Monday, May 7, 2018

The Standing Senate Committee on Human Rights has the honour to present its

TENTH REPORT

Your committee, to which was referred Bill C-66, An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts, has, in obedience to the order of reference of Tuesday, March 27, 2018, examined the said bill and now reports the same without amendment but with certain observations, which are appended to this report.

Respectfully submitted,

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OBSERVATIONS

to the 10th Report of the Standing Senate Committee on Human Rights (Bill C-66)

During its study of Bill C-66, an Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts, the committee heard from witnesses who expressed concerns regarding the absence of consultations surrounding the drafting of the bill.

Other concerns expressed by witnesses included the inconsistency between the Prime Minister’s apology to LGBTQ2 Canadians delivered on November 28, 2017 and the offences cited in the schedule of Bill C-66, notably, the exclusion from the schedule of the bawdy house provisions of the Criminal Code. The committee shares these concerns.

Therefore:

1. The committee requests the Department of Public Safety and Emergency Preparedness to launch — as soon as Bill C-66 receives Royal Assent — consultations with stakeholders and subject-matter experts to address other sections of the Criminal Code that were applied in a discriminatory fashion against the LGBTQ2 community, such as, but not limited to:

(a) Indecent acts (Criminal Code, s. 173(1));

(b) Immoral theatrical performances (Criminal Code, s. 167);

(c) Obscenity (Criminal Code, ss. 163, 168);

(d) Counselling to commit an indictable offence (Criminal Code, s. 22);

(e) Operating, or being found in, a bawdy house (Criminal Code, s. 210);

(f) Nudity (Criminal Code, s. 174);

(g) Causing disturbance, indecent exhibition, loitering, etc. (Criminal Code, s. 175(1));

(h) Prostitution-related offences (formerly, ss. 212(1)(j) and 213(1)(c) of the Criminal Code);

(i) Vagrancy (Criminal Code, s. 179(1));

(j) Criminal HIV-non disclosure (under Assault and Sexual Assault sections of the Criminal Code, ss. 266 to 268 and ss. 271 to 273, respectively).

In addition, section 25(c) of Bill C-66 keeps the age of consent at 16, which is inconsistent with analogous historical acts of heterosexual sex.

2. The committee requests the Minister of Public Safety and Emergency Preparedness to broaden the schedule, keeping in considerations the aforementioned items, so as to fully address the wrongs mentioned in the Prime Minister’s apology to LGBTQ2 Canadians.

3. The committee requests the Government of Canada to consult on and clarify the definition and criteria of what constitutes a “historical injustice.”

4. The committee calls the attention of the Department of Public Safety and Emergency Preparedness, the Royal Canadian Mounted Police (RCMP), and the Parole Board of Canada, to the necessity to communicate clearly to all Canadians, particularly to the LGBTQ2 community, on the application process and the criteria for eligibility.

5. The committee calls upon the Parole Board of Canada to clarify with applicants which documents or records will be directly or indirectly destroyed through the process, and which ones will remain intact. Applicants should also be made aware, before they apply for expungement, of their right to demand access to copies of their records and other materials.

6. The committee notes the concerns from witnesses surrounding the destruction of potentially historically relevant records and archives.

7. The committee calls the attention of the Minister of Public Safety and Emergency Preparedness to its concern that the expungement process keeps the burden of proof — to prove eligibility for expungement — on the victims (applicants), rather than on the Crown.

8. The committee brings to the attention of the Minister of Public Safety and Emergency Preparedness concerns raised by witnesses about the lack of an automatic process for expungement of criminal records and barriers to access to justice as a result of the application process set out in the bill. Many of the records are decades old, such that they may be difficult to obtain for some. It is laudable that the government has recognized this and will consequently allow for the use of sworn statements. 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 addition, Departmental officials confirmed here and in the other place that the RCMP have many of the police records that would allow them to expunge records.

9.  The committee calls on the Minister of Public Safety and Emergency Preparedness to re-examine the requirement for an individual to apply in order to obtain expungement of a criminal record.