Cannabis became legal in Canada on October 17, 2018 with the introduction of the Cannabis Act. The Cannabis Act decriminalized cannabis to reduce the strain on the criminal justice system and allow for the legal sale of cannabis while keeping it out of the hands of youth, much like tobacco and alcohol products.
There were two major adjustments on the criminal justice system. First, an adult can now legally possess up to 30 grams of dried cannabis and share it with other adults. Second, there is now a regulatory framework for the legal production and distribution of cannabis so retailers can sell cannabis to consumers, essentially legalizing trafficking as long as the necessary permits and licence are obtained. However, the Cannabis Act did not address past convictions related to cannabis.
A criminal record can negatively affected employment opportunities or the ability to travel. With the legalization of cannabis, many Canadians would like convictions for cannabis-related offences removed from their criminal record as the offences no longer exists.
Canadians were left with the regular process of waiting five or ten years to apply for a record suspension – commonly called a pardon – to expunge any convictions from their criminal record. However, in June 2019, the Canadian government introduced Bill C-93, the aptly named An Act to provide no-cost, expedited record suspensions for simple possession of cannabis. This bill created a streamlined process to remove convictions for simple possession of cannabis from a criminal record. Simple possession is a conviction under section 4 of the Controlled Drugs and Substances Act for possession of a controlled substance for personal use, rather than for the purposes of trafficking.
Under this streamlined process, anyone convicted of simple possession of cannabis in Canada can now apply for a pardon, also known as a Cannabis Record Suspension, without the requirement to wait five to ten years. This is not an automatic process and applicants must apply to the Parole Board of Canada. Applicants can apply for a Cannabis Record Suspension once any probation or custodial term is complete, even if a fine or victim fine surcharge remains unpaid. There is no cost to apply as the regular fee of over $600 has been waived. However, applicants may incur costs to gather necessary documents. The application must include sufficient documentation to show that the conviction was for simple possession of cannabis, which may require court documents or police reports in addition to a criminal record.
Do I qualify for a cannabis record suspension?
A Cannabis Record Suspension only applies to simple possession convictions. It does not apply to other cannabis-related offences, such as trafficking or operating a vehicle while impaired by drugs. Applicants with other convictions on their criminal record, whether cannabis-related or not, cannot apply for a Cannabis Record Suspension and will have to apply for a regular pardon following the necessary waiting period. Applicants with past youth convictions for simple possession may apply for a Cannabis Record Suspension if a subsequent adult conviction for simple possession caused the youth conviction to remain on their criminal record. Without a subsequent adult conviction there would be no reason to apply because the youth conviction will be automatically removed from a criminal record following the corresponding waiting period prescribed by the Youth Criminal Justice Act.
Despite the legalization of cannabis possession, trafficking cannabis remains illegal unless it complies with strict regulatory guidelines. No provisions have been made regarding prior convictions for trafficking cannabis. To remove a past conviction for trafficking in cannabis from a criminal record, the applicant will have to follow the regular process for a pardon.
When a Cannabis Record Suspension is granted, like a regular pardon, the conviction is removed from the individual’s criminal record. There will still be a judicial record of the conviction, but it will no longer appear during a criminal record check. However, if the individual is subsequently convicted of an offence, the Cannabis Record Suspension could be revoked, causing the conviction to reappear.
More information, and relevant forms, can be found at the Government of Canada website.
If you have a legal matter that requires assistance, contact DDSG Criminal Law today.