631 fee for a pardon along with the five to 10-year waiting period to apply, follows the legalization of marijuana last fall and is intended to remove barriers to housing, employment or travel for Canadians who have a criminal record for the drug.

“It’s a great idea. We knew that pot was going to be legalized for the past four or five years,” says Dostaler, founder of Céline Dostaler Professional Corporation. “But people were still being arrested for simple possession, so this is a great way to deal with anybody who’s been convicted of something that is now no longer illegal.”

She tells AdvocateDaily.com that the bill is a step in the right direction that “doesn’t quite go far enough.”

“I think they could be doing better,” says Dostaler. “They could expunge an individual’s record, and I hoped that the pardon would have been an automatic thing.”

She explains that what is being offered is essentially a record suspension, which doesn’t erase a criminal record, unlike an expungement that seals the file.

“I can’t answer as to why they are not doing expungements,” says Dostaler. “I think this is the middle ground that they’ve agreed to.”

She says she would have also preferred to see the convictions simply wiped clean, rather than forcing people to apply for the pardons.

“Everything’s done by computers today, so why not just erase the convictions automatically? A quick search, find and delete anybody who has a simple possession would seem much easier,” Dostaler says. “I don’t think that it works that way with a criminal record, but it seems like everything is on a database so it would at least be feasible.”

She says while the government is waiving the waiting period and the fee, applying for a pardon may not be as simple as filling in a form. And it could come with costs.

While Dostaler is still waiting for details of the process for applying for a pardon for a simple pot conviction, she says a person now seeking a conviction suspension would have to submit to a criminal check and fingerprints at a police station, for which they would need to pay. The process could take six to nine months, Dostaler says.

“It takes a very long time because one of the things they look for are any new outstanding charges,” she says. “I don’t know if that’s the same process individuals will be expected to follow for a pardon for a marijuana conviction.”

Dostaler says she and other criminal lawyers “are trying to wrap our heads around” what can be disclosed under a record suspension. She says if the record of the conviction is not sealed, crossing the Canada-U.S. border could be difficult for those who have been pardoned of a simple marijuana conviction.

“I think the intention is to allow individuals to be able to cross the border, but I think that also depends on whether or not the U.S. will accept that,” Dostaler says. “In some states, marijuana is illegal, so I don’t know whether or not the U.S. in its entirety would be accepting of individuals with that criminal record even if it has been suspended.”

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