British Columbia

Don't count on pot pardons to wipe your record clean, legal experts warn

John Baxter was convicted in the 1980s for robbery and possession of a joint. He's spent 30 years trying to clear his name and says a pardon he got in 2014 did not help him at the border.

'It was the most demeaning thing,' says man hassled over 30-year-old convictions, despite pardon

John Baxter, 54, spent decades trying to clear his record after being convicted of possession of one joint in 1983. He says getting a pardon from Canada 'was satisfying' but did not help him at the U.S. border. (John Baxter)

John Baxter was convicted of marijuana possession in Calgary back in 1983, for one joint.

Around the same time, he was also convicted of attempted robbery under $200 and robbery. 

The Revelstoke-area man says he's been paying for those mistakes ever since — despite receiving a pardon in 2014 and having no brushes with the law since the '80s, other than one traffic ticket.

"It felt good getting that letter from the government, but [pardons] are quite misleading," the 54-year-old musician said.

Following this week's promise from the Liberals to pardon people convicted of minor pot crimes — and with an estimated 500,000 Canadians expected to apply to the Parole Board of Canada — legal experts are also warning that a pardon may not completely wipe the slate clean.

Even a pardon does not get rid of records within the system. To do this people must apply for a destruction of records — otherwise evidence of prior convictions remains in the system and can be used by border officials to deny Canadians entry into the U.S.

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Those pardons could potentially even alert officials to past crimes that didn't show up before.

The pardon that Baxter worked so hard for turned out to be useless at the border.

Some 400,000 Canadians cross the Canada-U.S. border daily. As of Oct. 17, 2018 many will now face questions about whether they have smoked pot. Marijuana use alone can get people ruled inadmissible to the U.S. (CBC)

Baxter spent years — and more than $3,000 — on a pardon and temporary waivers. He's now been granted a five-year waiver that allows him to cross between B.C. and the U.S. 

But that's after decades of hassle and one eight-hour interrogation in 2010.

At one point Baxter said U.S. border officials made it clear to him that the pardon he got four years ago was useless.

"'We don't care about your pardon. We don't recognize it anyway. If we want to see your record we'll just look. We still have access to your records,'" Baxter recalls one official saying.

"He was so belligerent. My wife and I were so uncomfortable. We just wanted to get out of there," Baxter said.

People convicted of pot possession — as long as it's under 30 grams — will soon be able to apply for pardons. This image shows how much 30 grams of loose cannabis is, if cupped in open hands. (Rafferty Baker/CBC)

"It was the most demeaning thing that I've ever been through. But you are pretty much at their mercy, and they know that."

Len Saunders, Baxter's lawyer in Blaine, Wash., says pardons can flag authorities to past convictions.

Pardon me?

He said clients of his that applied for pardons ended up with old records added to their digital files — and then had to undergo long bureaucratic struggles to get documents they needed that had been sealed under the pardon process.

After Baxter realized in 2014 his pardon did him no good, he hired a lawyer to apply for a waiver of inadmissibility to allow him to enter the U.S., despite a past criminal record. 

In Baxter's case, he got lucky because a copy of his court records was mailed to him by mistake. Without that, his lawyer told him he'd have spent years trying to get access to original sealed records required to apply for a temporary $765 waiver that he needed to enter the U.S.

Waivers are based on individual circumstances and can be granted for a day or years before they expire, depending on the need and justification, according to U.S. Customs and Border Protection. 

A U.S. Customs and Border Protection officer walks through a line of cars at the Peace Arch crossing from Canada near Metro Vancouver. (Elaine Thompson/Associated Press)

Ministry of Public Safety officials told CBC that pardon information is not passed on to U.S. authorities.

They say a pardon simply removes a person's criminal record from the Canadian Police Information Centre (CPIC) database.

In an email, the ministry said that no alerts of pardons are shared unless the "RCMP has specifically shared an individual's criminal record with the U.S. ...through an Interpol request."

However, American authorities keep their own records — and they do not destroy them if there is a pardon.

Legal experts warn people that pardons for old marijuana convictions may not help them cross into the U.S. and in some cases may even cause problems. (Thomas Samson/AFP/Getty Images)

University of Western Ontario criminologist and former police officer Michael Arntfield said he saw "all sorts of outrageous things" added as "liner notes" on people's CPIC files, from suspicions of connections to organized crime to "pending pardons."

Details like that can get a person blocked from the U.S., as can simple use of cannabis.

"It's almost like leading the lambs to the slaughterhouse. The Canadian government unknowingly is going to create hundreds if not thousands of Candians inadmissible to the United States who currently are not on the radar," said Saunders.

He said remarks added to digital files, even just noting a pardon, could cause problems.

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Yvette Brend

CBC journalist

Yvette Brend works in Vancouver on all CBC platforms. Her investigative work has spanned floods, fires, cryptocurrency deaths, police shootings and infection control in hospitals. “My husband came home a stranger,” an intimate look at PTSD, won CBC's first Jack Webster City Mike Award. Got a tip?