Proceeding of the Standing Senate Committee on
Issue No. 27 - Evidence - Meeting of April 18, 2018
OTTAWA, Wednesday, April 18, 2018
The Standing Senate Committee on Human Rights, 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, met this day at 11:33 a.m. to give consideration to the bill.
Senator Jane Cordy (Deputy Chair) in the chair.
The Deputy Chair: My name is Jane Cordy. I’m a senator from Nova Scotia and the Deputy Chair of the Human Rights Committee, and I will be chairing this morning’s meeting.
Before we begin, I’d like all the senators around the table to introduce themselves.
Senator Martin: Senator Martin, British Columbia.
Senator Cormier: I am Senator René Cormier from New Brunswick. Good morning.
Senator Andreychuk: Raynell Andreychuk, Saskatchewan.
Senator Hartling: Nancy Hartling, New Brunswick.
The Deputy Chair: I just left a meeting with Senator Pate, so I’m sure she’ll be here shortly.
Today, we begin our 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. I’d like to take this opportunity to encourage senators to consult the Law Clerk’s office should they plan on moving any amendments to this bill.
For our first panel today, we are very pleased to welcome, from the Criminal Lawyers’ Association, Angela Chaisson, Defence Counsel, Chaisson Law; and Maya Borooah, Defence Counsel, Henein Hutchison.
As individuals, we have Tom Hooper, Contract Faculty, Department of History, York University; Gary Kinsman, Professor Emeritus, Sociology, Laurentian University; and James Lockyer, Senior Counsel, Innocence Canada.
Ms. Chaisson and Ms. Borooah, you have the floor first, and then you will be followed by Mr. Hooper and Mr. Kinsman, followed by Mr. Lockyer.
Angela Chaisson, Defence Counsel, Chaisson Law, Criminal Lawyers’ Association: Thank you. The Criminal Lawyers’ Association is very grateful for the invitation today. Criminal lawyers make it their lives’ work to advocate for criminal defendants who are often the most marginalized and vilified in society. We are too often the only thing standing between our clients and a four-by-six cell. We frequently represent people who are mistreated by those in authority because of their sexual identity or sexual orientation.
We also deal with the effects of criminal charges and convictions on a daily basis. We know that these effects are devastating, especially where convictions are historically unjust and should never have been allowed to happen.
The CLA makes three suggestions and recommendations to strengthen Bill C-66.
First, amend the age requirement to reflect the applicable age of consent. The CLA is very concerned with the age of consent in this bill. The CLA is concerned that the bill violates a central tenet of Canadian law by reaching back and applying today’s age of consent to yesterday’s acts. The bill allows expungement only in cases where the defendant’s sexual partner was 16 years of age or older, but 16 is the current age of consent, not the age of consent that applied at the time that the offence was an issue. Only in 1969 did the law decriminalize sex between men of any age, and they set that age of consent at 21. Meanwhile, the heterosexual age of consent held steady at 14 years old. It stayed there until an amendment in 2008, which raised the age of consent to 16 for all parties.
So Bill C-66 does not harmonize the age requirement for expungement with the age of consent as it was at the time of the offence. 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.
The bill should, at a minimum, be amended to allow expungement in all cases where the sexual activity would have been lawful but for the party’s sexual orientation or gender identity.
Without such an amendment, the bill perpetuates a devastating myth about the LGBTQ community, that same-sex sexual activity is dangerous, devastating and damaging to young people in a way that equivalent heterosexual activity is not and that young LGBTQ people need to be protected from their sexual activity in a way that their heterosexual peers do not need to be protected.
This bill backs up the federal government’s official apology with concrete action. The apology is very significant to the queer community. Its associated concrete action must not, in my submission, perpetuate the very stigma and stereotypes the apology is meant to ameliorate. It is otherwise hollow.
Second, remove the closed list of offences for which expungement is available. The bill provides, as you know, a process for expunging convictions for certain sexual offences, but it is extremely narrow. It allows expungement only in cases of gross indecency or buggery. Criminal lawyers know the injustice of having facially neutral laws targeted against specific communities, be they racial, ethnic or sexual. Police may, in fact, prefer to lay charges that are facially neutral because it allows that veneer of neutrality and it allows them to ward off any allegations of homophobia that would otherwise colour the prosecution. It makes it easier to deny those allegations.
Common charges that have historically targeted LGBTQ communities vary. They have included public indecency, indecent theatrical performances, operating or being found in a bawdy house, nudity, obscenity, disorderly conduct and a variety of non-criminal and bylaw infractions. Those with criminal records because the authorities targeted them with facially neutral laws but targeted them just for being gay outside of the gross indecency or buggery charges will not benefit from this bill as drafted.
My third point involves prosecutorial discretion for new prosecutions that would be historically unjust. It’s related to how police continue to target the queer community in laying charges, present-day charges, for buggery or gross indecency, despite the fact that those charges were repealed in 1988 specifically because they’re homophobic and discriminatory. Nonetheless, police lay those charges today. Prosecution prosecutes them, and courts convict on them.
I would point you to our written submission, which outlines a proposal for how to fix this. This should not happen.
This issue could not be more important to the queer community, and I hope that you hear not only my words today but also my voice because, if there is anger there, it’s because the queer community is angry at this. This has gone on for far too long, and the people who would benefit from this bill are not criminals. They’re humans who are gay and have been criminalized simply for that.
I thank you very much for your consideration today, and I would welcome any and all questions.
The Deputy Chair: Thank you very much. We’ll take questions after everybody has presented. Next, we have Ms. Borooah.
Ms. Chaisson: Ms. Borooah and I have decided to split our time today, so I expect that she will chime in with any questions that you have.
The Deputy Chair: Okay, terrific.
Mr. Hooper and Mr. Kinsman.
Tom Hooper, Contract Faculty, Department of History, York University, as an individual: Thank you, senators, for hearing from us today. Professor Kinsman and I are here representing a group of historians who have spent years studying LGBTQ2 criminalization in Canada. We have been closely following the progress of this bill, and we support its broader aims. Expunging unjust criminal records is a vital part of the apology process to LGBTQ2 Canadians.
As a historian of the Toronto bathhouse raids, I was delighted to hear the Prime Minister’s apology. He understood that there was not one law that specifically outlawed queer sexuality. Instead, it was an intricate web of laws. This is what the Prime Minister said:
. . . discrimination against LGBTQ2 communities was quickly codified in criminal offences like “buggery”, “gross indecency”, and bawdy house provisions.
I was delighted to hear this because, having interviewed several of the men arrested in the bathhouses, I knew what this would mean for them. You can imagine their confusion when I explained that, despite these eloquent words of a Prime Minister, the bathhouse raids are, in fact, left out of Bill C-66. These LGBTQ2 people are excluded.
Senator Cormier, who sponsored this bill, said in debates that he was almost arrested under the bawdy house law in 1977, in the raid on the Truxx bar. If he had been charged and given a criminal record, he might not even be here serving in the Senate today, and I can tell you that that would be an injustice. He was lucky.
Now, I invite senators to view the chart I’ve provided on bathhouse raids in Canada. I’ve provided a copy. These occurred from 1968 to 2004, in the so-called era of decriminalization. More than 1,200 men have been charged under the bawdy house law. That is 1,200 men who did not share in Senator Cormier’s good fortune.
This is not the first time gay and lesbian activists have come before Parliament to urge action on the bawdy house law. In 1982, sociologist George Smith represented a group called the Right to Privacy Committee. This group attended Parliament and purchased a full-page ad in The Globe and Mail calling for the removal of the antiquated bawdy house law. They stood in solidarity with sex workers because they understood the shared experiences of being unjustly targeted by the police.
Senators, you are duty-bound to ask the government why they included bawdy houses in the apology but not in this bill. You must ask them what a bawdy house is in 2018. Why is this law still on the books? Finally, would having consensual gay sex in a bathhouse result in a criminal conviction today? I urge you to include the bath raid survivors and sex workers and all of those who were prosecuted under the bawdy house law. We encourage members of this committee to speak to your colleague Senator Joyal, who has expressed a clear understanding of the bawdy house law after the post-2005 Labaye decision at the Supreme Court. Senator Joyal also understands how other laws, including obscenity, have unjustly criminalized LGBTQ2 people in Canada.
Gary Kinsman, Professor Emeritus, Sociology, Laurentian University, as an individual: Again, thank you to the Standing Senate Committee on Human Rights for hearing from us.
Regarding the apology that was given by Justin Trudeau last November, one of the areas covered in that apology is the purging of public servants and military members. Thousands of people were purged. One of the ways in which the RCMP got information on who was lesbian or gay and who, therefore, could be purged, who was not in the public service or the military but getting information from people who were, was to threaten to lay indecent-act charges against people. The We Demand an Apology Network, which I’m a member of, is very concerned about this criminalization of consensual homosexual activity that led the RCMP to get actual information on people who were then purged from the public service and the military. The charge that was most often laid was indecent act, but that is not covered in Bill C-66. So these historically unjust convictions that were used in the purge campaign are not covered in this bill. This is a pretty fundamental problem with this as part of the apology.
Other offences have also been left out. This includes not only the bawdy house laws that Tom just referred to but also indecent act. These also include the ways in which obscenity legislation has been used in a very discriminatory fashion against lesbian and gay materials and establishments and to portray our sexualities as more obscene and more indecent than similar heterosexual portrayals.
I was involved in the Canadian Committee Against Customs Censorship in the 1980s, in defence of Glad Day Bookshop in Toronto, which is a vital community institution, in providing legal testimony in the Little Sisters bookstore case in Vancouver and in defence of the Body Politic magazine and the many obscenity-related charges that it had to face. These are not covered right now in Bill C-66, and they need to be.
Vagrancy is another charge that has also been used against sex workers and also against gender nonconforming and trans people, who were seen by authorities and the police as not wearing the appropriate clothing for their gender. Again, none of these charges are covered under Bill C-66. Currently, therefore, only a small fraction of the historically unjust convictions that LGBTQ2S+ have actually experienced are covered in Bill C-66. This is a fundamental problem that must be addressed. These offences that we have mentioned and that other people have mentioned in their submissions, including the Criminal Lawyers’ Association, must be included in the list of offences that Bill C-66 covers.
It is crucial that Bill C-66 cover not only consensual activities that took place in the narrow realm of the bedroom or in the narrow private realm but also those consensual homosexual activities that occurred in parks and washrooms, where the participants have constructed relations of intimacy and privacy for themselves. If these convictions are not covered, again, historically unjust convictions will not be covered.
In our view, a historically unjust conviction was a conviction for engaging in consensual homosexual activity. That should be the definition of what a historically unjust conviction is. One aspect of historically unjust convictions has been the differential age-of-consent law for homosexual activity. This has already been covered by Angela in her submission, so I’m just going to skip over this for the purposes of saving time in today’s presentation. But this is a fundamental problem. Bill C-66, as it is right now, exports into the past discriminatory practices towards same-gender sexual activity. And it actually perpetuates all of the notions of having a higher age of consent for same-gender sexual activity that go back to the 1969 Criminal Code reform, which established the age of consent of 21, supposedly to provide extra protection for young people from homosexual activity. If the government doesn’t address this, the Senate doesn’t address this, that discriminatory practice will be maintained in Bill C-66.
As historians, we know that there are major problems with the ability of people to assemble the documentation that is needed to make an application to expunge a historically unjust conviction and to prove consent and all the other matters that have to be demonstrated to meet the provisions of Bill C-66. The government must not only, as part of this bill, produce educational material and publicity around the possibility of having the convictions expunged but also provide direct, material, concrete assistance to people in accessing the documents that they will require. Otherwise, it’s a nightmare. And historians can speak to you about the nightmare of trying to access the documents that would be relevant in this case.
It’s also important that the provisions of Bill C-66 cover not only those who were convicted but also those whose convictions were discharged, as Ronald Rosenes will point out in the next panel. Finally, it is crucial that the documents about our histories not be destroyed, as is suggested in this bill. We can ensure that this information can no longer be used against people who were convicted while at the same time be available for historical research, as the Canadian Historical Association has argued.
On this, we also suggest looking at the brief submitted by the Canadian Lesbian and Gay Archives. In conclusion, the apology will be flawed in major ways if Bill C-66 is not fixed. You have the historic opportunity here, within the Senate and within this committee, to actually fix this bill. We urge you to consider the recommendations we make and that others have made to fix this piece of legislation. Thank you for your consideration.
The Deputy Chair: Thank you, Mr. Kinsman.
Mr. Lockyer, you have the floor.
James Lockyer, Senior Counsel, Innocence Canada, as an individual: Thank you, Madam Chair. Bill C-66 falls squarely within the mandate of Innocence Canada, an association which addresses wrongful convictions. We try to set them aside, and we also try to seek systemic changes to avoid them as much as possible in the future.
We welcome that the bill is available both to those who are wrongly convicted who are still living and also to the dead. We think it’s a shame that the legislation did not automatically expunge the convictions of the deceased persons, like the English legislation did in 2017. In fact, the English legislation led to a very dramatic headline, a very pleasing headline of “Oscar Wilde among 50,000 convicted gay men granted posthumous pardons.” Unfortunately we can’t say this about this bill. It requires applications.
I wanted to address one issue about this bill that causes us concern. A wrongly convicted person has to make an application for ministerial review through a provision of the Criminal Code to the Minister of Justice. It’s a very cumbersome and unfair process that they have to endure, and we’re very glad that this legislation doesn’t require applicants under it to make an application under that section of the code.
However, we feel that the access to justice under this act is wanting. Subclause 8(2) of the bill provides that an applicant must include documents that provide evidence that the activity was between persons of the same sex, that it was consensual and that the parties participating in it were 16 or older.
Subclause 8(3) then provides that an applicant who can’t produce these records must provide an affidavit explaining what reasonable efforts have been made to find these documents. Getting documents of this sort requires considerable skill and expertise. They can likely only be found in court transcripts, court archives, federal and provincial government archives, police records, prosecution records and sometimes perhaps newspaper archives. This is an expensive and time-consuming undertaking for all applicants, and it’s very akin to trying to challenge a wrongful conviction through the ministerial review process. Almost certainly, applicants will need to retain counsel to assist them because they will have no idea how to try and find these records. Why not provide in the legislation that an applicant can simply apply to the Parole Board of Canada and let the board use its powers and expertise to obtain the records? In other words, change the word “must” in subclause 8(2) to the word “may” and that will solve the problem.
The equivalent U.K. legislation, in section 93 of the Protection of Freedoms Act 2012, simply requires an applicant under the equivalent legislation to provide the time and place of the conviction so far as it is known to him or her. That is the only requirement. There is no requirement to produce records. There is no requirement to produce affidavits if those records aren’t available. The onus is on the Secretary of State — in our case, I suggest it should be on the Parole Board — to locate the relevant documents in order to come to its decision under the legislation.
The legislation is undoubtedly important. As my friends have said, it needs to be broadened to include a number of other offences. It opens a locked door for the LGBTQ2 community, but it’s a locked door that, having been opened, needs a wider entrance and needs to be more welcoming as well.
The Deputy Chair: Thank you very much to each of you for your presentations. They’ve been helpful.
We’ll start with the sponsor of the bill, Senator Cormier.
Senator Cormier: First, I’d like to express my heartfelt gratitude for all the work you’ve done in relation to this bill. I should preface my remarks by saying that I am a member of the LGBTQ2 community.
I just want to say as an introduction how impressed I am by the work that you have done and that you are still doing. My knowledge of the situation was very low before I started to read all the documents, so I’m really impressed by that.
Before I get to my questions, I’m going to be honest. As the sponsor of the bill, I’m quite conflicted for a number of reasons. On the one hand, there are the amendments and recommended changes you feel are necessary in order for the bill to be as effective as possible. On the other hand, there is this sense of urgency around passing a bill that addresses certain issues. Those issues are clearly set out in the bill and deserve to be dealt with as quickly as possible. That is the inner struggle I’m having over the bill.
I have serious concerns about three major aspects. The first is the archiving issue, that is, the destruction or preservation of records and the criteria for creating and obtaining a record. The second is the issue around the minimum age, in other words, changing it from 16 to 14 in order to address what you so clearly described. Finally, my greatest concern has to do with the list of offences eligible for expungement given the current Criminal Code, which still contains the bawdy house provisions. That is precisely why Bill C-66 does not include that aspect.
My first question is for the Criminal Lawyers’ Association representatives. I’d like you to enlighten us as to why the bill, in its current form, cannot more broadly address issues to which Criminal Code provisions still apply.
Ms. Chaisson: Senator, I hear your concern about the bawdy house law. Again, this harkens back to our submission on facially neutral laws being deployed as a weapon against the queer community, which has been the case throughout history. Those laws haven’t been ruled as running afoul of section 15 because they are facially neutral, but in my submission, the way that they are deployed as a weapon against the queer community, the unequal application of them, may well violate section 15 of the Charter. So I would like to point your attention to that. It violates the substantive equality by disproportionately affecting a minority community.
It is within the Senate power to craft this bill in a judicious and careful way that would accommodate for the fact that the act of a bawdy house is still on the books. You can look not at the law itself but at its application. Is it being used by police and by Crown prosecutors to target the queer community? That’s a question that can be addressed by the careful hand of the Senate.
Maya Borooah, Defence Counsel, Henein Hutchison, Criminal Lawyers’ Association: I would also add that the fact that the laws continue to exist and may be applied in non-discriminatory ways does not rid them of the fact that they have been applied in discriminatory and unequal ways, particularly to the queer community. The bathhouse raid example is the most obvious.
The discriminatory continued application and historic application can be remedied within the definition of this bill if it focuses on the impact of the laws on the queer community rather than listing offences that have clearly been ruled as no longer active under the Criminal Code.
Senator Cormier: My second question has to do with criminal records. Just so that we are all on the same page, could you briefly explain what a criminal record entails? Some criminal records originate with the province but have an international impact. The issue of how to handle criminal records seems to raise a number of concerns, in terms of elimination versus preservation. I’d like to hear your comments on that.
Also, Mr. Kinsman, I’d like you to discuss your preference in relation to the preservation of criminal records and the approach that should be taken.
Ms. Chaisson: Thank you again for the question. All criminal records are technically federal, because regardless of who has the jurisdiction to try the case, be it the municipality, the province or the federal prosecution service, because the criminal law is, as a whole, under federal jurisdiction, I do not see a jurisdictional issue there.
What I would encourage the Senate to really look at in terms of the criminal convictions are the devastating effects of the conviction. It ruins people’s lives. There are people in this country who have not been able to adopt their own children because they have been labelled as criminals. They have not been able to volunteer at their children’s schools. They are currently not allowed to volunteer at their grandchildren’s schools or attend field trips with them because they have a criminal record that is unjust. Does that help answer your question?
Senator Cormier: Yes, you talked about the impact criminal records have, but I’m still not clear on the challenges when it comes to managing those records. What are the hurdles?
Ms. Chaisson: I see. The hindrances have been well outlined by Mr. Kinsman and Mr. Lockyer with respect to accessing documents related to the criminal justice system. It will come as no surprise to anybody in this room that the criminal justice system is a labyrinth. As Mr. Lockyer pointed out, it takes a great deal of expertise and experience to navigate the criminal justice system, to find out who has the criminal record, who has the records related to the criminal record and how to establish the things that this bill requires you to establish, which are very onerous.
Are you asking if one can even know that one has a criminal record and then what to do about it?
Senator Cormier: No.
Senator Andreychuk: The mechanics.
Senator Cormier: Yes, the mechanics of it. How does it work so we can destroy them or not destroy them? It’s pretty complex.
Ms. Chaisson: It is. I will readily admit to you that I’m not an expert in this particular area. I can say that we do have the Parole Board of Canada, as Mr. Lockyer pointed out. We have a process currently well established in various legislation for a record suspension. Currently, you can apply to have your record suspended. We used to call them pardons. After certain legislation was enacted sometime ago, we now call them record suspensions. You can apply, establish that you are now of good character, that you have moved on and that this was a one-time mistake. Then the criminal record may well be suspended or, frankly, it may not. The process is not very transparent, but it is there, and it works.
So I would urge the Senate in this circumstance that, instead of having a separate process for expungement, know that we actually already have a process set up. I would expect and hope that process would be sufficient for the purposes of Bill C-66. We don’t need another way to get a record expunged; we simply need the criteria to change for those people in the queer community.
Senator Cormier: Thank you.
Mr. Kinsman: In terms of the questions you have asked, it’s really important for there to be a principle underlying what Bill C-66 is doing around historical documents. That principle needs to establish that convictions and records of convictions can never be used again against those people who were convicted. Obviously certain types of identifying information need to be able to be deleted.
But the other side of this principle needs to be that these are part of our histories. If we actually to want understand the policing practices, oppression and marginalization that have affected people in the queer and trans communities, we need these documents to be available to historians.
I would highly recommend looking at the brief submitted by the Canadian Gay and Lesbian Archives about ways that can be accomplished: to make sure this information cannot be used against people, but at the same time, make sure it’s also available for historical research. We don’t want our histories to be lost. One of the dangers of an apology sometimes is that you apologize, and then you can forget about things. We don’t want that to happen. We want to have that history be alive.
I also want to come back to the question you first asked Angela, and I’m not sure if it was directed at me. Anal intercourse is still on the books in this country. It is included in this legislation. There is a contradiction there. It has been challenged constitutionally, but it still exists on the books.
Bawdy house laws have actually been challenged in the Bedford decision in relation to sex workers. I think obviously everyone would recognize that if there was a constitutional challenge around their application to gay sex right now, it would be won. The bawdy house laws would be seen as unconstitutional.
What we are saying is that a historically unjust conviction is a conviction for consensual queer and trans activities. That is the principle that should be established. The test set up in this legislation, which is contradictory in some ways, as I just pointed out, is that the offence has to be no longer in existence — it still exists in terms of anal intercourse — and also has to be constitutionally challenged.
What that means is that you’re actually maintaining in this bill a whole series of pieces of criminalization that have constructed historically unjust convictions for lots of people. You are maintaining them in this bill because the definition of what is historically unjust is so limited and so unclear in the legislation.
What we’re saying is from the vantage point of queer and trans people, historically unjust convictions are all of those convictions that have criminalized our consensual erotic activity. That needs to be what is established here.
I think the argument that is being used by the government is in some ways an attempt to maintain some of these pieces of law so that they could still be used in the present to convict people. I think there is a real problem with that.
I don’t know if that helps to clarify things, but there needs to be a clear definition of what a historically unjust conviction was, and it needs to be clearer than simply saying the test is that it no longer exists on the books, that it has been constitutionally challenged and is no longer recognized under the Charter. It needs to be much clearer than that.
The apology was for historical injustices committed against queer and trans people. I’m using certain types of terminology here just to be quicker. It was not an apology for those people who were charged with offences that are no longer on the books and have already been challenged under the Constitution. The apology was clear that the bawdy house legislation was historically unjust when used against people in the queer community. This needs to be followed through in Bill C-66, otherwise there is a major problem with this bill.
Senator Pate: Thank you very much to my seatmate and sponsor of the bill. And thank you very much, all of you, for attending and for being here.
I want to pick up on two points. One is a Charter question I wanted to ask. But just to pick up on the point you raised around record suspensions, they are actually very different from pardons and are, in fact, very challenging for many people to get access to. I don’t in any way quibble with the impacts of records on people.
This is a question for all of you, but in particular the Criminal Lawyers’ Association. What about an option whereby instead there was something around a time frame that if it was, say, a provincial offence or something international, it would just be automatically deemed to be expunged? What about if summary convictions were deemed to be expunged as well? And if by chance it was proceeded by way of indictable offence that is five years old, it is expunged, or if it’s one of the historical records, it would just be deemed to be expunged. Would that be a solution from your perspective?
Then my second question is about how this bill conforms to Charter values. What is your opinion on that? I know there is some information in the material, and I found that very helpful. Could you expand on that in terms of the impact it has and how we should be interpreting section 11 in particular, and the impact of this bill on those provisions?
Ms. Chaisson: Thank you very much for the question, Senator Pate. I will briefly answer your first question about time frames, summary convictions and them being deemed expunged. In short, yes. I do think that would be a much more workable solution, and I would encourage the Senate to look carefully at that.
My longer answer, of course, comes with the Charter. Despite being a short document, the considerations are, of course, vast.
With respect to section 11(g), it’s a central tenet in Canadian law that you can’t apply the law retroactively. You can’t reach back and apply today’s standards to yesterday’s acts. That’s enshrined in the Charter, as you know, in section 11(g). Now, that law usually applies not in terms of conveying a benefit, which this legislation does, but with respect to more strict criminal law.
So does Bill C-66 breach the Charter? I don’t know. I expect that it doesn’t, quite candidly, but I also expect that’s not the point. The point is it’s a central tenet of Canadian law that we don’t reach back and apply today’s standards to yesterday’s acts.
So does this bill comport with the spirit and the intention of the Charter? No, I do not believe it does. I believe that’s a real shame.
Senator Pate: You don’t believe section 15 would take precedence, arguing this as an equality matter?
Ms. Chaisson: Section 15 deals with discrimination on grounds such as gender expression and homosexuality, as you well know. The issue really is one of a discriminatory differential between LGBTQ sex and heterosexual sex that criminalized LGBTQ people and youth for something that would not be illegal if it was a heterosexual activity. It’s really a fairness question, and it really is an equality question. It’s a section 15 question. I do have concerns about this bill withstanding section 15 scrutiny should it proceed in its current form.
Senator Pate: Thank you.
Mr. Lockyer: First of all, you are quite right. A pardon is a pardon for something predicated on the basis that you committed a crime in the first place. This legislation uses the word “expunge,” which is a far better term and is very different from a pardon, and certainly we like the word very much. As I pointed out, in the U.K., the expungement is automatic in the case of deceased persons.
With respect to the idea that this legislation could somehow violate the Charter, it beats me as to how it could. I think this legislation is very much in accord with the Charter. If it were bulked up a bit, it would be even more in accord with the Charter. Not for a moment does it in any way violate the Charter.
One of the concerns expressed is why it wouldn’t include more offences, particularly the bawdy house offences. 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. That is not a rationale for not including them.
But the other offences as well that you have read in our material, such as the use of the indecent act section of the code or counselling to commit an indictable offence and those kinds of provisions, there is no reason why they can’t be included too, because this legislation does not say everyone convicted ever of gross indecency will have their record expunged. Not at all. It limits the people who can have their records expunged to those who were convicted on the basis of sexual orientation and who were engaged in activity that was consensual. So there is a separating of those whose records will be expunged and those whose records will not.
Likewise, if you include current provisions of the code that still exist, such as indecent act, there can be an identical review of an applicant’s case to see whether his or her conviction was based on those criteria listed in Bill C-66, and if so, the conviction should be expunged. The fact that it can still be an offence to contravene that particular provision, which, of course, would now not be in a way of those within the prohibition or within the conditions set out in Bill C-66, to me is neither here nor there. You are engaged in the same process, whether the law still exists or whether it doesn’t still exist.
Ms. Borooah: I would just add on the Charter point, following up from my two colleagues, that legislation associated with this historic apology that fails to conform with the principles of fairness and equality enshrined in the Charter will be essentially hollow. Whether it technically would be warranted to have a Charter challenge to it is a separate question. But the fact is that, without addressing the difference in the age of consent at the time of the offence, the bill perpetuates the very stigma and discrimination it is meant to address. That remains a significant concern. That’s just going back to your Charter point, Senator Pate. I apologize for the interruption.
Senator Martin: First of all, thank you, senator, for your role on this bill and the leadership you have demonstrated in the Senate. To each of you, your presentations were very concise and clear. I’m just trying to understand, Mr. Lockyer, you said you don’t think this bill will stand up to a Charter challenge?
Mr. Lockyer: On the contrary, I said I think it will completely. I can’t see —
Senator Martin: Will not?
Mr. Lockyer: I say will stand up to any challenge.
Senator Martin: Will stand up, yes. Okay. That was the difference there.
You mentioned the U.K. example, and there are some other examples, like in Australia. These are similar jurisdictions. We’re always making such comparisons or contrasts in looking at what we would do in Canada that would apply effectively here. But, on this bill as is, sometimes we need to do incremental steps to get to the end. We obviously want to include more offences, as you say, to be applicable. But until that is possible — Because I would imagine that with some of these issues, we have to do further consultation, investigation. It may not be achieved just through amendments. I’m wondering whether you feel that the bill as is, even though it’s not complete, would be, potentially, an incremental step towards achieving a greater end or whether you feel we should, as a Senate, look at how we can amend, whether or not we’ll win that debate with the other side. But, ultimately, if we do pass the bill as is, will you feel that it is a step towards achieving that greater end?
Mr. Lockyer: Certainly, from my perspective, to use the vernacular, what you’ve got in Bill C-66 is a heck of a lot better than nothing, no question at all. We’re just suggesting some changes that could make it better because sometimes, once something is enacted, it sort of gets written in stone, and it’s hard to come back to it. I do note that the legislation allows the Governor-in-Council to increase or add in other crimes.
It does seem to me, though, that perhaps this committee could, at a minimum, bring in the bawdy house provisions, given that they are unconstitutional and that they played a huge role in the discrimination against the LGBTQ community.
On the other suggestion, the access-to-justice issue, from the perspective of our organization, which brings petitions forward for people who have been convicted of crimes they didn’t commit, it’s the access-to-justice issue that makes it so hard for them in terms of being able to afford a lawyer and in terms of the hurdles that they have to surmount to get access to justice. I don’t understand why this legislation requires the individual to set about trying to pull together records that are hidden in very obscure places and extremely hard to find. Someone mentioned that you would have to make all sorts of information requests, and each one can take months. Then you get months piled onto months. Why not just change that word to “may” from “must, ” and you have solved that problem? The access-to-justice issue then goes away because it becomes either the individual can do the work or the individual can ask the parole board to do the work, and the parole board can do the work. That seems to me an easy, simple change.
The Deputy Chair: Both Mr. Hooper and Mr. Kinsman would like to respond. I ask that you do it quickly. We have five minutes left, and we have one senator still to ask a question.
Senator Martin: I’m curious about whether any of you have had a chance to inform government or were consulted during the process of this bill being formulated or whether you spoke in the house. Is this the first time you’re appearing on Parliament Hill for this particular bill?
Ms. Chaisson: That is correct, senator. We were not consulted.
Mr. Kinsman: We were not consulted.
Mr. Hooper: The historians tried to go to the house and speak to this bill, and we were denied.
Senator Martin: I would like to hear the other comments.
The Deputy Chair: Concisely, please.
Mr. Hooper: On the issue of incremental change, I just want to reiterate that, in 1982, George Smith from the Right to Privacy Committee, right after the bath raids, came to Parliament and told everybody here about the bawdy house law. If you look at my chart, after 1982, the raids continued. If Parliament had acted then, we could have prevented a whole bunch of injustice. When you say incremental change, I wasn’t born in 1982. I wasn’t even alive yet. So incremental change? What does that mean? We should deal with this now.
Mr. Kinsman: I think it’s really clear. I don’t think there is actually a contradiction between the importance of this bill and urgency because I think the recommendations and the amendments that are required are actually becoming really clear. We make a number of them really clear. It can be done pretty simply and fairly quickly. People have waited a long time for this type of legislation, and it needs to be good, adequate legislation, not legislation that is fundamentally flawed, as this legislation currently is.
The Deputy Chair: Thank you both for being concise. Senator Andreychuk, our last questioner.
Senator Andreychuk: I have a number of legal questions. I don’t think I can do those in five minutes, unfortunately, as lawyers know. I think I’ll point it to the Criminal Lawyers’ Association. You said deeming might be a way out to Senator Pate. How do you get assured? When you deem something, what happens the next day? Because those records are still all over the place. They are still complex. How do you have any assurance that they are, in fact, expunged with the deeming provision? So that is the practical administration of justice. I see it from the act of deeming. But I would still say I wonder: Is it really being done?
I recall when we changed the national registry on voting, and certain things were supposed to happen. But they just didn’t because there weren’t the resources. There wasn’t the understanding. There wasn’t the training. So would that, in the long run, help you?
Ms. Chaisson: It certainly —
Senator Andreychuk: It helps on some issues, but —
Ms. Chaisson: Yes. What you’re talking about, senator, really encapsulates the frustration that our clients have when they are no longer under criminal charges, whether that’s because of a record suspension, whether it’s because the charges are withdrawn, or whether they have been completely acquitted and exonerated. There is a frustration when the records actually take time to be physically changed in certain databases. That can be frustrating. In my submission, it’s a small price to pay for this legislation to go forward in a way that has an appropriate scope.
There are certain ways that you can check to see if that’s actually been done. Individuals can apply to have a criminal record check. That is onerous on them. It does involve filling out forms, attending a police station, et cetera, but you can check. You can have a check and balance in that respect.
Senator Andreychuk: I have done those. That’s why I’m asking the question. It’s still difficult. The records are not complete.
Another area just for the lawyers is that clause 23(2), the schedule, indicates that this is an incremental piece of legislation, but are you reading 23(2) to mean any offences in the future? Or could they encompass offences that are no longer offences under present law? Because we’re talking about bawdy house, et cetera, and we’re saying it no longer exists.
Could the government, under 23(2), take action to add bawdy house, or is that retroactive and couldn’t be added? I’m putting it in layman’s terms.
Mr. Kinsman: We received a letter from Ralph Goodale yesterday. This is a response to a notice that was sent to him a long time ago. So it took a long time to get a response. It was quite adamant in arguing that the bawdy house laws will not be included in Bill C-66.
This is a real problem, because if you’re actually talking about historically unjust convictions, the vast bulk of them are not about gross indecency, buggery and anal intercourse. They are about a whole array of other offences. The large mass raids were around the bawdy house laws, so this needs to be included, and the government actually needs to be pushed. I would urge senators to stand up for what is right and not just kowtow to what the government wants to have happen right now.
Ms. Chaisson: I addressed this issue in my written submissions, and I would be happy to speak with you about that as well. I encourage you to peruse those written submissions.
My take-away point is this: Yes, this legislation could be incremental, and it could be a piece of incremental change, but it need not be, and in my respectful submission, it should not be. Queer people have carried this hurt and injustice around with them for far too long. You have the opportunity to get it right and get it right the first time. Please take it.
Senator Andreychuk: I have one more question on the archives. There are witnesses who actually want their records expunged. You made the compelling case, Mr. Kinsman, that for historic reasons they’re necessary, that we shouldn’t wipe out some of our history to that extent. This is the same argument archivists make on when and who can have access, and the 99-year rule that used to be in place.
Who should we look to in this? It isn’t just broad historical records that are being kept. Who has the right to say their records should continue?
Mr. Kinsman: Obviously, the people who have the most right to do that are the people who were directly affected, the people who were charged and convicted, which is why at least there should be a provision in this bill for people. There might be lots of people who say, “I don’t care if this is expunged or not,” or “At least I want historians and archivists to know this happened to me.” There are lots of people like that. Maybe I don’t want my name and identity included, but I want this information to be available for the historical record. To me, that’s fairly easy to accomplish. You need to have principles that this information can never be used against people. You’re going to go with the decision of the people who were convicted, but this information is also made available to historians and archivists so that our history is complete and we don’t lose vital information for our history.
I think it’s possible to do it, and I would urge you to look at the submission from the Canadian Lesbian and Gay Archives, which addresses these questions much more centrally than I’m able to do here.
The Deputy Chair: Thank you very much to our witnesses. I know it’s a lot of work to make presentations. It’s a five-minute presentation, but it’s probably five hours getting ready for it. I’m pleased that while you weren’t invited to the other side, you were able to make your presentations here today. We appreciate your input, and we will certainly look at it while we’re doing clause-by-clause consideration of this bill. Thank you very much.
For our second panel, I’m pleased to welcome, from the Quebec Gay Archives, Jacques Prince, President, Board of Governors; and Ross Higgins, Member, Board of Governors and Head of Collections. As an individual, we welcome Ronald Rosenes, C.M., Community Health Advocate and Board Chair, Canadian HIV/AIDS Legal Network. And from the Just Society Committee, we have Martine Roy, Member.
Mr. Prince and Mr. Higgins, we’ll begin with your opening statements. I’m not sure if you’re both doing a presentation or if one will be.
Ross Higgins, Member, Board of Governors and Head of Collections, Quebec Gay Archives: We’re both going to do it. I will speak first in English, and my colleague will speak in French to give us full coverage.
I would like to thank the committee for this invitation to express our points of view on this legislation, and I welcome the initiative of the Canadian government to try to redress the wrongs that I have lived with since I was six years old and became aware of being homosexual.
I have been working with the Quebec Gay Archives, as we call them in English, informally since we founded the organization in 1983. Previous to that, I was active in a variety of groups. I am originally from Toronto. I moved to Montreal in 1975 and ended up right in the middle of the most ferocious wave of repression the homosexual community had experienced since the early 1950s. I went on to do a PhD in anthropology at McGill on the origins of the sense of community among gay men in Montreal.
I’d like to speak about the issue of the coverage of this bill, because as many other intervenors have stated, it does not go very far in addressing the types of legal actions that were taken against us and certainly not the cultural context.
Just to refer to my own research, I did life history interviews with 30 men who had been in the gay community in Montreal before 1970, and one of them was arrested in 1956. He was in the entranceway to a bar and got into a conversation with a man who asked him to come home. As they passed a laneway just up the street, uniformed police stepped out and arrested the men. There had not been any gross indecency they could reasonably claim up to that point, so the man I interviewed was charged under a part of the Criminal Code I had never heard of: obscene and insulting language.
That kind of thing is not at all addressed by this legislation.
But the police were using any kind of legislation they could, and if there was no legislation, as at least two of the witnesses I interviewed for my research said, they would just use random violence. They would pick out people, take them to a vacant lot somewhere and beat them. That was the kind of condition people lived in during the 1950s.
On the other hand, most of the 30 men I interviewed had not been affected. Only two of them had had encounters with the police.
But in the early days of the movement in Montreal, the first gay liberation group was called Le front de libération des homosexuels. It was founded in the spring of 1971. That summer, they participated as the first gay contingent in Montreal to appear in a public parade — against Confederation, it must be noted. In the summer of the next year, they moved into a new office, and they had a party to inaugurate their new office. The police raided it, because they had not gotten a liquor permit. All of the people at the party were taken to police headquarters and held in a cell overnight in a space where they had only enough room for each person to sit on the floor, with a toilet in the corner.
The same kinds of conditions applied when people were arrested in 1977 during a raid at a bar called bar Truxx in Montreal. That was the real turning point in the development of the movement there. But 145 people were taken and held in similar conditions. They were charged under the bawdy house laws. The police started to use the bawdy house laws in Montreal at the Aquarius Sauna in 1975 and continued until they realized that it wasn’t very successful as a legal strategy. In the case of the Truxx raid, it took five years, but all of the people who had gone together into the group defence had their charges withdrawn.
I would like to give a couple more personal experiences of these types of situations just to underline the importance of this and to illustrate the ways in which, even if people weren’t convicted, their lives could be very severely disrupted. Those who were convicted under the gross indecency legislation deserve the consideration the bill is trying to give, with all the limitations.
I’ll leave time for my colleague to give more archival aspects.
Jacques Prince, President, Board of Directors, Quebec Gay Archives: Thank you for inviting us and giving us the opportunity to share our views with the committee.
I’ll start by telling you a little bit about myself. Back in 1985, I earned a master’s degree in library and information sciences, with a specialty in archival management, from the Université de Montréal. I spent 25 years working at the national library of Quebec, which became the Bibliothèque et Archives nationales du Québec, where I was in charge of literary and fine arts archive acquisition. During my time on the National Archival Appraisal Board, I specialized in the monetary appraisal of private archives.
Ross Higgins and I founded the Quebec Gay Archives in 1983. We are still involved with the organization and are pleased to be here today to speak to the issues raised in Bill C-66.
We agree with the Canadian Lesbian + Gay Archives, or CLGA for short, regarding its recommendation that clauses 17 and 19 of the bill be amended to prevent the destruction of archival records. Having paid close attention to the work produced by researchers, we believe these records should not be destroyed given their historical value. We also fully endorse the CLGA’s other recommendation that Library and Archives Canada be consulted on the process for preserving these archival records.
Furthermore, we recommend that Bill C-66 be amended to establish a process for the responsible preservation of these records, in other words, a process that preserves the documents in question while respecting the privacy of the individuals concerned. We believe it is possible to work with the records without destroying them completely. As an archivist, I can tell you that there are methods to address the concerns of those who would restrict consultation of the documents. Keep in mind that archivists and researchers are professionals who approach their work ethically.
Researchers who visit our repository to consult our archives are not there to sensationalize issues or expose the names of the individuals concerned; rather, they are there looking for information on much broader issues. I must tell you that, in my 25 years of experience, I have never seen a researcher use our collections for anything other than serious work.
Ronald Rosenes, C.M., Community Health Advocate and Board Chair, Canadian HIV/AIDS Legal Network, as an individual: Thank you very much, senators, for the opportunity to be with you today and to have the opportunity to share some of my own personal experiences with you. I hope you’ll be able to extrapolate some larger issues from the stories I’m about to tell you.
The night of February 5, 1981, remains seared in my memory, despite many valiant efforts to put what occurred behind me. I found myself at the Roman baths on Bay Street in Toronto, a club for men seeking to meet other men for consensual sex, a place I had visited on several occasions as a 34-year-old out gay man seeking to enjoy newfound sexual freedoms in a supposedly safe space. But what happened that night was my first-ever encounter with the state and a police force that took it upon itself to enforce the archaic bawdy house laws that still exist in the law to this day.
We were rounded up brutally, called “dirty faggots” and arrested as found-ins in a common bawdy house. The police may have suspected that money was being exchanged for sex, but this was never proven in court. The premises were ransacked at all of the city’s bathhouses, and several closed their doors permanently. All of this happened really without due process.
During the apology, Prime Minister Trudeau mentioned the bathhouse raids and the bawdy house law, but we have, to date, really seen no actions to back up his words.
I’d also like to draw your attention to the fact that the bawdy house law has been used against sex workers, as was pointed out earlier, and that they also continue to be criminalized under the newer legislation, the Protection of Communities and Exploited Persons Act.
At the time, we were dragged through the courts and publicly humiliated. I ended up being put on the stand, where I had admitted that I had been at the Roman steam bath. Yes, I told the truth, and I became one of some 36 men, out of over 300 who had been arrested, who were convicted and made to pay a fine — in my case, the grand sum of $35, which is really an insignificant amount compared to the sense of shame we were made to feel as our names were read out in open court and dragged through the press.
Fortunately, my own self-esteem has remained intact. It was pretty good at the time, all things considered. I was brought up with the advantages of a loving family, loving partners and a good education, but I can never forget what happened the night I was wrongfully arrested and convicted, having, in my mind, committed no crime.
Others were not so fortunate. As you are well aware, many lives were ruined by exposure in court and the press. The bathhouses at the time were often frequented by men who went home to families unaware of the complexities of the sexual orientation of their spouse, their father, their brother or their sister. Many were from cultures where homosexuality was deeply frowned upon.
Tim McCaskell, an LGBTQ2S+ and, like me, an HIV activist, wrote about that night in his book, Queer Progress. He had been awakened by a late-night phone call and came running over to the bathhouse where he encountered a man who was clearly distraught. He writes:
“They’re arresting everybody. I don’t know why . . . .” He had what seemed to be a Portuguese accent.
“They let you go?”
“Yeah. . . .”
“They can’t do this to us. They got no right. It’s not hurting anybody. They came in like an army. They called us faggots. What am I going to do? I’ve never been in trouble in my whole life. What’s going to happen? Will they put our names in the newspaper?” He was close tears.
Really, to this day, it still shocks me how traumatizing and stigmatizing the bathhouse raids proved to be. At least two men are known to have taken their lives. To this day, I am one of the only people arrested who is willing to talk about the bathhouse raids publicly.
The unrelenting power of stigma continues to cast a shadow over many lives, and for that reason, I’m here today to appeal to your good judgment to ensure that the records of people like me, people who were wrongfully convicted of being found-ins, are treated on an equal basis in the proposed legislation — we heard quite a bit about it this morning in the earlier presentations — but that we be treated no differently from all of my queer sisters and brothers who were either fired from the civil service or dishonourably discharged from the military.
I’m carrying with me today copies of the records that we found in the Toronto police files, which I believe I sent for your consideration.
So it came to me, really, as a great surprise that, through a request for information, we discovered that these records of my arrest could still be found in the police files in Toronto. If this is true for me, I suspect it’s true for others, so it’s really on behalf of all of us, including those who are to this day without voice, that I’m here to seek inclusion in Bill C-66. I think it’s perhaps a cliché, but it is the right thing to do.
I would also like to say again at this point the degree to which I feel that my conviction and the convictions of others caught in the bathhouse raids are only some of many unjust convictions that the legislation needs to consider.
Bill C-66 has been described by Member of Parliament Randy Boissonnault as a law intended to address criminal offences that were used to victimize LGBTQ2S+ systematically, including those of us arrested in the bathhouse raids of 1981.
The expunging of all of our records does not mean, however, that I personally wish that these important documents were to disappear completely. I would give permission, as long as there is respect for my confidentiality and that of others who would decide, like me, that they would like to see records kept in historical archives, either at academic institutions, the Canadian Lesbian and Gay Archives in Toronto or, as my colleagues have mentioned beside me, in Quebec and other provinces. They simply should not reside any longer in the files of the police force that, in my opinion, abused its power in 1981.
It’s important that we create some closure around these painful moments in our history. I’ve added some words here about the importance, I think, that we need to provide for future unjust convictions that may well be overturned in cases related to sex work, as well as to people who have been criminalized for their failure to disclose their HIV status to their sexual partners.
There are those who will say that the raids came about due to attitudes and opinions, that is to say, prejudice against homosexuals and homosexuality that were prevalent in society at the time and persist to this day. Laws do not necessarily change prevailing attitudes, but they are absolutely necessary for the protection of our human rights and represent a necessary step in the ongoing struggle to promote tolerance and respect for difference in Canadian society.
Thank you very much for the opportunity for me to share my personal story with you today. Thank you.
The Deputy Chair: Thank you, Mr. Rosenes.
Martine Roy, Member, Just Society Committee: Good afternoon, honourable senators. I’m not sure whether you are familiar with me or my story, so I will tell you a bit about myself as well as what I’ve been involved in. I launched the class-action lawsuit seeking an apology for the LGBTQ community, as well as a settlement.
In 1983, at the age of 19, I joined the Canadian Armed Forces to train as a medical assistant. Two years later, I was put through an interrogation and sent to a psychiatrist before being fired for homosexuality and sexual deviance.
My name is Martine Roy, and I sit on the Just Society Committee, which fights for human rights under the umbrella of the Egale Canada Human Rights Trust. Our committee chair, Douglas Elliott, couldn’t be here today, as he is about to give a talk at Harvard Law School on the LGBTQ purge. We did, however, discuss our submission to the committee, and Helen Kennedy, Egale Canada’s executive director, is familiar with the content. She is currently attending the Commonwealth summit in London.
The expungement of historically unjust convictions is one of the measures the Just Society Committee called for in its 2016 report, entitled Grossly Indecent. We are glad that Canada is taking steps to right those historical wrongs, as are Germany, Australia and New Zealand.
We are also glad to see that it is possible to add other offences to Bill C-66 through regulatory measures. We share the concerns expressed by Mr. Kinsman and others regarding the bill’s shortcomings. Despite those, however, it remains a good bill, one that is groundbreaking in 2018.
A bill is essential to establish a foundation, as well as to make reparations for historical injustices going forward. Heaven knows I am one of those people who suffered, having spent 33 years living in infamy. Those wrongs include the convictions of individuals arrested in raids on LGBTQ clubs and bathhouses.
If we had been consulted, we might have suggested changes to the bill before its introduction in the House of Commons. We could have enlarged its scope. Notably, we are concerned that the laws regarding bathhouses that have been used against our community are not included by name in this bill.
It is also ironic that the bill will allow the expunging of convictions made under section 159, while section 159 itself has not yet been repealed. This ambiguity should bring shame to Parliament.
We also have concerns around the process. We need to see the regulations to know whether the process will work as well as the one the Australian State of Victoria adopted, which provided victims with free legal aid. The Parole Board of Canada has no expertise in LGBTQ2 matters and is therefore in need of appropriate training.
However, Bill C-66 has the merit of containing the essential principles of recognizing and providing the pathway to expunge unjust convictions. There is no more justice in providing victims with the option to have their records expunged than in maintaining, as the sole option for these victims, the path of seeking pardon to the Crown — the very same Crown that is responsible for their unjust convictions under discriminatory laws and policies.
This bill allows government and lawmakers to recognize that for centuries, Parliament created and sustained laws that were discriminatory in nature. Such laws and discriminatory measures predate Canadian Confederation; they were very much the result of colonialization and the imposition of cultural and moral values that were European and Catholic in nature.
For thousands of years, Indigenous people lived on Turtle Island, their name for North America. They had a religion, but no concept of sexual sin, which was unfortunately introduced by the colonizers. In the 18th century, the French were defeated and lost their grip on Canada; British colonialism therefore took hold, with the British introducing their penal code, including Henry VIII’s infamous law against the abominable vice of buggery. That was the basis for section 159. The 19th century brought a decline in the tradition of two-spirited people, with the residential school system being used as a tool for cultural assimilation against the backdrop of colonization and Christian missions.
Despite its flaws, Bill C-66 addresses the overriding intolerance of section 159 of the Criminal Code, a key tool used to combat homosexuality. We fear that, if the bill is sent back to the House of Commons with amendments, in an effort to make it perfect, it could fall by the wayside altogether. It could fall prey to the same political hurdles currently blocking the progress of Bill C-32 and Bill C-39, which would repeal section 159 of the Criminal Code. In our view, it would be dangerous to sacrifice a good bill in the hope of achieving a better piece of legislation. Its shortcomings are not insurmountable. There is a quote that says it all.
As Voltaire said, perfect is the enemy of good. We support the passage of Bill C-66.
In conclusion, we support Bill C-66 as it stands and want to see its timely passage. The LGBTQ2 community has been waiting since the 18th century.
It was a very long time ago. We have been more than patient. It is time for change and innovation.
The Deputy Chair: To the witnesses, your personal stories have told us about a very dark time, unfortunately not that long ago. Thank you very much for sharing them with us. Your testimony will certainly help us when we are studying the bill. I will start with Senator Cormier, the sponsor of the bill.
Senator Cormier: Thank you for your presentation and for some stories that are too present in our society and were much too present in our society.
I found your words very moving. My question is for Ms. Roy.
Ms. Roy, I want to thank you for the incredible job you’ve done on your submission; it sheds a historical light on the current conditions in which the LGBTQ2 community lives. I gather, from your presentation, that the bill, as written, meets the most pressing requirements. You also mentioned the regulations, in reference, of course, to how the bawdy house provisions might be addressed.
Concretely speaking, I’d like to know how you would address that issue, either in the bill itself or in the regulations.
Ms. Roy: I would use the regulations to correct the problem, once the bill had passed. The police conducted raids on private homes as well. Being a lesbian in the 1980s was not any easier than it is today. Then came the 1990s and the AIDS crisis, and so forth. I think Parliament has to take the time to pass legislation that provides a good foundation. Afterwards, it can take the time to measure the impact. The term LGBTQ2S is wide-ranging and so, too, is this effort. To me, it represents distinctions. There are many because everyone has a distinguishing characteristic. Similarly, Parliament needs to look at all the angles and make the necessary amendments.
Something has to be done. This has been going on too long, and the status quo is not a solution. This is where we are, and we are definitely on the right track. I think the bill should be passed so that we can continue to make progress. A very articulate apology was made, and it included everyone, not just members of the military or the public service. Experience has shown that amendments are possible after a bill is passed. Countless pieces of legislation have been implemented and amended afterwards. I don’t see why that should stop us.
Senator Cormier: My next question is for Mr. Rosenes. I’d like to start by thanking you, Mr. Rosenes, for everything you do to fight the stigma those with HIV/AIDS suffer from. Many of us have lost people we knew.
In your submission, you recommend that the committee open up the list of eligible convictions, as opposed to limiting it to the offences set out in the schedule. Clause 23 of the bill gives the Governor-in-Council the discretion to add convictions deemed to be historical injustices.
In light of that, would you not say it’s worth passing the bill in order to establish a much-needed foundation, as Ms. Roy was explaining? I’d like to hear your thoughts on the challenge we have on our hands, in other words, reconciling the bill as written with its many shortcomings. Do you agree with Ms. Roy that the current iteration of the bill is the first step in the right direction?
Mr. Rosenes: I would say yes. It’s a step in the right direction.
I will continue in English, if that’s okay.
I have taken a relatively narrow approach given that I was dealing with the personal issue of the bathhouse raids, and then, through my work in HIV, beginning to think about the larger implications. I think there are a couple of things.
First, yes, it’s a step in the right direction. For me, the question is what can be done now to improve the legislation and the bill before it’s approved. I think quite a bit can and should be done. The bigger question is to what degree — again, I’m not a lawyer, and I don’t specialize in legal issues — can the bill itself be amended or have the flexibility to allow for cases in the future, which I think are highly likely and which are going to require similar attention where the law is going to change.
This law is reaching back. I follow the arguments about the degree to which that could provoke a Charter challenge. The law is reaching back to correct injustice. In the future, I believe there will be a necessity to look back and correct injustices related to sex workers and others.
I’m particularly concerned right now in an area where I have even more knowledge, namely, failure to disclose one’s HIV status. We now know Canada is, unfortunately — and I use this term ironically — a world leader in the criminal prosecution of people, using aggravated sexual assault law for failure to disclose their status.
Increasingly — again with the support of the federal Minister of Health and the ministers and the attorneys general at the provincial level — we’re coming to realize that the law needs to catch up with the science. As it does so, there will be cases where people will be found to have been wrongfully convicted for their failure to disclose, simply because under the existing law, despite the fact that they had no intention to harm another person, despite the fact that no transmission of HIV occurred, they nonetheless ended up being sentenced to long terms in prison. Our research has shown that those terms are longer than people have been given for rape under the intended original application of aggravated sexual assault laws. A fundamental injustice is going on. I think it would be very important for the laws for Bill C-66 to have a sufficient amount of flexibility so that in the future other wrongful convictions such as the ones I’m describing could be addressed.
Senator Cormier: Do you not think clause 23 provides the flexibility you’re talking about, since it gives the Governor-in-Council the authority to add offences? As I understand it, the purpose of the clause is to allow for the inclusion of other injustices. In light of the fact that more and more situations are emerging as injustices, my concern is figuring out where the bill currently stops and how much flexibility it offers going forward.
Mr. Rosenes: This is clause 23, which is part of —
Senator Cormier: The bill gives the Governor-in-Council the option of adding other historical injustices to the list. I think the government knew from the outset, when it was drafting the bill, that even though the legislation wasn’t all-encompassing, it did provide the flexibility to deal with other issues.
Mr. Rosenes: If that works, fine. It’s not for me to say whether that’s going to work. I think the major concern I’m having now is will you be able to reach back, using clause 23, to do what you intended to do? If it does, that will answer the question, solve the problem, I think. However, if it doesn’t, and if there could be a Charter challenge around that, then it’s going to be a thorny issue.
Senator Andreychuk: I’m going back to the archives, which is always a difficult issue. I personally may have an injustice that the government perpetrated on me, but there is the historical record that belongs to all of us. Where do we draw the line here, and who maintains the more public record? We could say no, expungement means what the words were intended to mean, namely, that they never existed. That’s really what an expungement is as opposed to a pardon or some other historical way of ameliorating the wrong. If we say expungement, it means it’s gone. However, I’m hearing you say “gone but,” and then that someone should hold the records and handle them responsibly. Well, if it’s the National Archives, there is public scrutiny of that. If it is within your community, how is that then handled?
The conundrum I have is the balance of the individual’s rights and the public’s right. I don’t know if archives have solved it because we still get archives amendments to bills, and I happen to have been here when we wrestled this one for a long time. I’m not sure we struck the right balance because people were adamantly saying, “My files are my files.” Then there were the historians saying, “No, it’s a public record.” Then how do you keep them? Who scrutinizes it? Who is to double check? That is of concern to me.
Mr. Higgins: There has always been a problem with this type of question for our archives even, because we have lists of members of groups and things like that — that is, personal names. In the agreement that we ask researchers who come to consult our archives to sign, they say they will not use the names of individuals who did not play a leadership role or who had no reason to have their stories publicized. Basically, it’s the ethics of the researchers and the institutions.
Senator Andreychuk: But your institutions are not public institutions, they’re private.
Mr. Higgins: No, but we do have information.
Senator Andreychuk: That’s the dilemma I’m having. If they are public, then we know how they can be monitored, and we can build in some consequences. If they are private, there is a certain high level of trust. That’s what I’m questioning. How do we achieve the trust? I don’t know your institution. You’re saying “ethical behaviour.” Well, most rules are not made for those who are ethical, the 99 per cent. They’re for the one that fouls the nest. What’s the answer to this?
Mr. Rosenes: I’m having some thoughts about this. For some reason, they are making me think about the recent Facebook dilemmas around handling information and particularly the issue related to permission.
You may or may not know this, but one of the applications that men use to find other men for dating and sexual purposes, called Grindr, allows men to state their HIV status on the application. This information, including HIV status, was being given to third-party application developers. Here you had men putting their HIV status online in a way that anybody could find it, so it’s in the public domain.
To answer your question, in the question of my personal police records, these are not in the public domain, anywhere; nobody can easily find them. If I say that I want an archive to be able to have possession of them, I think it requires my personal permission, just as we want these Facebook-like applications to do. That is, don’t be doing things without letting me know that you’re actually going to be doing them. If it’s already in the public domain, that may look a bit different. I think we have to be very careful that we distinguish between information which is not in the public domain and over which there can still be some control exerted, permissions granted and confidentiality ensured, and understand that if information is already in the public domain, the way you handle that may have to look a little different.
Ms. Roy: Personally — because I had a file — I think it should be destroyed if I want it to be destroyed. If I don’t want it to be destroyed, then I think I should be the sole owner of it. If I want to share them with the archive, I will do so as a civil servant. If I believe that my story is important, which I believe it is, I will share it. But some people don’t want to share it. Some families don’t want to share it. I don’t think it should just be taken and given to the archives, no. I think it belongs to someone, and that person should take the decision at the end of the day.
Senator Cormier: I have a supplementary. Is it possible already for the victims to decide?
Ms. Roy: Yes.
Senator Cormier: So it’s already possible.
Senator Andreychuk: Before this law, a public record is a public record. You may have trouble finding it, but if you’re convicted, it’s somewhere in a public domain. What we’re saying now is that we are going to expunge that.
Mr. Rosenes: Just to be clear, I gave the archives in Toronto my permission to preserve my records related to the public bathhouse raids.
The Deputy Chair: If this bill passes, the government has set aside $4 million to help people have their convictions expunged and to provide publicity so that people understand that that can happen. Sometimes when we’re in Parliament, we think everybody knows about laws being passed, but the reality is that unless you really are a stakeholder and really paying attention, you might not even have any idea that this bill is before the Senate and if it passes.
So what would be the best way for this money to be spent to ensure that as many people as possible who want their convictions expunged would be able to do that?
Ms. Roy: We’re doing it right now as well for the LGBT purge. It’s to be able to have a certain communication that will go on social media and in newspapers. We should use the LGBT community, also, but at the same time, I think there are people not from the community who got arrested as well. I think it should be at large.
At the same time, I think we should give some legal aid for people who don’t know how to go and ask for their record or to get it expunged, or to find out if they have one. They might not have the financial state to be able to do it.
A legal clinic or something like that would be a good advantage. Maybe it could be a clinic that would be mobile that could go to different provinces at different times.
There are a lot of ideas to help people to get that expunged. For me, personally, it felt really good that I don’t have that in my file anymore, and that I’m not seen as a sexual deviant anymore.
Mr. Higgins: I have a more general comment. Certain references have been made to the bawdy house law. The committee should be aware that for Montreal, in particular, the bawdy house laws were charges faced by most men in the past 40 years. I don’t know the statistics for indecent acts and things like that, but they started in 1975 with a few arrests. In 1976, 90 people were arrested in a bathhouse. Then it’s not just bathhouses in Montreal from then on; bars are raided. Going out to have a drink meant that you could be arrested and charged as a found-in in a bawdy house. People’s lives were greatly affected by that. Hundreds of people were affected, up to the raid on the bar called Buds in 1984 — for which, subsequently, the police apologized. That’s really the main theme of repression in Montreal during those years.
Senator Pate: I don’t know if you were here when I asked the previous panel, but I’m going to ask you this, and it links from Senator Cordy’s question.
If the process was a deemed process — that you were deemed to have a record expunged as opposed to having to apply — what would be your thoughts on that? If that were true — I’m looking at Madam Roy — would you still want to see the monies used for legal clinics, or are there other public education activities that all of you might prefer to see that would use those resources? I like the idea of a roving clinic, but maybe it would be a roving educational bus or a rainbow train. I don’t know — something.
Ms. Roy: What is difficult right now is to find those files. Yes, I would love you to find them and give you the responsibility. Please do so. But I’m not sure it is possible.
All different police departments — I am listening about Montreal. It’s really touching me, because I’m from Montreal, and I knew about all those stories. At the same time, I know that the Charter of Rights and Freedoms arrived in 1977. If I was in a Quebec army, I would not have been let go.
For me, it would be better. I think people know who got arrested; we know. I know what happened to me. They all know. I think we should ask.
It would be an easier and faster process, I believe.
Mr. Higgins: I don’t know. I had the experience of trying to recruit people to book my interview process for my doctoral research, and several people refused, not wanting to revisit that. I think that will be frequent in this case. You have to go to the police station and make a deposition or something like that. They will be reluctant to do that.
A huge campaign of publicity would be necessary, as would setting up different kinds of circumstances where people could make that kind of request, if that’s what the legislation requires.
Ms. Roy: I don’t think we need to go to the police station, though.
Mr. Higgins: But it means going to some official and saying, “I was convicted on a shameful charge years ago.”
The Deputy Chair: That should be part of the information package, right? You don’t have to go to the police station.
Mr. Higgins: It will still put people in a certain position. If you’ve been in that situation, a lot of people have a complete distrust of government.
The Deputy Chair: I can stand that.
Senator Pate: I have a slight supplementary. That’s part of what I was thinking about. Going back to whether you were in the military or in my situation — a service brat as a child — for many, the implications of being public are very different than the implications of being public now.
That’s part of what I’m thinking about with an automatic process. Would it be easier for some people, bearing in mind what you’re saying — that you don’t trust where the records are or if they will still exist? Presumably, this would preclude anybody using them for any purposes, but I take the point, so thank you very much.
Senator Hartling: I didn’t really have a question. But I wanted to thank you very much for your courage and for sharing your stories. I know it must be very difficult to revisit these stories and these things that happened to you.
I have learned a lot today and continue to learn as we go into this bill more. It’s important that society knows more about what happened. It’s such a hard subject to really share, so I appreciate that you came here today. Thank you very much.
The Deputy Chair: To follow up on Senator Hartling’s comments, on behalf of the committee, I wish to thank you very much for your stories for the committee and also for those who are watching on TV. It’s important to hear the horrendous things that have happened. Your testimony has been very helpful to us as we move forward in studying Bill C-66. I thank you very much for all the work you did before you came this morning to talk to us.
(The committee adjourned.)