Automatic Expungements, not Pardons
Happy Valentine’s Day!
Will you be my Valentine, Canada?
Will you help me make my Valentine's Day wish come true?
My wish is for all Canadian citizens who have been convicted of cannabis offences under the Controlled Drugs and Substances Act (CDSA) to have their records automatically expunged, not pardoned.
The difference between an expungement and a pardon is that an expungement destroys or removes all judicial records of their conviction from the RCMP repositories and any other federal department or agency, so that the person can say that they were never convicted of that offence.
A pardon, or a "record suspension", does not erase a convicted offence, but rather sets it aside, and it does not guarantee entry or visa privileges to another country. A record suspension allows a person who was convicted of a criminal offence, and who has completed his or her sentence and demonstrated that he or she is a law-abiding citizen for a prescribed number of years, to have his or her criminal record kept separate and apart from other criminal records, removing his or her criminal record from the Canadian Police Information Centre database.
Now that cultivating, selling and possessing cannabis have been legal for the past three and a half years, and because those offences are no longer offences under the CDSA, my wish is that their records be wiped clean, as if they never existed, because the law itself should never have existed.
And that is also my Valentine’s Day wish, to have Canada acknowledge that the drug law should never have existed.
Why should the drug law never have existed? This leads to my last wish…
My third and last wish (and I apologize if this is sounding more like a conversation with a Genie in a bottle than Valentine’s Day ...) is for all Canadians to learn and understand that our drug law came from our former Prime Minister William Lyon Mackenzie King’s racism against Chinese Canadians in 1907, and without any scientific evidence and without any debate in the House of Commons.
Canada’s drug law was first enacted against opium because of what a young Mackenzie King saw and heard in Vancouver after the 1907 riot by white men against Chinese and Japanese Canadians. I detail this story in my book, Canada’s Cannabis Act: Annotation & Commentary, which is set out below.
Okay, I have one more wish - that you sign my petition for automatic expungements, and that you encourage other Canadians to sign it, too, so that it can have more than 10,000 signatures by April 20, 2022 (which is my favourite day of the year, 420).
cannabis lawyer, author and podcast host of Cannabis Law in Canada
Photo by nine koepfer on Unsplash
Excerpt from Canada’s Cannabis Act: Annotation & Commentary, 2021-2022, pp. 17-20
In 1907, the Anti-Asiatic Exclusion League was comprised of white male trade unionists, and it held a parade in Vancouver to protest the “flood of Asians into the city”, as the press portrayed. Over 5,000 people marched behind a banner that read, “Stand for a White Canada.”
After a series of speeches, a portion of the mob headed toward Chinatown and, according to newspaper reports, a man threw a stone at a Chinese-owned store, which erupted into a riot where nearly every store window was smashed. Eventually, the rioters met resistance near the Japanese community centre, where the police finally began making arrests. The race riot made headlines around the world, including New York, London, Taiwan, Tokyo and Beijing.
William Lyon Mackenzie King’s Racist Influence
Writing in detail about the riot and its aftermath, historian John Price describes how a young William Lyon Mackenzie King became the driving force of the country’s first drug prohibition:
Embarrassed by the lawless violence during the race riot and pressed by Japanese and British officials for some sort of remedial action, Laurier quickly dispatched his minister of labour, Rodolphe Lemieux, to Japan in the hope of obtaining a commitment from the Japanese government to limit emigration. Laurier also appointed the deputy minister of the newly formed Department of Labour, William Lyon Mackenzie King, to investigate the losses sustained by the Japanese community. King followed up this investigation immediately with a second inquiry into the causes of the riot. After entreaties from the Chinese government regarding Chinese losses, King undertook a third investigation in the spring of 1908 into the damages suffered by the Chinese community.
During Mackenzie King’s one-man Royal Commission to assess the damage and allocate reparations, several influential local residents encouraged him to investigate and report on what they saw as a troubling opium problem. Mackenzie King wrote a report that shifted the problem from a labour dispute between white and Chinese workers to opium use by Asian immigrants.
… the amount [of opium] consumed in Canada, if known, would probably appall the ordinary citizen who is inclined to believe that the habit is confined to the Chinese, and by them indulged in only to a limited extent. The Chinese with whom I conversed on the subject, assured me that almost as much opium was sold to white people as to Chinese, and that the habit of smoking opium was making headway, not only among white men and boys, but also among women and girls.
Less than one year after the riot in 1908, the Minister of Labour introduced the Opium Act saying, “We will get some good out of this riot yet.” This statement is very troubling. Imagine today the ridicule that the Minister of Labour would receive by attempting to “get some good” out of a labour crisis by introducing a bill to prohibit drugs. In other words, there was no real need or scientific basis to enact a prohibition against opium.
Despite the compensation offered for damages, the main impact of the riot was a renewed and determined effort by the federal government to stop Asian immigration, justified by King’s affront to white Canadians (mostly women) smoking opium. The Opium Act was but one law in a series of laws designed to deport “Chinamen” and end immigration of the “yellow peril” that was about to “swallow” a white British Columbia.
Three years later in 1911, Parliament added cocaine, morphine and eucaine to the Act, expanding its name to the Opium and Drug Act. However, Parliamentary opinions had not changed; in 1923, there were more debates about how to remove Chinese Canadians from Canada than anything related to marijuana.
The 15 years between the prohibition of opium and the prohibition of cannabis in 1923 saw an increase in police search powers, an increase in the types of offences and penalties surrounding recreational drug use, including whipping as the punishment for selling drugs to minors, the creation of a federal drug bureaucracy, and more than 15 drugs added to the Schedule.
Parliamentary Ignorance of Cannabis, “A New Drug”
When the federal government added cannabis to the Schedule of the newly named Opium and Narcotic Drug Act, 1923, remarkably it did so without any debate in the Legislature. No scientific or any other evidence was disclosed to Parliament to illuminate what cannabis was or what it did. As McCart J. penned in his Judgment described above, the only record in Hansard is the bald statement made by Henri Sévérin Béland, the Minister presiding over the Department of Health, “[t]here is a new drug in the Schedule.” Immediately after his statement, the Bill was read for the third time and passed.
Instead of a detailed discussion and debate about this “new drug,” immediately before Béland’s declaration, Parliamentary debate was concerned with how best to legislate the deportation of opium traffickers; there was concern that a case in British Columbia had prevented “some 49 cases of deportation”. There was neither interest about this “new drug,” nor any debate about whether or not it should be added to the Schedule.
Incredibly, there was little conversation about this “new drug” until nine years later in 1932 during a debate in the House of Commons regarding an amendment to the 1920 Act. MP Ernest Lapointe asked the Minister of Pensions and National Health Murray MacLaren, “What is cannabis sativa?” The Minister replied,
Hitherto this was a drug which was not included in the list which might be used. It is one form of the drug used in India which, I believe, goes under the popular name of hashish. Probably hon. Members have read about it. There is no objection to the use of it and therefore permission will hereby be granted for its use.
No other information about cannabis, hashish or this “new drug” was requested or supplied. The Minister’s comment about “no objection to the use of it” proved to be accurate, for a time at least. From 1923 to 1968, there were merely a handful of arrests for cannabis possession. However, the lack of knowledge about cannabis would not be examined in any detail until 1969.
During those 45 years, penalties and Parliament’s unscientific justifications increased, despite there being “no objection to the use of it”. For example, in 1954, the possession for the purpose of trafficking offence was added to the Opium and Narcotic Drug Act, 1923 with a reverse onus; that is, those possessing large quantities of narcotics had to prove that they were not in possession for the purpose of trafficking. The Act also introduced harsher penalties for trafficking than for possession.
1 - John Price, “‘Orienting’ the Empire: Mackenzie King and the Aftermath of the 1907 Race Riots” (Winter 2007/08) B.C. Studies, No. 156.
2 - John Price, “‘Orienting’ the Empire: Mackenzie King and the Aftermath of the 1907 Race Riots” (Winter 2007/08) B.C. Studies, No. 156 at 60.
3 - Dan Malleck, When Good Drugs Go Bad: Opium, Medicine, and the Origins of Canada’s Drug Laws (Vancouver: University of British Columbia Press, 2015).
4 - William Lyon Mackenzie King, “Report on the Need for the Suppression of Opium Traffic in Canada” (Ottawa: Parliamentary Document 36b, 1908).
5 - Report of the Senate Special Committee on Illegal Drugs, “Cannabis: Our Position for a Canadian Public Policy” (September 2002), c. 12, online: https://sencanada.ca/content/sen/committee/371/ille/rep/repfinalvol2-e.htm.
6 - Report of the Senate Special Committee on Illegal Drugs, “Cannabis: Our Position for a Canadian Public Policy” (September 2002), c. 12, online: https://sencanada.ca/content/sen/committee/371/ille/rep/repfinalvol2-e.htm.
7 - Neil Boyd, High Society: Legal and Illegal Drugs in Canada (Toronto: Key Porter Books, 1991) at 27.
8 - S.C. 1911, c. 17.
9 - Canada, Parliament, House of Commons Debates, 14th Parl., 2nd Sess., Vol. CLV, 1923 (February 27, 1923), online: http://parl.canadiana.ca/view/oop.debates_HOC1402_01/711?r=0&s=2 Images 711 to 714. This is general discussion about the problem with “Chinamen” and deporting them, and using the lash as punishment.
10 - It is important to remember that when William Lyon Mackenzie King became prime minister in 1921, his vision of an all-white Canada he articulated between 1907 and 1909 was facilitated with the Chinese Exclusion Act in 1923 despite protests by many in Canada and by the Chinese government. In 1928, King’s government introduced further restrictions on Japanese immigration quotas, to 150 per year (see John Price, “‘Orienting’ the Empire: Mackenzie King and the Aftermath of the 1907 Race Riots” (Winter 2007/08) B.C. Studies, No. 156 at 79).
11 - S.C. 1923, c. 22, as amended.
12 - House of Commons Debates, 14th Parliament, 2nd Session: Vol. 3, p. 2124. The specific page of Hansard can be found online at the Library of Parliament: http://parl.canadiana.ca/view/oop.debates_HOC1402_03/80?r=0&s=2.
13 - Hansard, House of Commons Debates, 17th Parliament, 3rd Session: Vol. 2 1932, at 1792 [emphasis added]. To be clear, hashish is not the popular name for cannabis sativa; hashish is a product made from the resin of cannabis buds.
14 - Report of the Senate Special Committee on Illegal Drugs, “Cannabis: Our Position for a Canadian Public Policy” (September 2002), c. 12, online: https://sencanada.ca/content/sen/committee/371/ille/rep/repfinalvol2-e.htm.
15 - S.C. 1954, c. 38, s. 3. For a brief review of the legal history, see: R. v. Malmo-Levine; R. v. Caine,  S.C.J. No. 79 at paras. 32-34,  3 S.C.R. 571 (S.C.C.).