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Expungement of Historically Unjust Convictions Bill - Third Reading

Honourable senators, I too rise today to speak at third reading of Bill C-66, An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts.

Bill C-66 was introduced in the other place in the context of the Prime Minister’s formal apology to the LGBTQ2 Canadians, delivered on November 28, 2017. The bill’s passage received all parties’ support in the other place.

In the apology, the Prime Minister made broad-ranging statements that described the persecution and the discrimination of the LGBTQ2 community throughout Canadian history. The Prime Minister addressed discriminatory policies, practices and laws. He particularly addressed historically unjust convictions.

In this respect, Bill C-66 would establish a procedure by which historically unjust convictions involving consensual sexual activity between same-sex partners are eligible for expungement.

The challenge of Bill C-66 is that it covers only a small portion of the Prime Minister’s apology. With respect to the Criminal Code, the Prime Minister made note of the following three provisions historically applied to criminalize the LGBTQ2 Canadians, most notably, buggery, gross indecency and the provisions related to bawdy houses.

In contrast, as cited in the schedule of the bill, offences eligible for expunging relate to the following three provisions of the Criminal Code only: gross indecency, buggery and anal intercourse. Witnesses called before the Standing Senate Committee on Human Rights, while appreciative of the apology, were concerned that the bill falls short of the promises made. The inconsistency between the bill and the formal apology marked one of the key concerns raised by witnesses.

I do not intend to give an exhaustive analysis of the witness hearings today, as that was done earlier by our colleague Senator Cormier, but, rather, to share a few salient statements.

In his testimony before the committee, Professor Gary Kinsman noted:

Currently, therefore, only a small fraction of the historically unjust convictions that the LGBTQ2S+ have actually experienced are covered in Bill C-66. This is a fundamental problem that must be addressed.

Some witnesses said the schedule is too limited to cover the injustices and recommended that the schedule of offences be broadened. Other witnesses recommended that the list be removed altogether. A further suggestion was to amend the bill to provide a clear definition of “historically unjust conviction,” which would then be applied to a broad range of offences.

Of particular concern amongst the witnesses were issues of the bawdy house provisions of the Criminal Code identified in the Prime Minister’s apology but excluded from the schedule of the bill. Clause 12(b) of Bill C-66 states that:

. . . the Board must review the application and the evidence gathered through any inquiries and determine whether there is evidence . . .

(b) that the activity in respect of which the application is made is prohibited under the Criminal Code at the time the application is reviewed.

In other words, Bill C-66 seeks to expunge records for convictions involving offences that would be considered lawful under today’s Criminal Code.

With respect to the inclusion of the bawdy house provision, Mr. James Lockyer, Senior Counsel, Innocence Canada stated:

They were declared unconstitutional by the Supreme Court of Canada in the Bedford decision, so to use the fact that they still exist as a rationale for not putting them in the legislation simply doesn’t work.

However, in his appearance before the committee, the Minister of Public Safety and Emergency Preparedness, Ralph Goodale, stated the following in his opening remarks:

The difficulty with those other laws —

“Those” is referring to all the unenumerated ones plus the bawdy house provisions. I continue:

The difficulty with those other laws, is that in those instances, we are talking about problems related to laws that are not inherently unconstitutional. Indeed, those laws remain in effect. It becomes much more complicated to determine, decades later in many cases, whether a particular conviction under one of these statutes was legitimate.

With respect to the Supreme Court of Canada decision Attorney General v. Bedford, section 210 of the Criminal Code related to bawdy houses was narrowed but was not ruled entirely unconstitutional according to the testimony of the minister.

Allow me to quote directly from the Court’s decision:

Sections 210, as it relates to prostitution, and ss. 212(1)(j) and 213(1)(c) of the Criminal Code are declared to be inconsistent with the Charter. The word “prostitution” is struck from the definition of “common bawdy-house” in s. 197(1) of the Criminal Code as it applies to s. 210 only.

Therefore, the aspects of section 210 related to prostitution were deemed unconstitutional while the application of section 210 as it relates to the LGBTQ2 community remains in the Criminal Code.

Similarly, the committee was informed by Shawn Scromeda, Senior Counsel, Department of Justice Canada, that the definition of “indecent act” was narrowed in the Supreme Court decision of R. v. Labaye. When questioned about the government’s future intention with regard to the bawdy house law, Minister Goodale stated:

A bill is not in the process of being drafted. The issues are certainly being examined, but there is no further legislation in the mill at this time.

Further narrowed by its application of the current age of consent contained within the Criminal Code, pursuant to section 25(c), Bill C-66 would allow for the expungement of criminal records in cases where individuals were 16 years of age or older at the time when the activity occurred.

Prior to 2008, the age of consent contained within the Criminal Code was 14. With the passage of Bill C-66, the government is seeking to expunge criminal records for offences that today would no longer be considered criminal offences under federal law.

However, in applying today’s age of consent, a discrepancy is created by the legislation that will result in only the partial granting of eligible expungements.

Ms. Angela Chaisson of the Criminal Lawyers' Association contextualized the discrepancy as follows:

This means that for two same-sex 15-year-olds who had sex in 2007, for example, and a criminal charge and a criminal conviction followed, those people are not eligible for expungement, but if they had been heterosexual, no crime would have even been committed.

Bill C-66 does allow for the application of a close-in-age exemption under the Criminal Code. Several witnesses maintained that the discrepancy further perpetuates stereotypes that same-sex activity is more dangerous than heterosexual activity among young people, which goes clearly against what we were attempting to do by way of apology.

Ms. Chaisson further argued that the discrepancy:

. . . violates a central tenet of Canadian law by reaching back and applying today’s age of consent to yesterday’s acts.

She was referring to section 11(g) of the Canadian Charter of Rights and Freedoms, which states:

Any person charged with an offence has the right

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

It was recommended by witnesses and in written submissions that the age requirement be, therefore, amended to ensure consistency.

I believe that the constitutional difficulties were noted in the committee and were canvassed thoroughly by committee members. I thank them for the involvement. It made my task easier as I think we were all in agreement with the dilemmas that have been raised.

Senator Joyal has now raised some other matters, but I think that the bill needs to be understood that it is only addressing a narrow band of correction. By doing that, they may have created other violations, and they certainly haven’t addressed all the violations that were intended by the words of the Prime Minister.

I want to highlight some additional challenges of the bill raised by witnesses. Witnesses noted that the collection of documentation to meet the eligibility criteria is likely to be difficult and time-consuming for many applicants. This is difficult because the further we go back in time, the more challenging it is to retrieve documentation. This concern is reflected in the committee’s observations, and I quote:

The aged nature of the records also means that the records we are talking about will be so old that, if the individuals were required to apply pursuant to current record suspensions or the pardon provisions they replaced, the time that has elapsed since their convictions and the end of their sentences would exceed such wait times by decades.

In light of these difficulties, the committee was assured by department officials that staff would be providing adequate training to assist them in making determinations related to applications submitted.

Another issue raised by the expungement of criminal records is the preservation of historical documentation. Many witnesses asserted the importance of preserving records for their historic relevance. Others indicated that they are private records, and they should have the discretion of whether or not the records are destroyed. Therefore, the debate comes between protecting the privacy rights of individuals and the public’s right to information.

The Canadian Centre for Gender and Sexual Diversity, along with the Quebec Gay Archives, proposed that the bill be amended to establish a process to preserve materials with historic relevance while protecting confidentiality. Other witnesses proposed that individuals applying for record expungement should have the right to choose whether their personal files are shared for historic value.

I wanted to note that the record of expungement is only the criminal record; so the other records of the police process and the court remain intact. They are not involved. It is simply the expungement of the criminal record.

Finally, I want to raise the issue of consultation. During the course of the hearings, it became evident that relevant stakeholders and community members were not consulted in a meaningful way in the drafting of the legislation. Had relevant stakeholders been consulted, perhaps the results of the bill would have responded more appropriately to the needs of that community.

The committee was informed by officials from Public Safety Canada that external consultations with stakeholders still have yet to be contemplated.

Honourable senators, our committee was left with the same difficulty that was expressed by the witnesses. The decision was whether to accept the bill as a start to correcting historic injustices perpetrated against members of the LGBTQ2 community or to oppose Bill C-66 in an effort to fully realize the Prime Minister’s apology.

The committee, as did the witnesses, leaned toward accepting the bill and having some redress despite a lack of assurances regarding future action. While accepting Bill C-66, the committee put forward nine observations that the government should immediately proceed upon.

In this context, I want to acknowledge the hard work of Senator René Cormier, who worked collegially and collaboratively with the interests of the LGBTQ community as sponsor of the bill. In particular, his consultation with the community members, members of the committee, as well as others, exemplified the important contributions of individual senators to legislation and the collective of senators through committees.

As I said, I also appreciate the concerns and the contributions of all members of the Standing Senate Committee on Human Rights under the chairmanship of Senator Bernard.

Honourable senators, the word “apology” raises expectations. Meaningful actions must follow. If we are talking about unjust discrimination and the unfair treatment of Canadians who are looking for redress, who are looking for justice, and we say we will give it to them, and then we give them only a sliver of what is necessary to be done, I want to assure the community that I think, myself — you have heard others in this chamber — the committee, through its observations, will not rest on this issue.

Apologies cannot be made without thoughtfully thinking through the plan of action and implementation; otherwise, we serve to be part of the problem. We wish not to enter into any more court cases for this community. We should be supporting and ensuring that the apology is fully in place.

Bill C-66 touched only a little on criminal injustices, but there are yet the policies and practices of the apology to be addressed. I believe the community and Canadians are waiting for full action on the apology.

Thank you.