The Attorney-General and Minister of Legal Affairs, Senator the Hon. Kathy Lynn Simmons, JP has today announced the tabling of a Bill in the House of Assembly entitled ‘Expungement of Convictions Act 2020’. The Bill will make provisions for an application process to remove, or ‘expunge’ historic criminal conviction records of persons convicted for simple possession of less than or equal to the statutory threshold of 7 grams of cannabis.
Attorney-General Simmons said, “The public may recall that soon after this Government was elected it enacted the Misuse of Drugs (Decriminalisation of Cannabis) Amendment Act 2017. In part, that Act’s purpose was to remove criminal sanctions in relation to the possession of cannabis, where the amount is less than, or equal to, 7 grams.
“At the time, the wider social justice policy objective was to discontinue the long-standing practice of criminalising individuals for personal cannabis use. It was a long overdue response to generations of Bermudians receiving criminal penalties for being caught with small amounts of cannabis. In particular, it was the realisation of a campaign promise to rid our society of the unfairness, especially to young Black men, of harsh drug enforcement and criminal justice practices, long recognised as having a lifetime impact on education and employment prospects for our youth.
“Decriminalisation was to be the initial step in achieving social justice for persons most likely to be affected by Cannabis prohibition laws. The next logical step is to offer redress to those carrying criminal records for possessing small amounts of cannabis before the Cannabis decriminalisation law came into effect. To this end, today I tabled the Bill entitled Expungement of Convictions Act 2020.
Attorney-General Simmons added, “Presently, there are persons in Bermuda with criminal convictions on record for an offence which is now decriminalised, because their conviction was recorded prior to the amendments in the law taking effect in December 2017. Accordingly, it would be unfair to leave those persons to continue to suffer the consequences for an offence which has been repealed and that societal values no longer considers warrants criminal sanction. This Bill provides the opportunity for those affected persons to overcome the negative stigma, biases and exclusion attached to those criminal histories. The procedure prescribed by the Bill is for persons convicted of possession of less than 7 grams of cannabis, before 20 December 2017, to apply to the Minister of Legal Affairs to make an order that the record of their conviction is expunged, i.e. an ‘expungement order’.”
“It is a simplified procedure which permits affected persons to apply to the Minister for an expungement order by providing basic details of their conviction, and minimal personal information such as name, date of birth and home address (also address at the time of conviction). Ministerial discretion can be exercised to request additional information, beyond that which the applicant submits for the Minister’s consideration. Provisions within the Bill also allow an applicant to appeal the Minister’s refusal to make an expungement order.
“The ultimate effect of making the expungement order is captured at clause 8(2). That is to say, the person is thereafter to be treated as not having committed the offence, not having been charged or prosecuted for the offence, and not having been convicted or sentenced for the offence. A person with an expungement order will not be compelled to have that prior criminal record used against them in criminal proceedings. Likewise, prospective employers cannot use it to deny him or her employment. In other words, a person with an expungement order will not be subject to any legal ramifications such as perjury or giving a false statement by not acknowledging or disclosing the prior existence of an expunged record. This includes in response to any inquiry made of them for any purpose either by a Court of law or a prospective employer.
“In practical terms, an expungement order will have the effect of completely erasing the applicable criminal conviction. For all intents and purposes, that conviction will no longer exist under Bermuda law and for conducting affairs within Bermuda. Expungement orders will be binding upon authorities and entities in Bermuda, including those who hold and make criminal conviction records available to third parties.
“To position this proposed law reform within a global context, a number of other countries have recently decriminalised or legalised cannabis possession and/or usage to varying degrees. These jurisdictions include Trinidad & Tobago, Jamaica, Barbados, Canada, Australia and more than 30 states within the United States of America. Likewise, since enacting cannabis decriminalization or legalization measures, a number of countries have also sought to expunge past criminal conviction records for cannabis offences.
“For example, Jamaica has a Criminal Records (Rehabilitation of Offenders) (Automatic Expungement of Convictions) Order, which became effective in July, 2015. Canada passed Bill C-93 in June last year, which allows persons to be pardoned immediately (and at no cost) for simple cannabis possession, upon making application to do so.
“Within the United States, expungement for simple Cannabis possession and other forms of criminal record relief, such as sealing and set-aside, have now been enacted in more than a dozen states. Most US laws require individuals to file petitions in court to obtain relief.
“One of the pressing questions locally is whether expungement of a prior cannabis conviction record will avoid a person being on the US Immigration’s ‘stop list’. This question cannot be answered definitively, as US immigration policy is entirely of its own making and operates independent of other countries’ laws. Canadians, for example, are faced with a similar challenge to Bermuda, as the US has said it does not recognize Canada’s cannabis conviction pardons. This means Canadians with past convictions may still face difficulties crossing into the US border, notwithstanding they have been lawfully pardoned.
“Where we can give assurances, is by highlighting that once an expungement order is issued, local authorities would be prohibited from providing criminal conviction records for the expunged offence to any person or entity, locally or internationally. In other words, no new criminal record information for expunged offences could be provided to US immigration authorities post expungement. It can also be said that with the relatively recent trend of decriminalisation across the US, expungement offers the best opportunity for overcoming the ‘stop list’ hurdle in the future.”
Attorney-General Simmons concluded her statement reiterating confidence that the Bill will bode well for those who would otherwise have their future compromised because of historic personal drug use. She stated, “This latest measure toward achieving social and restorative justice in Bermuda, especially for young Black Bermudian men, will not be the last. The intent is to ensure that the law does not unnecessarily stigmatise persons based on historic personal drug use."