Canada is making great strides in both the international and local spheres when it comes to being a forward thinking, respected and progressive country. One of the areas where the nation is going to be closely watched by other countries of the world is the announcement by our Federal government that the legalization of marijuana for both medicinal and recreational use is going forward.
By the summer of 2018, we should start seeing the roll out of new laws that would no longer find the possession or use of marijuana a criminal offence, or even any kind of offence at all. In the same way that drinking alcohol and smoking cigarettes are not criminal acts, marijuana will simply be one more controlled substance, just like the other two, that will be up to private individuals to use responsibly.
However, this brings up an interesting question. Next year, the use of marijuana and the possession of it will not be criminal offences that people can be charged with. Right now, however, marijuana use and possession is still a criminal offence.
So, what happens if you are charged now with marijuana possession for example, and then 2018 arrives, and the crime you were successfully charged with is no longer a crime? Are you still a convicted criminal, or does this no longer apply?
The Current Consequences
For the remainder of 2017, it’s “business as usual” in terms of legal ramifications for marijuana possession. For now, it’s still considered a criminal offence, and that means that if you are charged with marijuana possession, you will be arrested, fingerprinted, and eventually tried in a court of law to determine whether you are guilty or not guilty. If you are found guilty, you will have a criminal record, which can affect both your career and travel opportunities.
This means that if you apply for a job, and someone decides to conduct a background check, that possession conviction will come up. This also means that if you decide to travel to the USA and the Customs & Border Patrol conduct a background check, it will also come up, and you can be barred from entry into the country on grounds of “moral turpitude.”
The Incoming Problem
The legal and judicial system of Canada is now about to face a very challenging “transitional problem” as we move into legalization next year. For anyone that has been charged and convicted with a crime, there is a minimum period of time that must pass before that person can apply for a record suspension. Certain conditions must also be in effect during that time. Usually something along the lines of time has been served, and no other arrests and convictions occurred after that.
In the case of marijuana possession, assuming that minimal amounts were found and the charge is not possession of sufficient amounts that drug trafficking is also in the cards, the minimum waiting period is five years. That means that anyone who has been charged and convicted of marijuana possession and is currently serving time in a jail must wait. For people who completed their jail sentences or paid their fines, provided they did this by 2012, five years will have passed by the time 2018 arrives, and legalization goes into effect.
So what happens to those people caught in the middle of this transitional period, who will still be considered to have criminal convictions for a possession of a substance that is no longer even regarded as illegal by Canadian law?
For the moment, the Federal government has been largely silent on the matter of what to do with people already convicted, and are not discussing it. From a strict standpoint of fairness, it’s clearly a problem to have someone hold a criminal record for a crime that no longer exists in the legal system. On the other hand, it’s not as easy to simply call up a person’s criminal record conviction on a computer, press the “delete” key and have the problem solved.
There are many different aspects that need to be considered, including time, effort and financial resources required to address the issue. It may be that the government may simply decide that it is more efficient to address people with convictions in a specialized Record Suspension initiative that can fast track their suspensions.
On the other hand, internal review may show that a small enough number of people would be affected by this that it would be easier to simply allow the system to continue as it does now, and let interested individuals privately seek their own Record Suspension when the time comes and they qualify. The government itself has yet to make any official remarks about how they will address this, so we’ll have to wait and see.