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Expungement of Historically Unjust Convictions Bill - Second Reading

Honourable senators, it is an honour to rise today to speak as critic of the second reading debate 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 tabled in the context of the Prime Minister’s formal apology to the LGBTQ2 community issued last November. In this apology, the Prime Minister acknowledged the adoption of policies by the federal government that promoted institutional discrimination against members of the LGBTQ2 community between the late 1950s and the early 1990s.

Present at the apology was Ms. Michelle Douglas, a former member of the Canadian military dismissed in 1989 for being “not advantageously employable due to homosexuality.”

Ms. Douglas’s experience resonates with the experience of thousands of members of the LGBTQ community across Canada.

The legislation before us today does not address all the injustices and issues against same-sex activities but tries to tackle one particular blunt instrument, the Criminal Code and the laws applied to target consensual same-sex activities. It allows for the expunging of criminal records.

In his earlier remarks, Senator Cormier gave a comprehensive and impassioned historical overview to contextualize the need for this legislation. The personal accounts he shared with this chamber were meaningful and extremely moving.

I know, looking back, to understand what it meant to the individuals affected was difficult. Bill C-66 would allow for the posthumous expungement of criminal convictions for the offences of “gross indecency, buggery and anal intercourse” that would be considered lawful today as prosecuted under the National Defence Act and Criminal Code.

As reported by Public Safety Canada, the RCMP has on record over 9,000 convictions for these types of offences. It is important to note that expungements could not be applied for crimes that are not specifically related to consensual same-sex activities. Certain criteria would need to be met through the application to ascertain that the activities were consensual and that they took place between individuals of the same sex 16 years of age or older. Those under the age of 16 would be subject to the “close in age” exemption under the Criminal Code. In the event that proper documentation cannot be provided, Bill C-66 will permit the submission of sworn statements.

It should be noted that this bill received all-party support in the House of Commons on December 13, 2017. However, as noted by Senator Cormier, concerned community members and academics have called for clarification as well as an expansion of the list of eligible offences for expungement; namely, a group of historians has suggested that the offences set out in the bill do not reflect the full scope of the offences used in the past to persecute members of the LGBTQ community.

For example, the proposed legislation would not apply to offences related to bawdy house law and would not extend to offences under categories of indecent acts, obscenity and vagrancy.

With regard to the implementation of the bill, suggestions have been put forward that the destruction of documentation will supersede the Library and Archives of Canada Act and the Privacy Act. Conversely, others have expressed concern that while the bill requires the RCMP to destroy judicial records, it cannot compel provincial and municipal jurisdictions to follow suit, rendering complete expungement impossible.

As the legislation before us proposes an application-based process, the practice by which the Parole Board of Canada will make its determinations also merits further consideration. Will officers be given training to make these determinations, particularly in the event that an application contains a sworn statement? How will issues of consent be evaluated? Will there be an appeal process for applicants in the event that an application is denied?

Furthermore, a communication strategy will need to be implemented in order to notify Canadians that this application-based process has been made available.

Bill C-66 would allow for applications to be submitted posthumously. Subclause 7(2) of the bill outlines a number of individuals who may apply for expungement on a person’s behalf.

I will list them: The person’s spouse or the individual who, at the time of the person’s death, was co-habiting with the person in a conjugal relationship, having so co-habited for a period of at least one year; the person’s child, parent, brother and sister; the person’s agent or mandatory attorney, guardian, trustee, committee, tutor or curator or any other person who is appointed to act in a similar capacity before his or her death; the person’s executor or the administrator or the liquidator of the person’s estate or any other individual who, in the opinion of the parole board, is an appropriate representative of the person.

It is worth considering whether a process will be in place to address disagreements, which may arise ultimately between family members or other individuals included on this list in the submission of a posthumous application.

Finally, Bill C-66 grants power to the Governor-in-Council to extend the list of offences.

Section 23(2) states:

In order to provide for expungement of convictions arising from an activity, the Governor in Council may add any item or portion of an item to the schedule if the activity no longer constitutes an offence under an Act of Parliament and the Governor in Council is of the opinion that the criminalization of the activity constitutes a historical injustice.

This causes some difficulty as to what this really means. The outcomes of a possible expansion of this list by future governments must be considered.

I look forward to exploring these matters further in our committee study.

Honourable senators, we have a responsibility to address these past injustices, particularly those caused by the discriminatory actions and policies of the federal government and which led to criminalizing individuals only for their sexual orientation.

While the adoption of Bill C-66 will not erase the trauma of the past, its adoption will represent an important step forward in acknowledging these injustices and seeking remedy.

I trust that the committee will review Bill C-66 thoroughly, and I trust the Senate will contemplate when governments, in their wisdom, believe that certain actions, social actions, need to be criminalized, that they will pause to think if future generations will agree.