Past Session:

Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue No. 65 - Evidence - June 17, 2019

OTTAWA, June 17, 2019

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 7:47 p.m. to give clause-by-cause consideration to Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis.

Senator Serge Joyal (Chair) in the chair.

The Chair: Honourable senators, I’m pleased to welcome you this evening. We are studying Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis.

Before I turn the floor over to the witnesses, I’d like to draw your attention, honourable senators, to a letter I was sent after the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness, appeared before the committee.

The letter has been circulated around the table in both official languages. It’s a letter from the minister in answer to a question raised by me and Senator Carignan at the end of the meeting. There is an element in that letter to which we might want to pay due consideration when we consider the opportunity to append observations to the report.

I invite honourable senators to read the letter. It is not that long, only four short paragraphs. I will call for the attention of honourable senators when we are going to be at the stage of considering observations.

That said, honourable senators, can I have the authorization to append this letter to the minutes of the meeting today?

Hon. Senators: Agreed.

The Chair: It’s my privilege to introduce tonight our panel of witnesses. They will all appear by video conference.

First, we have William Thompson, Member at Large, Criminal Justice Section, Canadian Bar Association; Lori Anne Thomas, President, Canadian Association of Black Lawyers; and Akwasi Owusu-Bempah, Director of Research, Campaign for Cannabis Amnesty.

Good evening, everyone. I will first invite the representative from the Canadian Bar Association, Mr. William Thompson, to present his views to the members of the committee.

William Thompson, Member at Large, Criminal Justice Section, Canadian Bar Association: Good evening to the committee.

The CBA is a national association of about 36,000 lawyers, law students, notaries and academics. An important aspect of the CBA’s mandate is seeking improvements in the law and the administration of justice, and it is from that perspective that we appear before you today.

The CBA Criminal Justice Section includes lawyers with expertise in criminal and prison law from across the country. We are practitioners in criminal courts on a daily basis. I am a criminal defence lawyer in Toronto, though my practice takes me to courthouses throughout Ontario.

I believe you have the June 7 letter from Ian Carter, Chair of the CBA Criminal Justice Section, setting out the section’s position on Bill C-93. There are a couple of aspects of the section’s position that I would like to focus on.

First, the Criminal Justice Section fully supports the goal of alleviating Canadians of the burden of historic criminal convictions for the simple possession of cannabis. The CBA has long advocated a harm-reduction approach to drug use, one that relies on health care, treatment options and careful regulation rather than criminal prohibition to save lives and reduce the harms to users and the broader community. Reducing the continuing barriers to people moving their lives on from these convictions is an important step in that approach. In fact, the section would support an automatic process to expunge simple possession convictions from people’s records, but it recognizes there may be practical impediments to that approach, as identified by the representatives of the Parole Board and the RCMP.

Second, the section is concerned that limiting the expedited pardon process to people with no other criminal record is too narrow. Addiction often manifests itself in low-level property offences and administration of justice offences like failing to appear in court or breach of recognizance. Restricting this process to people with no other criminal convictions denies its benefit to the people who are most likely to need it. To broaden the scope of the expedited process, we recommend removing the word “only” from sections 4(3.1) and all of section 4(4.1).

I know there has been some suggestion that record suspensions are an all-or-nothing proposition. While in practice that may be the way in which the Criminal Records Act has been administered, it’s not a requirement under that statute. Section 4.1 of the Criminal Records Act states that:

The Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that . . . .

It then goes on to lay out the preconditions for a record suspension. On its face, that provision allows for record suspensions on a portion of a person’s overall criminal record.

For the same reason, the section is concerned that the procedure created by this legislation, while well-meaning, is too complicated and onerous. For example, requiring an applicant to bear the onus of establishing that a conviction was for possession of cannabis, as opposed to cannabis resin or one of the other related substances in Schedule 2, will be very difficult for marginalized people and is quite likely impossible if the conviction is old.

The practical reality is that proof of the facts underlying a conviction is likely to require obtaining a transcript of the facts found by the judge or admitted in support of a guilty plea.

It is extremely difficult, if not impossible, to obtain transcripts of matters that were before the court more than seven years ago and have not already been transcribed.

Finally, the section recommends adding sections to increase the protections from exceptional disclosure of these suspended convictions. Record suspensions do not erase past convictions. There continue to be circumstances where suspended records remain disclosable under the Criminal Records Act. For this special category of record suspension, we support enhancing restrictions on disclosure to advance the goal of removing the stigma associated with these convictions.

To that end, we propose replicating the provisions in section 6.1(1) and (2) of the Criminal Records Act related to discharges to convictions for simple possession of cannabis.

As I indicated at the outset, the CBA Criminal Justice Section views an expedited, less expensive process for obtaining record suspensions for the simple possession of cannabis as positive progress, but we wish to encourage expanding the scope and simplicity of the process to ensure that it delivers on its promise to improve the lives of marginalized Canadians.

Thank you very much for your attention.

The Chair: Thank you very much, Mr. Thompson.

Ms. Thomas, the floor is yours.

Lori Anne Thomas, President, Canadian Association of Black Lawyers: I want to thank the chair and the committee members for inviting our association. The Canadian Association of Black Lawyers is made up of not just lawyers but students, as well as some members of the judiciary, many of whom have been lawyers prior to their appointments, and so we echo the concerns raised by the Canadian Bar Association.

The position we have is that the conviction records for those with simple marijuana possession should be expunged, as mentioned or brought up in the private member’s bill of NDP justice critic Murray Rankin. I understand the concerns raised by the police and other parties, but, in our submission, it’s the best way to address those who are marginalized and affected by this.

When you think of the concerns of those who are marginalized, there are people with language barriers, economic barriers, mental health concerns and learning disabilities. Those four groups of people will not have the benefit or privilege of getting their records suspended because it will be difficult for them to do. Even with an expedited process, there is the onerous step of getting, as Mr. Thompson mentioned, the transcripts, but even an information is difficult to get. I’m a criminal lawyer myself, and I have had clients who have asked for assistance to get simple things like the information or proof of payment of their fines, and that becomes very onerous. They also have to get their fingerprints done and go to a police station to get their local records done.

When they fill it out, there other things, like being asked for their last 10 addresses with postal codes, making sure that there is contact information. Those with housing issues or who are homeless or have been homeless, this may be very difficult for them. Those with mental health issues and learning disabilities, this becomes a very onerous process for them.

The problem we have, especially with Black and Indigenous people who have suffered greatly by having these simple convictions, it has harmed them in getting jobs in the past. It harms them when they go to the United States or travel abroad.

These are some of the concerns we have. When you add in other aspects of them being from one of these four more marginalized or vulnerable groups, it makes it very difficult for them to get the same privilege as someone who is educated, English-speaking and is aware that this process exists. Even once it comes into place, it will be difficult to provide access to those who probably need it the most, who may have had simple marijuana possession back in 1975. They are going to have difficulty getting rid of that. Maybe it hasn’t harmed them, maybe it has, but the fact is they won’t get the benefit that this government is trying to give and trying to level things off.

In our submission, it should be an automatic suspension or something where there is at least a less onerous obligation on the people seeking to have their records suspended.

Mr. Thompson said a lot of what I wanted to say; so I can leave it at that with less than five minutes.

The Chair: No doubt the honourable senators will want to exchange views and question you. You will have another opportunity, Ms. Thomas.

The floor is yours, Mr. Owusu-Bempah.

Akwasi Owusu-Bempah, Director of Research, Campaign for Cannabis Amnesty: Thank you, chair, and honourable senators. It’s a pleasure to be here with you this evening.

I represent the Campaign for Cannabis Amnesty. I’m also an Assistant Professor of Criminology at the University of Toronto.

The Campaign for Cannabis Amnesty is a not-for-profit advocacy group focused on righting historical wrongs caused by decades of cannabis prohibition. We were founded in the spring of 2018 in response to the absence of federal legislation addressing the stigma of previous cannabis convictions, in the lead-up to the introduction of the Cannabis Act.

Since then, the campaign has been calling on the government to enact legislation to delete criminal records relating to simple cannabis possession. We believe that no Canadian should be burdened with a criminal record for minor, non-violent acts that are no longer crimes.

For almost 95 years now, the criminalization of simple cannabis possession has resulted in the imposition of unreasonably harsh penalties on hundreds of thousands of Canadians. These penalties and the resultant consequences, as noted, have been disproportionately borne by Canada’s Indigenous populations and our Black communities, as well as otherwise marginalized groups. This has been acknowledged by our government in the lead-up to and since the introduction of the Cannabis Act.

This phenomenon, as far as we are concerned, represents historical injustice and a systemic Charter violation that cries out for redress.

The Canadian government has argued that the previous cannabis regime did not result in a profound historic injustice that would warrant the expungement of these records or the complete erasure of these criminal records, rather than a mere record suspension as proposed under Bill C-93. We disagree with this assertion. Indeed, the equality provision of the Charter was intended to ensure a measure of substantive and not merely formal equality. The Supreme Court of Canada has consistently held that a discriminatory purpose or intention is not a necessary condition for finding a violation of the equality provision of the Charter.

The way in which Canada’s cannabis laws were enforced was undoubtedly discriminatory.

The Campaign for Cannabis Amnesty supports the implementation of measures to remove the stigma of past cannabis convictions that disproportionately impact our marginalized groups. But as currently drafted, Bill C-93, as far as we’re concerned, does not go far enough.

The Campaign for Cannabis Amnesty has provided lengthier submissions to the House of Commons Standing Committee on Public Safety and National Security with respect to Bill C-93. I provide a summary on some of these points here. Given the time constraints and the comments of my colleagues in the room, I will focus on the fact that Bill C-93 does not provide for the permanent deletion of the criminal records in question, and, relatedly, the revocation provision may create inconsistency with respect to the determination of what is deemed to be good behaviour.

Record suspensions do not result in the permanent deletion of an individual’s criminal record. They merely set it aside. Without expungement, individuals convicted of possession remain vulnerable to having their convictions reinstated or inadvertently disclosed. Our governments recognize that removing the stigma of simple cannabis possession records enhances “public safety and opportunities for all Canadians.”

Given this recognition, the government should eliminate rather than merely suspend the harms that stem from previous cannabis convictions. No purpose is served by leaving the door open to future reinstatement. Expungements, on the other hand, provide for the destruction or removal of the judicial records of convictions from federal repositories and systems. Once an expungement is ordered, the RCMP would be required to destroy any record of conviction in its custody. The RCMP would also notify any federal department or agency that, to its knowledge, have records of the conviction and direct them to do the same.

While records in relation to criminal offences do not exist in a single national database, records on convictions do. The Canadian Police Information Centre, or CPIC, is a national database maintained by the RCMP. If someone is arrested, charged and convicted of a crime, this record exists in the CPIC database.

CPIC is the database that is accessible to foreign authorities, such as the U.S. Customs and Border Protection, and the database that is accessed by employers when they perform a background check on a job applicant. Therefore, automatically removing all the simple cannabis possession offences from CPIC would go a long way to alleviate the impact of a conviction on the lives of Canadians.

Our first recommendation: Bill C-93 should provide for the permanent destruction of the judicial records of simple cannabis possession convictions from federal repositories and systems by providing — key here — for the automatic deletion of all conviction entries for cannabis possession in the CPIC database.

The second point is that Bill C-93 creates inconsistency regarding what is deemed good behaviour. A positive aspect of Bill C-93 is the fact that once an applicant has demonstrated to an employee of the Parole Board that his or her conviction is only for simple possession of cannabis, a record suspension must be granted. Under C-93, there is no requirement to demonstrate good conduct, as is required under section 4.1(1) of the Criminal Records Act for all other applications.

These requirements are usually the most onerous and costly aspect of the application process and where applicants most often require assistance of the legal professionals. Their elimination will facilitate engagement in this regime. However, because section 7(b) of the Criminal Records Act will continue to apply to expedited simple cannabis possession convictions, an employee of the Parole Board may revoke the record suspension of a person who received one under Bill C-93 if they are found to be no longer of good conduct. This means a record suspension may be revoked for a ground that was not relevant when it was granted. “Of good conduct” is a vague concept that does not require an individual to have been convicted of a subsequent offence.

Keeping open the possibility of record suspension revocation on the basis of a vague concept frustrates the objectivity of the finality that Bill C-93 seeks to achieve.

Our second recommendation: Bill C-93 should be amended to exempt cannabis possession pardons or record suspensions from the application of section 7(b) of the Criminal Records Act, which allows for the revocation of record suspensions on the basis that a recipient of the record suspension is no longer deemed of good conduct.

In conclusion, I’ll say that the campaign strongly recommends that Bill C-93 is amended as suggested and passed as soon as possible. The recommendations we propose would increase the bill’s utility, assist in achieving its stated goals and allow for the implementation that would benefit as many people as possible.

The Chair: Thank you very much, Mr. Owusu-Bempah. You have been effective to remain within the constraint of time, zeroing in on those two recommendations.

It’s my pleasure to open the debate tonight with the deputy chair of the committee.

[Translation]

Senator Dupuis: Thanks to all three of you for being here this evening. I have questions for each of you. Mr. Thompson, you may have heard the minister talk about some of the technical and technological challenges around setting up a federally, provincially and territorially integrated system for automatic record suspensions. Do you have any comments on that? If Bill C-93 passes as is, what measures would you recommend to help the most marginalized and vulnerable populations, to whom the process may not be easily accessible, as Ms. Thomas mentioned?

[English]

Mr. Thompson: Let me take off my CBA hat for a moment because this is not a topic that we discussed in that context. I’ll wear my personal hat as a criminal defence lawyer.

I think that one of the keys would be providing sufficient funding for community-based legal clinics to be able to do the necessary work to assist marginalized people to take advantage of these opportunities. It’s a sad situation in this province that the funding for Legal Aid and funding for the very types of legal clinics that could do this work is being cut. So, the number one recommendation I would make as a practitioner in this area is ensuring that there is adequate funding for the front-line service providers who actually are in a position to assist people in navigating what is inevitably going to be a relatively complicated process.

[Translation]

Senator Dupuis: My second question is for Ms. Thomas. In studying another bill, we recently learned that the Department of Justice was in the process of working with community groups on the ground to develop family and domestic violence resources. Can you tell us, from your experience, whether any provinces have programs or opportunities? Do you agree with Mr. Thompson about involving community groups, not just community-based legal clinics, but also community groups that work directly with vulnerable populations?

[English]

Ms. Thomas: Yes, there are definitely groups that work with a number of marginalized groups. For those who are economically challenged, who are homeless, there are certainly groups and community workers who work with them. It may be an opportunity. Could they, on top of everything else, add another component? Doing a lot of follow-up, even just to get the court records, can be significantly time-consuming. You have to continue to request them. To be honest, the courts are very busy with current matters, so this does not take priority. Something that is 10 years old, for example, will be in the archives. It may require a significant amount of follow-up to ensure somebody takes ownership to get those records, but they generally don’t take priority.

There are community workers who work with people who are homeless or who work in, as Mr. Thompson mentioned, legal clinics or other clinics that help the most marginalized. It’s a matter of whether they would be able to add this other component onto their already strained capacity to serve the community.

[Translation]

Senator Dupuis: Even though these records pertain to the administration of justice, isn’t this an area where the government could provide community-based organizations with resources in the same way that the Department of Justice provides funding to community organizations that address family violence? The idea would be, not to make them do more with the same amount of funding, but to give them more human and financial resources to do the work.

[English]

Ms. Thomas: Yes, that would be extremely helpful if more community workers could access the tools for what they need to do. Right now, in terms of record suspensions, there are actual service companies making a profit. They help people get record suspensions.

Right now, it’s not simply the person going in. Some can do it on their own, usually those who don’t have learning disabilities and those who don’t fall in the marginalized groups I mentioned. Otherwise, they may get pardon services or get assistance from a lawyer or sometimes a student clinic to assist them with the record suspensions.

[Translation]

Senator Boisvenu: Welcome to the witnesses. I have two questions for Mr. Thompson. This bill has come to us almost at the last minute of this parliamentary session, which is supposed to end this week. That doesn’t give us much time to find the best possible way of meeting the objective to eliminate these records. We probably won’t be able to do the best job. Should this bill have been part of the legalization framework nearly two years ago? Should the elimination of criminal records been addressed in Bill C-45?

[English]

Mr. Thompson: I don’t think I can speak to the sequencing of how the various pieces of legislation came forward. Obviously, the more opportunity there is to consider legislation and the practical requirements to achieve the goals that it seems people across the board agree need to be achieved in relation to this issue, the better.

In my submission and in the submission of the CBA, there are relatively discrete fixes that could be made to this piece of legislation that would significantly improve the access to justice element of it.

[Translation]

Senator Boisvenu: The Americans have access to the Canadian Police Information Centre and Canadian criminal records. That information is still accessible to the Americans and has been historically. Even if we get rid of all those records in Canada tomorrow, will the Americans still have access to information on people’s past criminal convictions? The issue is about more than suspending the records because they are always floating around somewhere in the RCMP ether.

[English]

Mr. Thompson: I don’t pretend to be an expert with respect to the application of American immigration law, but my understanding is that whether a particular piece of information finds its way into the American authority’s hands really depends on whether a person has crossed the border. I think the short answer is that it may or may not.

The Chair: Mr. Owusu-Bempah, do you have anything to add to that? Of course, you know the workings of CPIC and its use by our American neighbours.

Mr. Thompson: As I said, I can’t speak to how U.S. border authorities use CPIC, but my understanding is that if a person hasn’t crossed the border during a period of time in which a particular record is disclosable, they may not in fact have that.

[Translation]

Senator Boisvenu: This is information about a past conviction tied to a criminal record that was accessible to the Americans. It’s how they control who is allowed to enter the country and why they ask people at the border whether they have a criminal record. If the information is available today, doesn’t that mean we need an agreement with the Americans to have them recognize our policy decision to get rid of what they consider a criminal record but that we no longer do? That’s especially important given that Canadian tourists and workers are much more likely to travel to the U.S. than to Europe, say.

[English]

Mr. Thompson: I don’t think I can speak to what might be diplomatically achievable between the Canadian government and the American government.

Senator McIntyre: Thank you all for your presentations. My question has to do with the elimination of the waiting period and the fee.

As we know, if Bill C-93 receives Royal Assent and if an individual was charged with possession of cannabis, 30 grams or less, on October 16, 2018, that individual would not have to wait five years and pay the fee to receive the record suspension.

On the other hand, if that same individual was charged with possession over 30 grams of cannabis in a public place on or after October 17, 2018, that same individual would have to wait five years and pay a fee to receive the record suspension.

What are your thoughts on this policy decision? Obviously the individual charged before October 16, 2018, benefits from this.

Ms. Thomas, do you any thoughts on this?

Ms. Thomas: It’s a different law. It’s hard because when they’re charged before the date of the Cannabis Act coming into force, it won’t be noted on their CPIC record with any other conditions.

Once you go forward with the Cannabis Act and any time there is a new change in the law, is it more unfair to those who, after that date, say on October 17, were in a public place versus somebody who may have been in a public area on October 16? Is there a slight bit of unfairness? Yes, but what is the likelihood that is what is happening? I couldn’t say for sure. In terms of the numbers and how it’s applied, it would be difficult to say.

Mr. Owusu-Bempah: Practically speaking, we’re a little over six months since the introduction of this act, and no doubt there will be amendments to the act going forward. Those might include increased possession limits, increased growth limits and a number of different things. I don’t think there’s any reason that down the road a similar process couldn’t be carried out with respect to offences for low-level possession.

Ultimately — and this is being discussed broadly across the Canada and much of the West — we’re moving toward the regulation and legalization of drugs more broadly. It won’t be long before cannabis is the least of our concerns.

Getting caught up in some of this minutia might cloud the larger picture. Ultimately, any step forward that can benefit the lives of Canadians, their families or communities, and ultimately our society — because these are people who can’t contribute to our economy in the same meaningful way — is of benefit. That’s what we should be looking toward.

Senator McIntyre: Ms. Thomas, are there other offences where Black people are disproportionately affected by the waiting period and the fee?

Ms. Thomas: There are no other offences where there’s an elimination of the waiting period that I’m aware of. Outside of this act, there was always going to be the same waiting period no matter who you were or what the offence was, depending on whether it’s indictable or summary, and, of course, the timing of when that offence occurred because there was a shorter wait period before.

So, yes. For example — and I can’t remember the date — but when the Criminal Records Act came in and changed the waiting period from three and five years to five and 10 years, those whose offences occurred in that shorter time period would have received a benefit of having their record suspended in a shorter time period thanks to a constitutional challenge.

Going forward, constitutional challenges that could occur with those charged after October 17 in terms of a waiting period, but that would be for the courts to decide. And whether it’s fair or not fair, given it’s two separate acts, may be at play as well.

Mr. Thompson: The other distinction is the creation of ticketable offences under the Cannabis Act. That is a fairly significant change from the prior regime that allows for the types of very low-level, relatively minor offences that are really the subject matter that we’re dealing with in these changes to the Criminal Records Act to be dealt with in a completely separate way that wouldn’t generate a criminal record in the ordinary sense.

[Translation]

Senator Carignan: You seem to be in good spirits. Did you happen to take in this afternoon’s Raptors festivities? I heard it was a lot of fun.

We talked about discrimination against people who had received a record suspension or were granted pardons. Some provinces prohibit discrimination based on an application for a pardon. Are you able to tell us which provinces don’t have legislation to prevent discrimination based on previous convictions for which people were granted pardons?

[English]

Mr. Thompson: No. I don’t know that.

[Translation]

Senator Carignan: It’s tough to figure out how this kind of legislation will play out in provinces on a practical level without an overview of anti-discrimination legislation.

[English]

The Chair: Let me ask you who has status in Ontario, for instance?

Mr. Thompson: I can’t speak to anti-discrimination legislation per se, but I can say that in the province of Ontario there is legislation that was passed a little over a year ago with respect to what is and is not disclosed as part of criminal records checks to try to regularize that process across police forces.

While there are exceptions with respect to certain offences that have been the subject of a record suspension, in general, an offence, a conviction for which a person has received a record suspension would not be disclosed as part of a criminal record check.

The offences that are subject to those exceptions are not the ones we’re dealing with today. They tend to be with respect to sexual offences or offences involving vulnerable people.

While I can’t speak to how human rights legislation might protect individuals from being discriminated against based on the existence of a suspended criminal record, that’s the way it works in Ontario in terms of generating a police record check.

That’s relatively unique to Ontario at this point, although I believe that my organization, the Canadian Bar Association, has been involved in advocating on behalf of adopting similar legislation in other provinces.

Senator Pate: Thank you to the witnesses.

Ms. Thomas, you mentioned the private member’s bill that MP Murray Rankin brought forward. I’m sure you’re all aware that if this bill passes, it will result in there being four different mechanisms for obtaining a pardon or a record suspension.

Are you aware of Bill S-258, which aimed to allow convictions to expire without a cost or application? If so, what are your views on that? If not, would each of you have thoughts on the advisability of that kind of process?

Ms. Thomas: I’m not aware of that specific bill. Maybe you can explain what the bill would ask you to do. The convictions would expire?

Senator Pate: It would be a conviction expiry process after two and five years, which goes back to before the three- and five-year period, which was introduced by the Conservative government some years ago, and would allow, at the end of the expiration of this sentence, once the period had elapsed, that the record would expire.

Ms. Thomas: That would also work in the same way. I wanted to be clear, but it is similar to discharges. It would be similar to a discharge that a person would receive.

For recent offences, there would be some issues because they wouldn’t have it expedited in terms of a record suspension. But for those who have had convictions more than three years in the past and could address the concerns that I have of trying to obtain archived information or archived transcripts, that would address that issue.

Mr. Owusu-Bempah: On this same note, EKOS recently did a poll for I believe Public Safety Canada asking a sample of Canadians what they thought about a variety of different systems, including one that, as you proposed, would allow for the automatic deletion of certain records. While there was less support for the types of crimes often covered under dangerous offender or sexual offender labels, there were certain low-level offences for which a significant proportion of Canadians did agree with the automatic clearing or deletion of those records. Simple cannabis possession was one of those offences.

Mr. Thompson: I don’t know about that particular piece of legislation, but I can say that the Canadian Bar Association has long advocated for reforming the Criminal Records Act as it relates to pardons and basically, at a minimum, returning to the situation that existed prior to the amendments in 2010 and 2012 — that is, the shorter wait times and the less onerous standards for applying for a pardon.

I would say that the importance of achieving a record suspension or pardon, or however you want to term it, for the rehabilitation of offenders and being able to move on with their life is extremely important and cannot be underestimated. The process that has pushed that further and further out of reach is one that, in our submission, does not serve the interests of a larger community.

Senator Bernard: I am a visitor here; I am not a regular member of this committee. My question is for Mr. Owusu-Bempah.

In your brief, you reference the notion of good behaviour and how that is defined. You also talk about the disproportionate numbers of Indigenous and Black people in Canada who have been convicted of simple possession. You didn’t use the term racial profiling, but I wonder if you could address whether that disproportionality stems from racial profiling? If you believe that it does, do you think it would have an impact on this notion of good behaviour?

Mr. Owusu-Bempah: Thank you for your question. Given the lack of readily available criminal justice data disaggregated by race, it’s difficult in the Canadian context to determine exactly the cause of the disproportionality. We see a number of parallels between the circumstances in relation to race and policing in Canada that we see in the United States. In the United States, we see that patterns of consumption across racial groups are relatively similar. The same goes for the little bit of data we have from Canada.

What we know, though, is that certain racialized populations, our Black and Indigenous populations, are more likely to be impoverished. Our Black populations in cities are more likely to live in multi-unit housing areas. What I’m getting at is that they may be at increased risk of contact with the police because when the young consume, they often have to do so on the streets because they don’t have the benefit of backyards or cottages to consume. So, on top of the racial profiling we know that exists and has been confirmed by courts, there is also the element of economic deprivation that increases the likelihood of being criminalized.

Based on other work I have been involved in and that I’ve examined, I would suspect that when it comes to the assessment of character, both Indigenous and African Canadians will be more susceptible to negative character assessments. We see this with respect to bail. Black people in Toronto, for example, are more likely to be detained before trial because of the negative character assessments coming from police officers. It would be my assumption, based on my expertise, that something similar would happen. Although these cases are relatively rare, something similar would happen with respect to both Black and Indigenous peoples in this country, yes.

Ms. Thomas: I can indicate that the communities where Black people and Indigenous peoples live are, as my friend indicated, over-policed. That’s something to consider. When you look at the disparity — how much of a factor it plays is questionable, but it has to play a role. In some neighbourhoods where there are predominantly White or Caucasian people, or people less of colour or of economic means, there will be fewer police officers. But when you talk about some of our more at-risk neighbourhoods, where there are predominantly Black or Indigenous youth, but particularly Black youth, they tend to be over-policed in that community because there are more police present. So behaviour that may go by the wayside in some other places will attract the attention of police and lead into what we already know: When we have carding issues and detentions on street checks, they could have been arrested for simple possession of marijuana in the past.

Even with the current act, it does require a lot of discretion from the police and later from the prosecution. You’re talking about a lot of discretion from police who may have different viewpoints when it comes to especially Black and Indigenous youth.

[Translation]

Senator Dupuis: Ms. Thomas, under Bill C-93, would you say a minor convicted under the Young Offenders Act would be treated the same as someone convicted under the Criminal Code? Under Bill C-93, would a minor be treated differently than an adult who had been convicted?

[English]

Ms. Thomas: The difference between youth and adults sentences or convictions is that with a youth, if there is no offence committed within the first three years of them turning 18, that record is basically suppressed and would not be disclosed.

Where it would pop up is only if they’ve committed an offence and were convicted within the first three years. Then that record would be part of their permanent record.

In the way that they wouldn’t require a record suspension, it would only be if it became part of their permanent adult record.

[Translation]

Senator Dupuis: My question is for Mr. Owusu-Bempah. In your brief to the House of Commons, you referred to a group of Ryerson University students who had developed an application to help people apply for pardons. Do you think universities have a special responsibility in that area, administration or law faculties, for instance? A group called ParDONE comes to mind. It’s a for-profit organization, not a non profit. Can you give us examples of other groups that are developing these kinds of tools?

[English]

Mr. Owusu-Bempah: Yes. I think a better place to look would be to the United States, specifically to California. There we have a not-for-profit organization called Code for America. In the first instance, the Attorney General in San Francisco partnered with Code for America to develop a machine-learning algorithm that would read through previous charging and conviction records to identify the codes for minor and not so minor cannabis offences and automatically file those with the courts for either the clearing of those records or the downgrading for more serious crimes. That has since been extended to Los Angeles as well.

With respect to the role of universities, I’ve come here from the University of Toronto, and we are world leaders when it comes to AI. We have groups in our law school using AI in the legal field already. I don’t see foresee any reason why some type of partnership between post-secondary institutions like the University of Toronto and the federal government couldn’t be struck to provide for or develop these same types of tools in the Canadian context, especially if we were to look first and foremost at the CPIC database that is centralized and within which it would be relatively simple, from my perspective, to identify and then clear those records.

[Translation]

Senator Dupuis: Thank you.

[English]

The Chair: I wanted to ask Senator Pate to answer the comment made by Mr. Owusu-Bempah in referring to the system in California to help modernize the process of criminal records.

Did you consider that in the previous question you asked to Mr. Owusu-Bempah, making the system of criminal record expungement more efficient by resorting to modern technology, as Mr. Owusu-Bempah has been proposing?

Senator Pate: I didn’t, but I would be happy to hear more about it and how it could be applied here in Canada.

The Chair: Do you know of examples anywhere else in the world where that kind of approach using AI has been helpful in addressing this issue?

Mr. Owusu-Bempah: With respect to the clearing of criminal records, no.

Recently, I co-authored a report with one of my graduate students on the emergence of artificial intelligence and machine learning throughout our criminal justice system. Our federal government is already exploring the ways in which artificial intelligence, machine learning and algorithms and the like can be used to not only modernize but increase efficiency and, perhaps, reduce disparities in the administration of criminal justice. Over a year ago now, I proposed that the record suspension or expungement file is a perfect case for that to be applied.

[Translation]

Senator Dupuis: I have a follow-up question. Would you be able to provide the committee with the work you’ve done on this topic? I think it could prove useful to our study.

[English]

Mr. Owusu-Bempah: I would be happy to do that.

The Chair: That might be helpful for the consideration of the committee’s work on other issues, because when we heard the minister and officers from the Parole Board and other agencies, one of the key obstacles we faced in terms of trying to establish a base of information is that all the information is stored in different police headquarters and not all of them are digitized. There is still the old system of paper files. If the information would have been put on the same footing all across Canada, it would have been much easier to develop an algorithm and then establish a kind of reasoning and get the data. But we are in the process whereby the police archives are not stored and treated the same way. Some are digitized and some other police offices are operating in the old style.

Members of the committee, as Senator Dupuis has mentioned, would certainly be interested to know about your study because it might be helpful for the overall approach of this committee regarding the use of AI in relation to criminal justice.

Mr. Owusu-Bempah: I should clarify that my writing on this was an examination of what had been taking place in the United States and pointing to its utility in the Canadian context, as opposed to some kind of detailed study — and I have my academic hat on here — of the technology itself.

With respect to the digitalization versus non-digitalization of records, again, from my perspective, here we’re looking for maximum benefit. I’m not so concerned about those non-digitized records sitting in the archives of some police agency being released inadvertently to an employer or to border services agencies. It really is those records that are kept within the databases, so by starting with those most accessible and working out from there, I think we can increase the utility of what it is that we’re trying to do here.

[Translation]

Senator Dupuis: Even if it doesn’t necessarily deal with Canada’s criminal justice system, I think having your report would be beneficial to us. It could serve as a guide should the committee decide to append observations to its report on Bill C-93. The system is in place in other jurisdictions, so we shouldn’t hesitate to look to those models if they could be of use to us as well.

[English]

The Chair: It’s a question of best practice.

Senator Dean: As you can tell, you’ll find broad agreement around here about the importance, if not imperative, to digitize and automate records that would help with various approaches to suspension.

In this particular case, even if we were to start, in a scalable way, with the CPIC database, it’s my understanding we wouldn’t necessarily find records in that database of simple possession of cannabis. We would more likely find charge or conviction of possession of a controlled substance, so that takes us right back to the drill-down into provincial and local records.

If I can change topic quickly, we saw nine or ten amendments coming out of the House of Commons. Could I ask you for your observations on the two, three or four that, in your view, were most substantive and helpful in moving the markers on this proposed legislation?

Mr. Thompson: I don’t have the exact citation, but I believe there was an amendment that addressed some of the concerns that Professor Owusu-Bempah highlighted in relation to record suspensions being revoked. As I recall, there was an amendment that, in some sense, exempted record suspensions in the context of this process from that revocation process. I think that’s important, if I am remembering it correctly.

The Chair: Professor Owusu-Bempah, do you have any other suggestions in response to Senator Dean?

Mr. Owusu-Bempah: No. I read over them before I came down, and unlike the lawyer who is used to appearing in court with documents, I didn’t print them off, so I’m going to pass on that one. Thank you.

The Chair: Thank you.

Are there any other questions, honourable senators?

I have the pleasure of thanking you for having made yourself available tonight, Mr. Thompson, on behalf of the Canadian Bar Association. We always appreciate the contributions we get from the Canadian Bar Association on the important criminal law policy that this committee is called regularly to review. Thank you so much to yourself and to the Canadian Bar Association.

Ms. Thomas, thank you very much for having made yourself available on behalf of the Canadian Association of Black Lawyers. We don’t see your association quite as often, of course, as the Canadian Bar Association, but you are certainly welcome to signal to the committee. You keep an eye on what is going on in Parliament, so any bill or issue on which you feel your association could contribute to our reflections, don’t hesitate to signal your interest and we will certainly listen to you.

Ms. Thomas: Thank you very much.

The Chair: Mr. Owusu-Bempah, please continue your study of AI in terms of where we can learn something from experiences and approaches that are developed somewhere else, and don’t hesitate to pass them on to this committee. They will be very much appreciated. Thank you again for having made yourself available tonight.

[Translation]

Honourable senators, we will now begin the second half of our meeting this evening.

[English]

Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis?

Hon. Senators: Agreed.

The Chair: Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 1 carry?