Cannabis pardon may make things worse

Sep 17, 2019

A new online application system has enabled Canadians to apply for pardons for simple cannabis possession convictions through the Parole Board of Canada’s website. However, having a pardon can make border crossing into the U.S. more difficult.

Justice Minister David Lametti revealed the new online application system in July with the aim to “remove barriers to employment, housing, travel and volunteering opportunities for people who were convicted of simple possession before recreational cannabis use was made legal.” In Canada, “simple possession” refers to possession of 30 grams of cannabis or less, and prior to legalization, convicted individuals were facing up to six months in prison and a $1,000 fine.

“The U.S. does not have access to pardoned criminal records… A record suspension removes a person’s criminal record from the Canadian Police Information Centre (CPIC) database. This means that a search of CPIC will not show that the individual has a criminal record or a record suspension.”

Scott Bardsley, spokesperson for Public Safety Minister Ralph Goodale’s office

Even though possession of cannabis is no longer considered a crime in Canada a prior conviction can result in a lifetime ban on entering the U.S., if the border guards are aware of it, even if the individual was granted a pardon.  

According to several immigration lawyers, Canadian citizens who have obtained pardons for cannabis possession are often questioned about them by border officials and sometimes receive a lifetime ban. Scott Railton, an immigration lawyer based in Bellingham, Washington, said U.S. border officers can have information about the original arrest, and question the individual based on that.

“Usually, what I’ve seen as a line of inquiry is that the officer doesn’t have complete information, but they have information about an arrest at some point or other, and they make further inquiries about that arrest. They develop that line of information,”

Scott Railton, immigration lawyer, Bellingham, Washington USA

If, upon questioning, the individual attempting to cross the border admits to having previously been arrested for cannabis possession, they can receive a lifetime ban despite having been pardoned. However, if the individual denies having been previously arrested for possession, they can receive a lifetime ban for lying.

Michael Arntfield, a criminology professor at the University of Western Ontario, said that someone who had been previously arrested for cannabis possession will still have an entry in the CPIC even after the pardon, without the details of the offence. Therefore, despite not having a criminal record, U.S. border officials could still see that an individual had been previously arrested. Moreover, the U.S. border officials typically have their own independent data about the conviction, even if a pardon is later granted.

According to Public Safety Canada, record suspensions are only released under “exceptional circumstances” and are typically withheld during routine background checks, which includes U.S. border crossing, said Justice Minister David Lametti.

However, according to lawyer Len Saunders of Blaine, Washington, some of his clients with previous possession convictions dating back many years ago did not have any problems at the border until they received a pardon, after which they received a lifetime ban.

“Quite often, I find that once someone gets a pardon that then triggers that inadmissibility,” said Saunders. Michael Arntfield said this may be due to the fact that long-ago offences were likely only documented in a paper file and were never recorded on the CPIC database until the pardon process resulted in creation of the entry.

“There are a number of dated convictions, probably on paper, that will predate the current operating system used and were dormant in a filing cabinet somewhere. As soon as that gets updated … it goes from invisible to visible because previously there would have been no entry,”

Michael Arntfield, Criminology Professor, University of Western Ontario

According to Arntfield the solution is to apply for record destruction after receiving the pardon, a step of which many individuals are simply unaware. On the other hand, criminal lawyer Sean Robichaud, based in Toronto, said, “It is not a solution, because record destruction is not actual destruction,” he told Global News. “There is no such thing as record destruction, quote-unquote. The information of the occurrence itself still exists.”

Currently, U.S. border officials will not reveal how they use Canadian data at the border. However, officials on both sides of the border have stepped up their data-sharing in recent years