VIDEO: Expungement Of Convictions Won’t Get You Off The ‘Stop List’

The application process is now open to get criminal convictions for minor drug offences expunged, but it won’t get you off the US ‘Stop List’.

Attorney General and Minister of Legal Affairs, Kathy Lynn Simmons told MPs that the Expungement of Convictions Act 2020 was brought into operation on Thursday (March 11).

The online application tool was launched on Friday (March 12) for applicants “to begin the process of successfully making an application for an expungement order, to erase historic criminal conviction records for the offence of ‘simple possession of cannabis of seven (7) grams or less’, for offences committed before December 20^th, 2017″.

“December 20^th, 2017 is the relevant date because that was when the Misuse of Drugs (Decriminalisation of Cannabis) Amendment Act 2017 became law, removing criminal sanctions for cannabis possession of seven (7) grams or less in Bermuda,” the Minister explained.

“By allowing expungement of criminal records prior to the decriminalisation of seven (7) grams or less of cannabis, the Government has ensured that persons formerly convicted are not excluded from the social justice reforms that are being instituted. This therefore, is the latest development in our Government’s commitment to meaningful cannabis reform, to stop an historical trend that has disproportionately impacted our Black male, population.

“In simple terms, the Expungement of Convictions Act 2020 allows anyone convicted of the ‘relevant offence’, as per the Act, of ‘simple possession of seven (7) grams or less of cannabis’ to apply to the Minister responsible for legal affairs to have that conviction expunged by order of the Minister.”

Ms Simmons noted that “the Ministry of Legal Affairs and Constitutional Reform’s team has worked collaboratively with the Department of Information Digital Technologies (IDT), the Bermuda Police Service and the Judicial Department to design and launch a user-friendly online application platform”.

But she warned that the expungement of convictions does not create a clear pathway to get off the US Stop List.

Highlights of the Minister’s full statement:

Applicants must submit all of the prescribed information as set out in section 6 of the Act —

• the applicant’s name, address and date of birth;

• the applicant’s name and address at the time of the conviction;
• details of the conviction; and
• any other information the Minister requires.

Additionally, applicants can provide any other information they wish to be considered by the Minister for the purpose of making a determination whether to grant an expungement order.

The Act, and the application process, makes allowances for an appropriate person, as determined by the Minister, to apply posthumously to exonerate family members, or loved ones, who have passed away before the Act came into effect. The Act also permits an appropriate person to apply on behalf of a person with physical or mental disabilities.

To apply, one simply has to visit the Government portal, at ‘forms.gov.bm’, and follow the link to the online expungement application tool. Alternatively, the Government portal homepage will display a quick link to the application tool. Persons can also use the search function on the Government portal using the search term ‘expungement application’. Information about the application process has been helpfully outlined for the public in Guidance Notes which are easily accessible on the Government portal.

Having an online application tool aligns with Government’s initiative to encourage e-government services. This reduces the burden on human resources and the simplified administrative process reduces the need for personal contact. In- person contact continues to be discouraged as we take precautions during the current COVID-19 pandemic. Given the relative ease of doing so, prospective applicants are encouraged to apply online using the application tool and the associated Guidance Notes. As an alternative to the online tool, hardcopy forms can be collected from the Ministry of Legal Affairs and Constitutional Reform Headquarters at Global House, 4^th Floor, 43 Church Street, Hamilton.

Applicants must also give authorization on their application to permit the Ministry to liaise with the Bermuda Police Service and the Judicial Department to search their criminal records repositories for the relevant conviction records and details of the associated offence.

The Ministry would like to advise members of the public that it may take up to two weeks for the criminal record-holding authorities to search and make the records available. The delay is attributable to challenges with accessing historic criminal records that are not digitalized and may have been contaminated, archived, destroyed or are otherwise not sufficiently detailed to classify the amount of cannabis associated with a particular conviction.

Criminal records kept by these entities for ‘simple possession of cannabis’ offences were not compiled with the purpose of future expungement in mind. Previously, there would not have necessarily been a need for an official criminal record to specifically annotate the offence related to seven (7) grams or less of cannabis. Therefore, some forensic review of the records is required, which is laborious and may add additional time to the process. Therefore, we ask that the public remain patient with that process.

The Bermuda Police Service and the Judicial Department have undertaken to support the process by continued collaboration with respect to the retention and retrieval of accurate criminal records; and for the system-wide expungement of records subject to an expungement order.

I am particularly grateful for this undertaking and the respective commitment by the Bermuda Police Service and the Judicial Department to allocate institutional resources to ensure the success of the expungement process.

Once all of the pertinent information is received the Ministry’s technical officers will review the completed application form and relevant documents; any supplemental information received from the applicant; and the criminal records information supplied by the Bermuda Police Service and the Judicial Department. This review allows the Ministry’s officers to make a recommendation to the Minister on whether to grant or refuse an expungement order according to the terms of the Act.

Where an expungement order is granted by the Minister, the person to whom the order relates will be treated as not having —

• committed the offence;
• been charged with, or prosecuted for, the offence;
• been convicted of the offence; or
• been sentenced for the offence.

The effect of this process is that the relevant offence is completely erased for all material purposes under Bermuda law.

The Expungement of Convictions Act 2020 prescribes severe criminal penalties for persons who make unauthorised disclosures of expunged convictions, and for persons who obtain such information fraudulently.

Should the Minister refuse to make an expungement order, the applicant will be notified of the refusal in writing within seven (7) days of the Minister’s decision. A person aggrieved by the Minister’s decision not to make an expungement order will then have twenty-one (21) days to appeal to the Supreme Court.

One of the pressing questions that continues to arise is whether expungement of a prior cannabis conviction record will remove a person from 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. The Government of Canada has similar issues, in that the United States continues to refuse to accept some Canadians for entry into the US, even after they have received pardons for prior convictions. The Government of Bermuda continues discussions with the US Consul General to address the difficulties faced by Bermudians who find themselves denied entry into the US, particularly when their travel is for educational purposes, national sports representation and critical access to medical treatment.

There is some optimism that with the relatively recent trend of decriminalisation across the US, and potential for federal law changes to cannabis restrictions in the United States, expungement offers the best opportunity for overcoming the ‘stop list’ hurdle in the future.

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 after an expungement order is issued.

I cannot emphasise enough the Government’s commitment to the underlying policy reasons for granting expungement orders aimed at erasing and minimising the legacy effects of discriminatory, racialised and unjust criminal sanctions which continue to hamper those formerly convicted persons from gaining equal treatment in the areas of employment, housing and other legal ramifications.

By taking the steps to apply for an expungement order we anticipate that affected persons will feel empowered with a sense of renewed dignity, hope and promise for fuller participation in all facets of society. Additionally, we challenge entities and individuals to respect the right for these past convictions to be forgotten, and to continue to interrogate and unlearn our previous biases, prejudices and stigmas of persons formerly convicted of minor cannabis offences, to truly exemplify the restoration of justice and the grace of our shared humanity.

Potential applicants are once again directed to the Ministry of Legal Affairs and Constitutional Reform webpage, or forms.gov.bm, on the Government’s web portal to obtain the information necessary to apply for an expungement order.