3 years after weed legalization, Ontario man still can't enter U.S. due to 20-year-old pot charge

It has been exactly three years since recreational cannabis was legalized in Canada and two years since a program to grant pardons for simple possession was introduced — but some people with pot convictions and those who advocate for them say not much has changed since.

In 2019, the federal government said those with a criminal record for simple cannabis possession could apply for a free record suspension — formerly known as a pardon — through a new program. 

Between Aug. 1, 2019 and October 1, 2021, the Parole Board of Canada, which is responsible for deciding whether record suspensions should be issued for convictions under federal legislation, received a total of 780 applications for cannabis record suspensions.

A total of 487 applications were accepted, 484 cannabis record suspensions were issued and 3 applications were discontinued. Of the total received, 288 applications were returned due to "ineligibility or incompleteness," the board said in an email to CBC Toronto. There are 5 applications that the board has received but has not yet accepted for processing.

But Darryl L, who lives in Clarington, Ont and was convicted of simple pot possession while in high school 20 years ago, is still waiting for his. He says the conviction, which still shows on his criminal record, continues to affect his ability to get a job.

"I am kind of upset with it," he told CBC Toronto, which is withholding Darryl's last name at his request because he's worried about his prospects for future employment.

He's worried the record suspension process will take a "ridiculous" amount of time. The parole board estimates up to 10,000 Canadians are eligible for cannabis record suspensions. But because of the COVID-19 pandemic, its website warns that delays are expected as the board has limited capacity to process applications. Darryl, however, feels his record should have been erased automatically.

"To me now, in Canada, I've committed no crime. It should have been expunged automatically when they changed the laws."

Simple possession charges were given to Canadians who possessed 30 grams of cannabis or less. Before legalization, anyone convicted of simple possession could face up to six months in jail and a $1,000 fine.

Darryl was arrested in 2002 while walking home from a party with a friend. He was drinking Dad's Old-Fashioned Root Beer, which comes in a container that looks similar to a beer bottle, but is alcohol-free. Darryl said police stopped him and asked about the bottle, ended up searching him and found weed in his pocket.

He said he pleaded guilty in court, paid a $150 fine and was given a year of probation.

He said the conviction has also prevented him from travelling across the border to the U.S. to go to football games.

"I want to go to Buffalo or Detroit and watch a game in my lifetime," he said.

Barriers to housing, travel, employment persist

In addition to the delays that the COVID-19 pandemic has caused, critics say the record suspension program doesn't go far enough to address the issues those with current possession charges continue to face in employment, and the barriers they face in the application process.

Jodie Emery, a cannabis rights activist, said the program doesn't do nearly enough to help those with non-violent, minor cannabis offences. 

"Unfortunately, in Canada, we've had fewer than 400 approvals for record suspensions or pardons, and more than 250 have been denied," Emery said. 

"Yet, we still have 10,000 Canadians who are allegedly eligible and more than 450,000 Canadians who have records for cannabis beyond that."

Emery said those with simple pot charges should be able to get their criminal records expunged. 

"I think one of the main concerns people have is that the legalization system put in place continues to ignore the harms caused particularly disproportionately to minority groups and communities," Emery told CBC Toronto. 

"The government seems more focused on the financial benefits of taxation and regulation rather than undoing the harms of prohibition."

Emery described the cost, the need to get to a courthouse, obtain documents and get fingerprinted for RCMP paperwork as a "burdensome process," and said after all that the problem still doesn't go away entirely.

"With a pardon or a record suspension, your record isn't completely erased," Emery said.

"It still exists, which means there can still be problems with applying for jobs or housing or going to travel," she said. "Whereas an expungement would allow the government to just erase everything themselves.

"When the government passed their latest bill to give pardons, they knew it wasn't going to actually be effective for most of the Canadians who needed to be liberated from their criminal records," Emery said.

"It seems a bit hollow to go to the Canadian public and say, 'We're going to legalize it, but everyone who is punished will remain persecuted.'"

Even with record suspension, U.S. entry might still be an issue

Pardons Canada, a non-profit headquartered in Toronto, has been helping remove criminal records for pot possession for the past 35 years and says it has helped anywhere between 200 and 400 people get record suspensions. 

Andrew Tanenbaum, the organization's program director, said the non-profit receives calls from people who require a clean criminal background check. But he warned that if they've already been denied entry into the U.S. due to a conviction for simple pot possession and they get a pardon, it won't help them cross the border.

"They're still going to see that person's record because they would have downloaded it into their system and they will still deny you entry."