Hundreds of thousands of Canadians could see their drug possession records disappear

The automatic “sequestration” of drug possession records was made possible due to a New Democratic Party amendment to Bill C-5 and accepted by the government.

“I said we needed a better bill ... Highest on my list was trying to get rid of criminal records for simple possession,” said NDP justice critic Randall Garrison, who proposed the amendment.

“They’ve assured me that in two years from the passage of the bill, criminal records for personal possession for all drugs will disappear.”

Bill C-5 is the government’s attempt at reducing the over-incarceration of Black and Indigenous people in prisons. It cleared the House of Commons in June and was sent to the Senate, where it will be studied at committee in the fall.

The bill would also repeal mandatory minimum sentences for all drug offences and some firearm offences; expand the use of conditional sentences, such as house arrest; and require police and prosecutors to use their discretion to keep drug possession cases out of the courts.

It’s estimated that as many as 250,000 Canadians may have drug possession convictions stemming from cannabis possession alone, when it was still illegal. The government launched a revamped pardon application process for those individuals in 2019, but Garrison said only a few hundred people have been successful.

“Your existing system isn’t working, so let’s do something simpler,” he said.

A spokesperson for Justice Minister David Lametti, who tabled C-5, said Garrison’s amendment and others were accepted “as our government believed they were essential in improving the bill and accomplishing its objectives.”

The bill stops short of actually decriminalizing drug possession, something advocates, people who use drugs and the NDP have long called for.

“While the burden of possession convictions falls heavily on racialized Canadians and Indigenous Canadians, the same is true of course of having those criminal records and not having been able to avail themselves of any convoluted, expensive process to get rid of them,” Garrison said.

Garrison had pushed for the expungement of drug possession records, and said the government came back with “sequestration,” which he said means they won’t show up on a criminal record check.

“The argument from the government is they can’t physically destroy the records because they’re kept in so many different formats in different places, but they can guarantee they’ll never show up again in criminal record checks,” he said.

He said the government insisted on the two-year timeline in order to implement a sequestering system.

The amendment also means that anyone who gets a drug possession record after the bill passes will see that record set aside two years after the completion of any sentence, Garrison said.

Individuals with criminal records who are eligible for pardons currently have to apply, a process that advocates say can be onerous and costly, which is preventing many from doing so. The government has long been urged to come up with an automatic system, but had shown resistance in the past.

“It is actually a very complicated process with a lot of steps,” said Samantha McAleese, a Carleton University researcher looking at the impact of the pardon system on people with criminal records.

Even though the government slashed the application fee from $657 to $50 this year, McAleese said there are still other costs associated with having to get various police and court records in order to apply.

“So any time we can eliminate the bureaucracy required to secure those human rights protections is a good time,” she said.

Public Safety Minister Marco Mendicino, who is responsible for the pardon file, has expressed his support for the sequestration of drug possession records, according to a statement from his office.

Consultations had already begun on the automatic sequestration of a wider variety of criminal records, his office said.

“We expect that similar recommendations to MP Garrison’s proposal come out of that examination,” the statement said. “We remain committed to implementing measures that will bring our judicial system closer to eradicate systemic racism as well as ensuring a more effective and fair justice system for all Canadians.”