THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Thursday, June 13, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, met this day at 10:30 a.m. to give consideration to this bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Good morning and welcome to the Standing Senate Committee on Legal and Constitutional Affairs. This morning’s meeting is our first on Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis.
It’s my pleasure to welcome Minister Ralph Goodale. We knew one another in another life, Mr. Goodale, and it’s always a pleasure to see you in your capacity as a Minister of the Crown.
The minister is accompanied this morning by Angela Arnet Connidis, Director General, Crime Prevention, Corrections and Criminal Justice Directorate, Public Safety Canada. On behalf of the Parole Board of Canada, we have Ian Broom, Acting Director General, Policy and Operations. Representing the Royal Canadian Mounted Police, we have Amanda Gonzalez, Manager, Civil Fingerprint Screening Services and Legislative Conformity. We discussed this issue in relation to Bill C-75 earlier on during this committee’s work, and you might be apprised of the amendments the Senate brought to that bill in relation to fingerprinting. From the Department of Justice Canada, we have Ari Slatkoff, Deputy Executive Director and General Counsel. Good morning and welcome to you all.
Mr. Minister, the floor is yours. You know the procedure. I know you are under time constraints, so I will ask you to immediately open our study of Bill C-93.
Hon. Ralph Goodale, P.C., M.P., Minister of Public Safety and Emergency Preparedness, Public Safety Canada: Thank you very much, Mr. Chairman — it is nice to see you again — and to all members of this committee. Thank you for your kind consideration of the timing constraints that are affecting me this morning. I’m missing one vote in the House of Commons right now, and there’s another one scheduled shortly after 11:30. I wouldn’t want to test the whip’s patience too much, so thank you for your help in that regard.
Thank you for inviting me to discuss Bill C-93. This legislative measure will establish an expedited and simplified pardon system for individuals with criminal records for simple possession of cannabis.
Without a criminal record, it will be much easier for those people to find employment and housing, to study, to travel, to adopt a child, to volunteer and to fully participate in Canadian society.
I am very pleased to be joined here today at the table by the officials you have introduced from Public Safety, the Parole Board, the RCMP and the Department of Justice. I understand that many of these same officials have already participated in technical briefings and information sessions for senators and staff in recent days. They have been very hard at work. On this file, as on so many others, Canadians have been very well served over the last four years by these people at the table with me and all of their public service colleagues. They have my sincere thanks for their efforts, and so do you, senators, for working so hard and efficiently to examine this bill and, by my count, at least 12 others within my portfolio over the course of the last number of months and for doing so in such a thorough and timely manner.
Turning to the matter at hand, Bill C-93 will expedite the pardons process in several important ways for people convicted of the simple possession of cannabis. Ordinarily, to apply for a pardon, you have to wait either 5 or 10 years, you have to pay an application fee of $631 and you need to convince the Parole Board that you meet certain subjective criteria: namely, that you have been of good conduct, that the pardon would give you a measurable benefit and that granting you a pardon would not bring the administration of justice into disrepute. For eligible people applying under Bill C-93, there will be no waiting period, no application fee and no subjective criteria. In addition, people will be eligible even if they owe outstanding fines or surcharges. Non-payment will not be a bar to an application. Taken together, these measures remove many of the expenses and obstacles that could prevent someone from getting a pardon and moving on with their life.
I am pleased to report that following extensive study and debate, the bill that is now before you in its current form was supported in the House of Commons by members of Parliament by a vote of 244 to 23. I hope this legislation will also earn the support of honourable senators.
There are several questions about this bill that were raised in the Senate at second reading, as they have been raised in other forums. I will try to address as many of them as I can in the time I have available this morning.
The first is the question of why we’re proposing an application-based process. Especially in light of proactive amnesties that have been implemented in certain municipalities in the United States, people have wondered why we can’t make criminal records for cannabis just go away electronically. The answer is that at this point, the record-keeping systems in Canada simply cannot physically accommodate that.
When we refer to a criminal record, we’re generally talking about the Canadian Police Information Centre database, or CPIC. That’s the national computerized system that is maintained by the RCMP. But information is entered into that system by individual police officers from many police forces across the country. Most of the time, for a drug possession offence, they will just insert “possession of a controlled substance,” and there’s no way of knowing for sure from CPIC, from that entry alone, what the substance was. To get the details, you have to check related police and court documents, and those documents are kept by police services and courthouses all across Canada, each with its own record-keeping system and most of them not under federal jurisdiction. Some of those systems are high-tech, but many of them are just papers in filing cabinets in the basements of courthouses.
To proactively identify people convicted only of cannabis possession, the Parole Board would have to go through all of those records manually. It would be a colossal, costly and slow endeavour, and people would end up waiting for years. On the other hand, when the Parole Board receives an application, it can zero in right away on all of the relevant documents, and it should be able to process those files in a matter of weeks.
A related question that has come up is why the Parole Board cannot accept electronic submissions, and that is a fair question. It’s 2019, and we should have 21st century systems to deal with criminal records. Part of the problem, as I’ve outlined, is that so much of the system is outside of federal control. The Parole Board needs certified copies from police and the courts, and if those documents simply aren’t available electronically, that is a significant obstacle. But that doesn’t mean that we should just throw up our hands in despair. Even before we began looking at this particular bill, the Parole Board was already looking at ways of modernizing its various systems, and the legislative process for Bill C-93 and the recommendations from the House of Commons Public Safety Committee on this point have created additional impetus for further progress.
In short, for now, Canadian criminal record systems, across all jurisdictions, are just not there yet technologically, but I fully agree that progress needs to be made, and the Parole Board is working toward that end.
Another question that has come up is why we have chosen to provide expedited pardons rather than expungement. Expungement is a concept that did not exist in Canadian law until we created it last year to destroy the conviction records of people who were criminalized simply for being gay. In those cases, the law itself was a patently unconstitutional violation of fundamental human rights. Those egregious old sections of the Criminal Code could not be enacted today because they would violate the Canadian Charter of Rights and Freedoms.
The prohibition of cannabis, on the other hand, was not unconstitutional. The law itself was not a violation of fundamental rights. It was just bad and increasingly outdated public policy. There is no doubt, though, that its application disproportionately impacted Black and Indigenous Canadians, among others. That’s why we are proposing to waive the fee and the waiting period and to take numerous other steps to make getting a pardon for simple cannabis possession much faster and easier.
As for the practical effects of pardons as opposed to expungement, criminal record checks come up empty in both cases. The effect of a pardon is fully protected by the Canadian Human Rights Act. Expungement, incidentally, is not mentioned in the Canadian Human Rights Act.
Pardons are almost always permanent. Since the 1970s, more than half a million pardons have been issued, and 95 per cent of them are still in force today. Pardons are rarely revoked, and only for serious reasons like reoffending.
Finally, there have been questions about the potential challenges involved in submitting an application. As I noted earlier, the process under Bill C-93 is far simpler and cheaper than usual. Still, it’s true that collecting the necessary documents and filling out the necessary forms involve some time, effort and expense, and the need to interact with government agencies can be intimidating in itself, so we are curtailing the required paperwork as much as possible. We won’t, for example, require actual court documents where police and criminal record checks provide sufficient information.
The Parole Board is taking a number of other steps beyond those in the bill to further expedite the application process. For example, it is simplifying its website and application form. It is creating a dedicated toll-free phone number and email address to help people with their applications, and it is developing a community outreach strategy, with particular focus on the communities most affected by the criminalization of cannabis to make sure that people know how this new expedited process will work and how to access it.
The very last point that I’ll make is that I am aware that this bill deals with only one small part of the pardons process that is in need of broader reform. Both Public Safety Canada and the Parole Board held consultations on this point in recent years. A few months ago, the House of Commons Public Safety Committee studied this issue and made a number of unanimous recommendations. I know that Senator Pate has introduced legislation that would adopt the approach of having criminal records expire after a certain period of time. I hope to have the opportunity to work with all honourable senators to improve the overall pardons system in the next Parliament.
For today, though, we have before us Bill C-93. It’s a chance to make a real difference in people’s lives as early as this summer: people struggling to pay outstanding fines; people saving up $631 for an application fee; and people waiting for the expiry of a 5-year or 10-year waiting period, who would become eligible right away without having to pay the fines and the fee. That is a really big deal for ordinary people across this country. For their sake, I hope we can get this done.
Thank you for your attention. I’m very happy to try to answer your questions.
The Chair: Thank you, Mr. Minister.
Senator Boisvenu: Minister, I welcome you and your collaborators. Today, on June 13, we are a few days away from the end of the Parliamentary session. We will undoubtedly have no time to study other bills before the next election. Why wait until the last minute to introduce this bill, when Bill C-45 was passed in late spring 2018? Why not introduce this bill at the same time as the bill on marijuana legalization? It was already the government’s intention to introduce a bill on record suspensions for people who were found guilty of simple possession of marijuana. Why wait until the last minute?
Mr. Goodale: In terms of the legislative time, senator, actually, the way the parliamentary calendar worked between last fall, through the winter and this spring, the bulk of parliamentary time is back-end loaded. If you recall, through the winter months and the early part of the spring, there were a number of weeks on end when Parliament was actually not sitting. All of the days that need to be accomplished in the parliamentary calendar are the same, but they’ve been pushed toward the end of the session, and that is the time period in which we are now in, rather than earlier, back in January or February or even December. So we actually have presented the legislation in that part of the parliamentary calendar where Parliament itself has the largest number of sitting days.
The other point that I would mention — and I was making this comment to a number of senators as we came through the door for this meeting — is that the public policy agenda and the legislative agenda for Public Safety has been a busy one through the last four years for this particular Department of Public Safety. We have advanced 13 major pieces of legislation. We have occupied a big chunk of the available sitting time in both houses, so I’m grateful for both members of Parliament in the other house and members of the Senate in this house for working hard in the time that’s available to try to accommodate that large volume of legislative work.
Senator Boisvenu: Minister, I have been sitting on this committee for almost 10 years, and we have received as many bills between January 2019 and today as during the first three years of your term. I dislike the fact that, once those bills were before us, we were advised not to propose any amendments, as the government would not have time to adopt them. Our work as senators is being reduced in terms of quality because things have been happening at lightning speed since last spring, and we are forced to study these bills too fast. We were told not to propose amendments because they would be rejected anyway. I find this way of working completely deplorable, and I wanted to say so.
Is this bill that will grant a no-cost pardon a right you recognize for people who were convicted of marijuana possession, or is it a privilege?
Mr. Goodale: Obviously, what we’re conferring in Bill C-93 is an expedited and no-fee process for dealing with convictions of the simple possession of cannabis. Because of the way —
Senator Boisvenu: Minister, we understand that this is a privilege that people are being given. Why would non-consumers have to pay to grant a pardon to consumers? In our society, we have a consumer pays principle. Those who consume a product must pay for it. Why would honest citizens who have never been convicted of an illegal act — because it must be understood that it was illegal then — have to pay for a pardon to be granted to people who did do something illegal? I am trying to understand your logic. We are not dealing with a recognized right, but with a bill that grants a privilege to obtain a pardon. There is no obligation on the government to grant it. The bill will lead to people who were never penalized or involved in a criminal act having to pay. I am trying to understand the logic in all this.
Mr. Goodale: The objective, senator, is to make it possible for people who have committed this particular offence — and it is the offence of simple possession — to be assisted in rehabilitation and to be able to live full and productive lives in our society. That means getting a better job, getting appropriate housing, being able to get their education, to travel appropriately, to be able to volunteer for groups and organizations in their communities — all of those things that make for good, productive citizenship. Our objective here is to make that readily available now that the law has been changed with respect to cannabis and the legal regime has been replaced as of last fall.
It’s a question of fairness. It’s a question of faster reintegration into the mainstream of society. It’s an objective of trying to be sure — especially with respect to marginalized groups upon whom there was a disproportionate impact of the old cannabis law — that they are treated fairly and appropriately. Are there costs associated with that? Yes. But it’s a cost that will achieve larger social good.
Senator Dupuis: Minister, thank you for joining us. I have a question about the actual system. You explained pretty clearly the technical issues that led you to ask individuals convicted of simple possession of cannabis to apply for a pardon with the Parole Board of Canada.
If I understand correctly, as records are currently being kept at various levels — provincial, territorial and federal — this would not be easy to do. So commitment is needed. The bill will also provide the Parole Board of Canada with the authority, in the case of simple possession of cannabis, to create a new system and to engage in transforming the system.
If I understand correctly, you have taken into account that certain segments of the population are more vulnerable and that it could be more difficult for them to apply for a pardon. Have you had discussions with provinces or with organizations to make the application process easier for vulnerable people?
Mr. Goodale: As you point out, portions of the system are very much within the provincial administration of justice. Officials in my department are in constant communication with their provincial and territorial counterparts, as is the Department of Justice Canada, and we have tried to ensure as much collaborative effort with respect to this whole process as is physically possible.
I can point out an area where there’s been a bit of disagreement that we have tried to accommodate, and that is on the issue of payment of fines. Some of the administration of that is federal; some of the administration of that is provincial. Because there were differences of view at different levels about whether fines should be forgiven or not, we have not dealt with the issue of forgiving the fine or the surcharge but rather have made it clear that non-payment does not stand as a barrier to making an application, so the fines will remain outstanding, but they would not be collected federally through a criminal process. There are civil ways of recovering the fines. If those provinces that have that jurisdiction choose to want to continue to collect those particular fines or surcharges, they will be able to do so within their provincial and territorial jurisdiction, but the fact that a fine is outstanding would not prevent a person from making an application for a pardon.
Senator Dupuis: Minister, you said that obtaining a pardon for people with criminal records for simple possession is a matter of justice. If I may, before I ask my question, I want to give you a quick example of a very specific case that the Quebec Human Rights Commission dealt with. An individual was hired by a prison subcontractor to do some construction work. That individual had a criminal record whose only element was a simple marijuana possession charge from a few years ago.
He was fired when the Department of Public Works realized that he had a criminal record and the work in question was the building of a prison. The Department of Public Works made a dubious link — prison; simple possession; dangerous — when the prison had not yet been built. He was contracted to build the prison. There are concrete examples of people who will rightly benefit from this legislation.
You said you had discussions with the United States. You were asked at some point whether there would be issues if pardons granted in Canada were not recognized in the United States. There is concern that people would not be able to travel between the two countries. You said that the Americans have agreed to work with Canada on this issue. Can you tell us more about that?
Mr. Goodale: Yes. I had the opportunity earlier this week to have my first formal meeting with the new Acting Secretary of Homeland Security in the United States, Mr. Kevin McAleenan. As you can imagine, it was a busy agenda, but we did speak very briefly about the new cannabis regime in Canada. We both observed that, in the experience since last fall until now, the process at the border has worked remarkably well. People were apprehensive about whether there would be backlogs, further inspections, intrusive questioning and so forth, and it would appear that has not materialized, which is good news for both countries. The normal security apparatus is working, and it’s working efficiently to the advantage of both Canada and the United States, so that’s one bit of good news that flows from the encounter with the new secretary.
The other was for me to inform him that we were in fact advancing this legislation, that it had not yet completed its course through Parliament but it was on its way, and that we would hope, once that legislation is enacted and we have a process for expedited pardons in place for simple possession, that we could work with the United States authorities to make sure that their records at the border were as up-to-date and as accurate as possible, so that if a person had obtained a pardon for simple possession in Canada, that information would be fully available to American border officers that would be making decisions about whether or not a person could enter the United States. Obviously, that is entirely their decision to make. They have complete jurisdiction over their own borders, but it would be important for them to have the most recent, accurate information.
It is possible, because of past encounters at the border, that the United States might have in their computer systems old information that did not reflect the fact that a pardon had been granted. I asked the secretary if he and his officials could work with ours to make sure that information would flow to the border in an expeditious way and the information would be available to U.S. border officers so that they would have full knowledge, if these are the facts, that for a particular person in front of them whose record might have shown a conviction for simple possession, that that record had now been updated and the conviction had been pardoned. He indicated a willingness to work with Canada to make sure always that their information about Canadians was as accurate and up-to-date as possible at the border.
Senator McIntyre: Welcome, minister, and other invited guests.
I have two questions. First of all, what discussions, if any, were held with stakeholders prior to the introduction of Bill C-93? If discussions were held, were any particular concerns raised about this bill? If so, what are the concerns and how were they addressed? For example, have you met with law enforcement?
Mr. Goodale: Senator, I meet with law enforcement every single day, and we discuss a range of issues, including the new laws with respect to cannabis.
Angela, from Public Safety Canada, has a greater overview of the full consultation by officials, and I’ll ask her to comment.
Angela Arnet Connidis, Director General, Crime Prevention, Corrections and Criminal Justice Directorate, Public Safety Canada: Thank you very much for your question.
We have met with many stakeholders — not particularly the police, although I’ll get to that. Earlier on, the minister had mentioned we had some online consultations. They were for the general pardons process. At that time, many indicated that they thought there should be pardons for cannabis-related offences. This was prior to the legalization of cannabis. Since then, we’ve had discussions. I meet twice a year with a collection of national organizations active in the criminal justice area. They are generally voluntary organizations, such as the John Howard Society. I would say they’re supportive of an expedited process. Generally, they would prefer expungement, and we’ve explained to them, as we’ve explained to several senators, why we’ve made this choice.
In terms of the police force, at the assistant deputy minister level, we have regular meetings with our provincial and territorial colleagues who work on crime prevention and policing. They’ve been briefed on this issue. We also had briefings at the deputy minister level just a few weeks ago where they were briefed on cannabis. We had members of the RCMP at that briefing. No concerns have been raised.
Senator McIntyre: My next question has to do with clause 6 of the bill and the role of the Parole Board. I notice Mr. Broom is here today, and perhaps he can answer some of my concerns. As we know, currently the Parole Board has the power to make inquiries to determine the applicant’s conduct since the date of conviction. It also has the power to make inquiries with respect to any factors that it may consider in determining whether ordering the record suspension would bring the administration of justice into disrepute. From what I understand, clause 6 of the bill bars the inquiries. I don’t think there have been any amendments coming from the house that have rectified this situation, or have there?
Ian Broom, Acting Director General, Policy and Operations, Parole Board of Canada: Thank you for the question. It’s a very good question.
With respect to clause 6 of the bill, these are inquiries that are being made specifically in relation to other new sections introduced in this bill, so they would be specific to simple possession of cannabis. They also, in particular, would not take into account non-payment of fines or victim surcharges that are imposed for the simple possession of cannabis only.
Senator McIntyre: We know the Canadian Police Association has suggested amendments to this bill, calling for the Parole Board to retain a certain flexibility and discretion to conduct inquiries. For example, the inquiry could include looking at court records to determine if an individual was charged with something more serious, like trafficking or possession for the purpose of trafficking, and pled down to simple possession. This is a serious concern by the Canadian Police Association, and I would like to know your thoughts on this.
Ms. Arnet Connidis: Thank you.
This is an issue we’ve given some thought to. In the end, we cannot go in and really rethink a court decision or a trial process. There may be many reasons why the charge started out as a higher charge and the conviction was for simple possession of cannabis. There may have been an innocence issue. There may have been a lack of evidence. To start going back to look and second-guess a court process for a conviction would really be beyond the power and proper role of a Parole Board member or a Parole Board staff person.
Senator McIntyre: I’d like to hear from the RCMP on this issue. What are your thoughts?
Amanda Gonzalez, Manager, Civil Fingerprint Screening Services and Legislative Conformity, Royal Canadian Mounted Police: The RCMP maintains the national repository on behalf of all police agencies across Canada. As you know, all entries in the national repository are supported by fingerprints, which are taken in accordance with the Identification of Criminals Act and for which it would be an indictable offence or a hybrid offence. So it is unlikely, to be eligible for this expedited process, that we would have the entry in our repository.
Senator McIntyre: But with the passing of Bill C-75, the Crown will have the choice to proceed either by indictment or summary conviction. My understanding is that, for most cases, they wouldn’t be able to enter the information in data or take fingerprints, so that causes a problem.
Ms. Gonzalez: I can’t comment on that.
Senator Pratte: Welcome, minister and your staff.
I’m wondering if you could elaborate a little bit on the choice that was made by the other place that ensures that fines and victim surcharges will not be taken into account when a record suspension request is made. Simple possession of cannabis was an offence until Bill C-45 was adopted. Some people may have been convicted for this offence 10 or 15 years ago, and for some reason, they decided they would not pay the fine or the victim surcharge that was imposed by the court. These people did not respect the law by not paying their fines, so I’m just wondering if you could elaborate on why this choice was made. I understand that everything is to make it easier to get a record suspension, but still, these people still owe money to the state, and that was their sentence for committing a criminal offence.
Mr. Goodale: If there is a fine or a surcharge still outstanding, senator, it will still be collectible. It simply would not stand as a bar to making an application for a pardon.
Our analysis, or the analysis by the House of Commons committee, was that the vast majority of people who are in that situation would tend to be people in marginalized circumstances, where the payment of the fine for simple possession or the surcharge would, in fact, stand as a barrier, unfairly and unreasonably, for them getting on with the rest of their lives.
It is clearly important to draw a distinction between simple possession and other offences, and the expedited or the no-fee approach does not apply to those other more serious offences; it’s only in the case of simple possession that the expedited process is being implemented. Again, the reason is that the regime has changed since last fall, and it seemed to us and to the House of Commons committee a matter of basic fairness to not have those old records and old fees and charges stand as a barrier to people being able to become more fully integrated into society.
Senator Pratte: Thank you.
I have another question, which is more a request for information or a better understanding. Am I correct that one of the differences between expungement and record suspension is that, with record suspension or pardon, the record still exists but it’s just sort of put aside, right?
Mr. Goodale: It’s sequestered very securely, yes.
Senator Pratte: That’s right. I understand that. But if there is a further offence down the road for a particular person, whatever is in that secured record can come back in a way to “haunt” the person, if I may say so. With expungement, the record is really destroyed; nothing is —
Mr. Goodale: It is destroyed, yes.
Senator Pratte: So it is a difference between the two?
Mr. Goodale: That’s correct.
Senator Pratte: I’m just trying to understand. If someone is charged with a later criminal offence after having received a record suspension, what happens to this record for simple possession? How would that affect their treatment in front of tribunals or Crown decisions for this particular person?
Mr. Goodale: Mr. Broom from the Parole Board would be able to respond to that, senator.
Mr. Broom: Under this expedited process outlined in Bill C-93, if an individual has been ordered a record suspension for simple possession of cannabis, a revocation would not ensue based on good behaviour. Good behaviour would be exactly that. It could be a new charge. However, if there was a new conviction, then that could lead to the revocation of that record. Under this scheme, it does provide further restrictions on when that record, if it were specific to simple possession of cannabis, could be revoked.
Senator Pratte: Thank you.
Senator Pate: Thank you, minister and all of you for being here and for the work you do all of the time.
Minister, you mentioned that this bill was being brought in, and I appreciate many people are very excited about the prospect of being able to have their records removed, but in the end it will result in four different processes for record suspension or pardons. My understanding is that the Parole Board has indicated a preference for the type of model that you kindly referred to in Bill S-258, and I appreciate the concerns you’ve raised about the difficulties of being able to manage those processes.
What would it take, in your opinion, to get to that stage? In a very short turnaround in the last session, changes were made to record suspensions that seemed to have, if not equal, certainly similar challenges. What would it take for us to get to a place where we could have one process, similar perhaps to Bill S-258 or some variation, that would have no fees and that would actually allow for expungement?
Following up on Senator Pratte’s request, one of the issues that has been raised by your own officials is that even with an expungement process, in today’s digital age, there is never a total erasure of a record. There are ways to search for those.
What are the hindrances or what would it take to get to that stage now? My understanding that there is widespread support for it within the department.
Mr. Goodale: Two things, I think. One is that we would need to have carefully thought through all of the information technology and record-keeping issues that pertain to criminal records. As I mentioned earlier, the technology simply is not there now where we could push a button and instantly have an effect right across the system, because there is not one totally universal system. The systems that do exist are, at least in part, incompatible with each other. There would need to be a very effective national, comprehensive, record-keeping system with sophisticated information technology.
The second thing, senator, and we’re really going through that process now and it will be ongoing, is that all of us at various levels, certainly the legislative branches of government, law enforcement, the Parole Board, the policy side of Public Safety and Justice, just need to think through all of the implications of the kind of system that you have proposed so that we don’t have any unintended consequences. Some of the questions here have focused on if we want to zero in on simple possession, how do you avoid inadvertently conferring a pardon benefit on someone that didn’t fall within that definition and therefore you were conferring an unintended benefit where the benefit was not warranted? We would need to think through all of those ramifications, to be clear, and the various categories of record suspensions that would be appropriate to the offences under consideration.
You would, I would think, have different rules and approaches for the simpler, lower-grade offences, compared to those in the middle and those that are in the most serious category, and how you draw the distinction between those various offences. The present law does so on the basis of whether it’s a summary conviction or indictable. That may or may not accurately reflect the gravity of an offence. Others would make the argument that you reflect the gravity more by looking at the sentence that was imposed by the court that actually made a judgment, and you could have a relatively minor offence by summary conviction that some would consider to be more serious than some of the low-grade indictable offences.
It’s where you draw the line between offences and make those judgment calls as to what waiting period is appropriate, what fee is appropriate, what other consequences are appropriate for one kind of offence against another. As people know, in making these judgment calls, it’s difficult to categorize the offences without taking into account the real-life circumstances that existed when the offence was committed. We have to think all of that through very carefully to make sure that we’ve got a system that does, in fact, reflect fairness and justice and is keeping Canadians safe.
Senator Gold: Welcome, minister. My question is actually for Mr. Broom, so given your time, I’ll pass until then.
The Chair: We have the minister for not more than eight more minutes. Thank you, senator, for your cooperation. You are on my preferred list for once the minister has left.
Senator Batters: Minister Goodale, my colleague Senator McIntyre mentioned my first point earlier today. As those of us who have practiced law for a considerable period of time know, in a large percentage of cases, many accused are originally charged with much more than a simple marijuana possession charge, but then a marijuana possession conviction is often the result of a plea bargain down from other, more serious charges. I think that always needs to be kept in mind when we’re considering Bill C-93.
I’ll focus my questions on what the limits are on those who are eligible for your pot pardons under this particular bill. If you could, please explain to us what those limits are. The slide deck materials that we received in the meeting are not that clear. Will someone be eligible for a pot pardon under Bill C-93 if they have any other criminal convictions at all? Or does any other criminal conviction, whatever it may be, including impaired driving or what have you, exclude them from receiving one of these record suspensions?
Mr. Goodale: The short answer to that is yes.
Senator Batters: Any other type of criminal conviction whatsoever, thank you.
Also, the marijuana regime in Canada changed with your Bill C-45 for possession of marijuana in a certain amount, in most cases for an amount of less than 30 grams. I’m wondering if that is also a limit under your particular bill. Are Bill C-93 pot pardons available to those convicted of marijuana possession in larger quantities than that 30-gram limit ; and if so, why is that? Are those types of quantity amount records kept by the RCMP?
Mr. Goodale: Again, the short answer to the question is no. There is no volume or weight limit with respect to the pardons process. It’s simple possession of any amount.
Senator Batters: So even though your bill limited the new possession charge to more than 30 grams, then —
Mr. Goodale: The limit was public possession at 30 grams.
Senator Batters: Public possession, yes.
Mr. Goodale: Yes.
Senator Batters: But people could have a record from quite some time ago that might have been for a much larger amount, and they would still be eligible under this bill, correct?
Mr. Goodale: Angela wants to comment on this.
Ms. Arnet Connidis: Often, and I can defer to the RCMP, if someone was found in public with a large amount of marijuana, it might be more like a trafficking offence they got charged with rather than just possession.
Senator Batters: Certainly. However, if it was not trafficking, or maybe it was originally a trafficking offence that they were charged with but then they had a plea bargain down to a marijuana possession charge, as can happen in many cases, that would still be included under your regime, right?
Ms. Arnet Connidis: That would be a case where the conviction was for simple possession regardless of what the original charge had been.
Senator Batters: Regardless of the amount, okay. Are those types of records kept by the RCMP about quantities or not?
Ms. Gonzalez: Usually, that type of information would be in the local police records or the court documents. We don’t always have it. Sometimes we do, but it’s often not on our records.
Senator Batters: What is the trafficking limit threshold?
Ms. Gonzalez: I can’t speak to that.
Senator Batters: Does anyone know?
Mr. Goodale: That is a judgment call for the police to make in the appropriate circumstances. Looking at all of the facts and factors that they have before them, does the evidence lead to simple personal possession? If so, that’s the charge they would lay. If there are other factors that point to this being a commercial operation, then they would lay charges in respect of trafficking. But that’s a judgment that the police make based upon all of the facts and factors before them and the evidence that they have collected.
Senator Batters: Thank you.
Senator Boniface: I can also wait until we have just the officials.
The Chair: Thank you. You are second on my preferred list.
Senator Dean: Thank you, minister, for being here.
There appears to be little debate about the problem the government is trying to resolve here. I haven’t heard that contested. There is a discussion, as we’ve heard today, about the expedited application-based process versus expungements or automation. My sense is that difference, from everything I’ve heard from officials and you today, is actually one of timing rather than one of policy substance. If I’ve got this right, it seems to me that there is a long-term vision for a more automated and, in some way, automatic or semiautomatic system. That’s going to take a long time, perhaps several years, and that’s several years that the target population of this bill doesn’t have or may not have. Is that a fair characterization? If it is, I’m sensing that there may not be significant policy differences here. There may be differences about expectations or desire with respect to timing.
Mr. Goodale: Generally, Senator Dean, you’ve described it well. It’s partly a matter of timing, and it’s a big question of technology and the availability of workable systems that actually collect the information, store it in the most usable way and make it available where appropriate.
As I responded earlier to Senator Pate, I think there’s also still a policy discussion to be had about the precise objectives to be achieved so that we are making the most appropriate decisions. But while we have that larger discussion about pardons in the big picture, as I mentioned earlier, there are individuals whom we can address now in a safe, sensible and fair-minded way that will serve very large public policy objectives. And I hope we’re able to do that in the time available to this Parliament.
Senator Dean: Thank you. So do I.
The Chair: If you can, Senator Dalphond, be generous with Senator Carignan, so that he can ask his question before the minister leaves.
Senator Dalphond: I had a number of questions to ask, like some of my colleagues, but I will group them into a single one on marginalized groups.
I understand that the bill estimates that 70,000 to 80,000 people will be able to use the new system. What proportion of that number do marginalized groups account for? I understand that the government is waving the fees associated with pardon applications because, essentially, the targeted group is made up of marginalized individuals. For the same reason, the government is not requesting that fines be repaid because marginalized groups are targeted by Bill C-93.
Marginalized groups seem to be among the political reasons for maintaining this system. So what measures have been implemented to help those marginalized individuals use a system that has been designed for them?
Mr. Goodale: In the statistics, the two groups that appear to have been principally affected by the charges of simple possession would be Indigenous people and Black people. We can dig out statistics to indicate the number of charges and how the impact appears to be disproportionate. In terms of what we’ve done to address that, eliminating the fee is part of that, as well as eliminating the waiting period and removing the payment of a fine as a barrier to an application. That is taken away as well.
In addition to that, the Parole Board is looking at the ways in which they can simplify their process so it’s not, perhaps, quite as intimidating as it otherwise might be. They’re trying to reach out to those particular population groups to make sure that the new law is well-known and well understood. There will be ways to contact the Parole Board through emails and other forms of social media communication so that people will fully understand what the law does, what it doesn’t do, how it would apply to their circumstances and how they could take best advantage of the new procedures.
Senator Carignan: My question is fairly simple. I understand the expedited procedure in terms of record suspension. However, what people want to know — those who are listening to us and those we will meet with during the summer — is this: “I am a truck driver or I want to be a security officer. What should I say when I am asked in my pre-employment form whether I have been convicted of a drug-related offence?”
If they obtain an expedited record suspension, as prescribed in the bill, what should the job applicant answer? Will they answer yes or no?
Mr. Goodale: The rules are those that are protected by the Canadian Human Rights Act.
Senator Carignan: I did it on purpose, as I knew how you would answer. If we are talking about a truck driver or a security officer in a province, what would be your answer?
Mr. Goodale: I’ll just check on jurisdiction, but the Canadian Human Rights Act applies, right?
Ari Slatkoff, Deputy Executive Director and General Counsel, Department of Justice Canada: The Canadian Human Rights Act applies in areas of federal jurisdiction, obviously, but many provinces and territories do have similar legislation that prohibits discrimination on the basis of criminal convictions for which a pardon has been granted.
Senator Carignan: However, we agree in saying that it has to be related to the hiring. So, I am doing it on purpose, and once again asking the question: for a bus or truck driver, or a security officer — regardless of whether the issue is legal or not — should they answer yes or no?
Mr. Goodale: Senator, if you believe that there needs to be some further protection provided here beyond what is in the Canadian Human Rights Act or in provincial human rights acts, then that type of an amendment may be well worth presenting. If there are gaps in the questioning mode that could leave some people unavailable to take advantage of the new rules, something that’s not covered by the Canadian Human Rights Act or by a provincial corresponding piece of legislation, then that may be a very worthy amendment to propose.
The Chair: Thank you, minister. I know you have to assume some other responsibilities in the other place at this stage. Of course, I will ask Mr. Broom and the other guests this morning to stay at the table. Senator Gold and Senator Boniface would like to ask questions.
Mr. Goodale: Mr. Chair, thank you very much, and thank you to all Senate colleagues for being helpful with the timing this morning. Thank you.
The Chair: Thank you, minister.
Senator Gold: Welcome again. I had the privilege of being a part-time member of the Parole Board some years ago, so it’s nice to connect the dots with a previous life.
Could you describe for us some of the work under way within the Parole Board system and the timeline for the evolution of this system that was described in the minister’s remarks?
Mr. Broom: Certainly. I would say that we are in the early stages, but I think there are a couple of elements to what the Parole Board is considering and how we’ve been approaching our data and our systems.
On one side, I think that we’ve necessarily made a number of different enhancements to our existing system based on changes in legislation, based on new business lines, such as expungement, and then the current scheme under Bill C-93, which is being considered.
In moving forward, I think what we would be envisioning is having a more online presence and to facilitate accepting applications, so right now we’re working with central agencies and trying to figure out the best possible way in terms of the front-facing and how Canadians can interact with the board when they are applying for record suspensions or expungements. Another aspect is — and this is pointed to in the bill here — that we want to ensure we have adequate systems for tracking and reporting on the various aspects of our program.
So, in summary, we’re in the early stages. I think that the observations that have come forward through the process of Bill C-93 moving through Parliament has underscored further for us the need for this and the need for us to have a very good sense about what our data needs are and how we can have a better online presence and the resources required.
Senator Gold: I have a follow-up on a separate matter.
According to media reports, the uptake so far for expungement orders seems to be relatively modest, at least compared to the possible family of possible candidates. Can you help us understand why there have been so few applications? Do you have any predictions for whether we’ll have a higher track record with regard to cannabis possession suspensions?
Mr. Broom: I would hesitate to conjecture on the lower level takeup on the expungement side of things.
In terms of the record suspensions for simple possession of cannabis, there have been a number of different estimated volumes that have been discussed. In the thousands certainly. I think that it’s very difficult to pinpoint exactly what we’d expect, but I would imagine that it would be a greater uptake than that for the expungement to date. Certainly, we’ll be ready to address the volume as we start to get a handle on how many applications are received.
Senator Boniface: Thank you all for being here.
My question is a bit of a follow-up on Senator McIntyre’s and Senator Batters’ questions because I am concerned about the number of trafficking charges that would have been converted to simple possession for the purpose of getting through a court that is already backlogged, and “better a conviction than no conviction” is often how the decision is made. I realize there may not be an easy solution, other than the solution that you have come up with, but did you do any analysis in terms of what percentage of people who can put the application forward would actually fall in that category? Or do you have the capacity to do that?
Ms. Arnet Connidis: Thank you for the question.
No, that would have required going into a lot of individual backgrounds, way beyond the resources that we would have for that.
I would just want us to remember that this expedited pardon is for people who have only possession of cannabis charges on their records. That would just be that one kind of pardon. If there is someone involved in more serious charges, there may be more than just one charge, one conviction on their record, and they wouldn’t get the expedited process.
For those who have more than one conviction on their record, they would still be paying the regular fee. They would have to wait out the wait times associated with the other convictions on their record. So they wouldn’t benefit from the expedited process in that way.
Senator Boniface: If they had more than one conviction for possession, is that a single application or a multiple application?
Ms. Arnet Connidis: A single application, and the convictions all have to be for simple possession of cannabis.
The Chair: But it could be multiple convictions?
Ms. Arnet Connidis: Yes.
Senator Boniface: At different points of time.
Ms. Arnet Connidis: Say they had a 5- or a 10-year wait period for their first conviction, and five years later they got another conviction, they would still have two convictions on their record.
Senator Boniface: Would they have two applications or one?
Ms. Arnet Connidis: One application.
Senator Boniface: So I can wipe out that offence in a single application?
Ms. Arnet Connidis: The offence is still just simple possession of cannabis, though they may have had two.
Senator Boniface: In terms of your follow-up once this legislation becomes law, if it indeed it becomes law, is there any plan for any ongoing analysis on this particular issue? Of all of the issues, this concerns me the most in terms of the number of charges that would have been converted to simple possession for the sake of a conviction rather than no conviction. Is there any research or any analysis going to be conducted in terms of impact?
Ms. Arnet Connidis: We have no plans to look behind the conviction to check out court records. That would require us to check all the court records to see, and maybe even the charges that were laid.
Senator Boisvenu: My question follows up on Senator Batters’ questions. Could an individual who was charged with simple possession 15 years ago, but who would not be complying with the current legislation in terms of simple possession, obtain a pardon? The current legislation, Bill C-45, stipulates that an individual cannot possess more than a specific quantity of marijuana, right? Let’s say that quantity is 200 grams, and let’s say that the individual was convicted 10 years ago for possessing 500 grams. So, since they are in contravention of the law as it is today, would they be granted a pardon?
Allison Davis, Manager, Criminal Justice Policy Unit, Public Safety Canada: If the conviction occurred 10 years ago, as I understand your question, if they were convicted of an amount that would exceed the limits currently put in place by Bill C-45, would they be eligible? The answer to that question would be yes. Bill C-93 does not place a limit on the amount of cannabis an individual could possess, as long as the conviction is for simple possession.
Senator Boisvenu: So I understand that a pardon will be granted to people who were criminals yesterday and would still be criminals today. Is that right?
Ms. Arnet Connidis: If, after the passage of Bill C-45 and the legalization of marijuana, someone has another conviction, it would not fall under these pardons because they would be committing an illegal act. So these are for simple possession of cannabis that has now been legalized. Does that answer your question?
Senator Boisvenu: The issue is that this fast track process will not distinguish between people who would be complying with the legislation today and those who would not be. At the end of the day, we will grant a pardon to people who, normally, under the current legislation, should still be considered criminals. This piece of legislation will not distinguish between those who were convicted of possession of very small quantities — and I understand that those records should be expunged — and those who were convicted of simple possession of large quantities of cannabis that are still illegal today. Those people will be granted a pardon.
Ms. Davis: Prior to the legalization of cannabis in October of last year, there was no regulatory framework in place. As a result, there was no amount, whether it was 20 grams or 40 grams, that an individual could legitimately possess for recreational purposes. Whether you possessed 20 grams, 40 grams or 100 grams, you would still be charged and convicted of simple possession of cannabis. Since the coming into force of the Cannabis Act, there is now a legislative framework, and Canada has landed on 30 grams in public and any amount in a private dwelling.
Senator Boisvenu: I understand that indictment records are checked because, normally, police officers would indicate the quantity in question. I understand that you find this research too tedious. You have answered my question.
I have another question. The U.S. government has all the information related to the Canadian Police Information Centre, CPIC. Are you certain that the Americans will not block the entry of Canadians who will obtain a pardon today and try to cross the U.S. border?
During our study of Bills C-45 and C-46, we tried to obtain information from the Canadian government on how U.S. border officers would behave toward Canadians working in the marijuana industry and those who declare having consumed marijuana. We have never received clear information from our government. Since the Americans have that information right now, and 100,000, 50,000 or 20,000 Canadians have been convicted of simple possession, will the Americans detain those people illegally to prevent them from travelling to the United States? One of the motives for the legalization was to enable people to travel. If those people cannot go to the United States, that motive collapses.
Ms. Arnet Connidis: Thank you for the question.
The minister shared with you the conversations he’s been having with his counterpart to work through this. Every country has their own sovereign right about who crosses their border, so when we were looking at the policies to implement and record suspension, expungement, et cetera, international border crossing was an issue that we took into consideration.
It is possible that for someone who had previously come to the attention of the American government when they crossed the border, to the extent that they looked at their record, they looked at the CPIC file and determined the person has a conviction for possession of cannabis, the U.S. border officials could keep that information on record. The next time this person comes by, after having had a pardon, that record would still be there, and the person could be asked by the border official to produce evidence that they’ve had that pardon, in which case they could go back, get the waiver and produce that evidence.
We will continue our discussions, both at the minister’s level and at our level, with the Americans about what we can do to get you up-to-date CPIC information on people you have on record.
Senator Boisvenu: You will understand that, since possession will remain illegal at the federal level in the United States, it would be unrealistic to tell people who are applying for a pardon that they could travel. Marijuana will always be illegal in the United States. Even if those people’s records are suspended in Canada, the Americans will always consider it an illegal act.
Amanda Gonzalez, Manager, Civil Fingerprint Screening Services and Legislative Conformity, Royal Canadian Mounted Police: I would like to clarify something. If simple possession is not accompanied by another conviction, normally, it does not appear in the national repository, and the Americans will not have access to that information through CPIC.
Senator Boisvenu: What I wanted to say, Ms. Gonzalez, is that the Americans already have that information.
Ms. Gonzalez: Not if the information is not in CPIC.
Senator Boisvenu: What I mean is that all those who were convicted before Bill C-45 was passed are already in the CPIC system. So the Americans in large part have access to that information.
Ms. Gonzalez: The information will only be available in CPIC if that conviction was accompanied by another conviction. Normally, simple possession would have been strictly related to a summary conviction. So there would be no fingerprints.
Senator Boisvenu: At the time?
Ms. Gonzalez: Yes.
Senator Boisvenu: Okay. Thank you.
The Chair: Senator, you will remember that you thoroughly discussed the issue of people who have been fingerprinted. I am looking at the clock. A number of senators want to ask questions, and we have another panel of witnesses. Can we continue? Very good.
Very quickly on that very point, Senator Batters?
Senator Batters: I have a quick supplementary on that. Further to what my colleague Senator Boisvenu was saying, just like what Senator Carignan was saying about some employment, usually the question is not whether you have a conviction, but the question at the border in particular is whether you have ever been charged. Again, that’s something that needs to be considered in this whole aspect. Thank you.
Senator Dupuis: I have two questions. The first is for the Department of Justice, but not exclusively. Subclause 6.1(2) of the bill, which focuses on records keeping, states the following:
(2) A record of a conviction in respect of which a record suspension has been ordered that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be kept separate and apart from other criminal records. Subject to subsection (2.1), no record of a conviction is to be disclosed to any person, nor is the existence of the record or the fact of the conviction to be disclosed to any person, without the prior approval of the Minister.
I understand that, subject to subsection (2.1), it is quite clear that prior approval of the minister is not required in circumstances related to national defence or to a default of payment of a fine.
In subclause 6.1(2), what are the conditions, the criteria and the circumstances under which the minister can approve the disclosure of the record?
Ari Slatkoff, Deputy Executive Director and General Counsel, Department of Justice Canada: Thank you for the question. This provision is there for anyone who has benefited from a record suspension. It is always possible for the minister to approve the disclosure of the record for reasons set out in the regulations. In fact, the criterion that should be satisfied is that the suspension be granted for the purposes of proper administration of justice, but specific criteria are set out in section 4 of the regulations, where a number of criteria are provided.
One of the criteria is that consideration must be given to how the criminal record is supposed to be used. Very often, it is supposed to be used in a new criminal trial, as evidence of previous convictions, or for the purposes of sentencing, for example. Perhaps Angela knows more about this.
Ms. Arnet Connidis: I would agree with everything that Mr. Slatkoff has said. Requests for disclosure that come before the minister are often sometimes in the case of employment with a police force. If there’s a pardon record that might be relevant, we would look at whether this is really relevant to the job, how long ago this happened and how old the person was when this happened. So, in the case, say, of simple possession of cannabis, we have this record, this person was 18 years old when it happened and this person is now 35 years old, and the minister would assess whether this is relevant enough to disclose it. Situations like that happen.
Senator Dupuis: In other words, this is not a matter of open discretion left to the minister, but is rather defined by regulation criteria?
The Chair: Is there any appeal of the decision of the minister possible, or is it totally discretionary?
Ms. Arnet Connidis: It’s at the discretion of the minister.
The Chair: There’s no appeal procedure?
Mr. Slatkoff: It is subject to judicial review in Federal Court.
The Chair: It is subject. I think it is important to put that on the record.
Senator Dupuis: My second question is for the Department of Justice, and especially the Parole Board of Canada. Can you explain this to us? You said that you were at the preliminary stage of implementing the new legal framework. You will understand that many senators are concerned about vulnerable populations, which are the primary focus of this bill. I understand that you cannot tell us today what kinds of specific measures you are going to implement. However, if the bill is passed, can you tell us if you already have agreements in your implementation plan with community groups, or with groups that focus on vulnerable populations in general, whether or not they have members who have already been convicted? Do you intend to develop tools with them? We saw yesterday or the day before yesterday that the Department of Justice entered into an agreement with a community organization to develop new tools for legal practitioners in the area of family violence.
Do you already have agreements with groups? Have you already developed specific tools? Have you already concluded agreements with groups or agencies in the field to help you prepare for the implementation of this bill, particularly for vulnerable populations?
Ms. Arnet Connidis: I’ll start in general terms, and then perhaps Mr. Broom can fill in what the Parole Board is doing specifically.
In my capacity, I have been meeting with and having discussions with a number of non-governmental organizations about the possibility of them providing concrete help to applicants who come to them. It’s a little bit complex in terms of how we could support them in doing that. We are just trying to work that out. We’ve had a number of conversations with them about needs and how we would reach vulnerable people who live in the North or in remote communities. We are cognizant of that. We’re trying to figure out the best way with all the different protocols that we need to go through for providing support on how to do that. Those are ongoing discussions that we are hoping to have in place if the legislation is passed.
That is in addition to the work that the Parole Board itself is doing in terms of developing their specific materials and their outreach programs. I’ll let Mr. Broom talk about that.
Mr. Broom: Thank you.
On the Parole Board side, we have been preparing for the coming into force, should this bill come into force, by making the online materials much easier to use. They can be filled out more quickly for applications. We’ve been doing plain language reviews to make sure that all of the instructions — and there will be a dedicated guide for the expedited cannabis scheme.
We will be using social media. We’ll be using Twitter. We will have a robust stakeholder outreach plan. Currently, we have identified thousands of potential groups, including our traditional criminal justice partners, but also organizations and groups that are specific to marginalized Canadians.
We’ll be training our officers so that they are able to troubleshoot, explain and assist applicants in moving through the process. This is in addition to our regular efforts, including a 1-800 line and having FAQs available on the website.
We are undertaking a number of efforts on the outreach front and also in terms of streamlining the application process itself, making it more easily accessible so that it can be completed more quickly. Those are the efforts.
Senator Dupuis: We talked about vulnerable populations. I asked you about that. You also know, as I do, that one of the exclusion factors is the use of the Internet, social media and 1–800 lines. These are people who do not have access to these resources. I would like to invite you to consider specific ways to reach these people, because human rights commissions know from experience that social networks and all technological means are exclusionary factors.
What I also notice is that the question of criminal records is very much related to employment. Does the Department of Public Safety or the Parole Board of Canada intend to contact both employers and unions to publicize the new process?
In its discussions with provincial representatives, did Public Safety Canada raise the possibility of entering into agreements with legal aid services, which could be on the front lines of providing these types of services to citizens?
Ms. Arnet Connidis: On your last question, no, we have not had discussions with provinces about the use of legal aid for this purpose.
We have been, over the last few years, looking at different ways of reforming, which is why we can speak to you about how difficult it would be to make it automatic.
The outreach to vulnerable organizations is an excellent point. Your point about the lack of access to online materials is actually something we have been considering in terms of the caution about being fully automated. The Parole Board is adamant that we need to continue to have paper copies because not everyone can file automatically.
I’ll turn it to you, Mr. Broom, for your specific outreach.
Mr. Broom: As part of our outreach strategy, we are writing. What we will be undertaking will be mail-based. Then we’ll be working with other partners to ensure that the message goes out as far and wide as possible. Your point about the online presence is a good one for us.
We are dedicating a number of resources to their outreach strategy. We are hoping to get the word out and collaborate, to the extent we can, with our traditional criminal justice and organizations active in the area of criminal justice to assist applicants.
The Chair: If I may add to the point raised by Senator Dupuis, there’s been a study released, I think it was about three weeks ago, about who used social media by age categories. You could clearly see that those who are educated, those in a milieu where they are more open to novelties and whatnot, those people use social media extensively. But there are categories of people, on the basis of social context, income and education levels who don’t use social media. We have the impression — we who are connected — that everybody is connected. But in fact, when you look into the social structure, that is not at all the case. I think that we should not be blurred that because we use social media, then everybody uses social media. As Senator Dupuis, Senator Dalphond and Senator Pate have mentioned, since it especially targets racialized and marginalized people, I think we have to be very mindful of that. So in your effort to try to connect with those people, I think you should take that into account. I could refer you to the study I read recently in relation to that.
Senator Pate: As someone who considers herself a techno twit, I’m very conscious of those sorts of issues.
In all seriousness, Ms. Connidis, when you mentioned you’re looking to the voluntary sector, as someone who has spent a fair bit of time in that area and dealt with one of the four previous iterations of the changes, I know the expectation that was placed on the voluntary sector to educate everybody who might be impacted was absolutely unrealistic and was done off the backs of organizations that had no funding to do that.
Given what we know about there only being seven applications for the Bill C-66 rendition of the process, as I understand it, and that we still don’t have a process for those who are convicted of communicating for the purpose of prostitution and that we now have another process, and that, most of the time, when people search the Internet for “pardons,” they actually get fee-based organizations who basically use the process that, as you would know, Mr. Broom, the Parole Board has developed for which they charges exorbitant fees on top because of the difficulties, it strikes me we’re not actually seeing the elimination of the fees at all. We are seeing the elimination of one part of the fees, but as has been acknowledged, all the fees that go along with trying to get fingerprints and records are still there, as well as the lack of accessibility. And yet, in the last government, we saw grain farmers get pardons even after pardons had been eliminated for everybody else, and we’ve recently seen some past Indigenous leaders, who are now deceased, have their records expunged.
This is probably more for Mr. Broom. I’m curious what you’re seeing in terms of going forward in how to actually assist this process to be streamlined. Senator Dean talked about support for Bill S-258, and as you’re undoubtedly aware, there’s strong support within your organization for that approach. What would it take right now for us to implement that? In most situations, where there’s a will, it can happen fairly quickly. It strikes me there must be something else that we’re not aware of that has yet to be mentioned as to why. Those structural issues could be resolved. I mentioned I’m a techno twit, but I’m told that others know how to do that expeditiously if there was a will to do it.
Mr. Broom: Thank you for the question.
We would be hopeful that we could arrive at a state where we would have the systems in place. What I could do is, from a pragmatic standpoint, speak to some of the barriers as they exist now that we would need to overcome.
One would be in the application process. The board needs to satisfy itself, for example, using the Bill C-93 scheme, as it’s being discussed today, that individuals are eligible. So we would need to confirm that the conviction was for possession of cannabis, and then, other than fines, we would need to be sure that the sentence was completed.
As it stands now, the onus is on applicants to demonstrate these factors, and we arrive at that through three main sources of information, with the exception of active service members. We have the fingerprint sheet, there are the court documents and there are local police record checks. Those three documents work together to demonstrate eligibility under the scheme.
As the minister was alluding to earlier, at this point, we don’t have the level of interoperability across the orders of government to allow for that. As my colleague in the RCMP had pointed out earlier, in the national repository, we are not going to find summary convictions. When we’re speaking of pardons for simple possession of cannabis, the vast majority would be falling into that summary conviction level, which would more be found on the local police record checks.
We would need a level of interoperability, or if we were to, instead, be looking at ways to facilitate applications that would use the existing documents, the documents you receive from courts are certified. As it stands now, we do not have the capacity to verify that these court documents are authentic. Scanning isn’t sufficient because there is a seal that would be on the court document that would demonstrate that this was an authentic court record, so we would need to have a means of authentication, we would need to have an online application and we would need to be able to receive scanned documents.
If we were looking further ahead to a more robust, integrated system, we would need to have agreements between the federal government, and that’s more in Public Safety’s domain, and provincial orders of government and below to ensure that information was exchanged electronically. We would need to have the legal structure, we would need to have the technological capacity within and between the organizations and we would also need to have the public-facing capability.
I would be optimistic that there are solutions out there that are worth investigating. I think the process of Bill C-93 moving through Parliament has demonstrated that there is a lot of will out there to move towards that. In the Parole Board, we are investigating some potential options at this point, but there would also be resources required in order to arrive at that state.
Senator Pate: Thank you for that. That’s a very helpful discussion of what you will need for Bill C-93.
In terms of Bill S-258, it would eliminate the bureaucratic process. It would put in place the original processes that were in place, when pardons were first introduced, of two and five years. It strikes me that there would be very few outstanding summary convictions of the sort you’re talking about that would be difficult to access because we’re already a year into the implementation. You’d be talking about maybe one year of individuals, by the time this came into effect, whose convictions you might have to review. My understanding is, for the most part, that police forces had not been laying possession charges for at least a year before or several years before.
In fact, if you implemented a model similar to Bill S-258, you could actually eliminate all of those procedural challenges, which is part of the reason it was developed the way it was, in consultation with folks within your departments to look at some of the barriers. Unless I’m wrong, it strikes me the structural barriers you’re talking about would all be eliminated by Bill S-258, as well as the other convictions that have now been deemed historic.
Mr. Broom: With respect to Bill S-258 and the overarching reform that it would speak to, I won’t speak to the government policy angle on that, but from an operational perspective, I’m sure it would simplify the system. However, the second part of those barriers that I was speaking to, in any system that would rely on an automatic effort to either identify, notify or purge, we don’t currently have the technological capacity in such a system. That would need to be stood up to give rise to that sort of a system.
Senator Pate: So the primary blockage is technological?
Mr. Broom: From an operational perspective, that would be a substantial barrier, and it would require a lot of work.
Ms. Arnet Connidis: The Parole Board would still need to be certain that there were no other kinds of convictions on a record. You would still need to go to the local police to make sure they hadn’t had another summary conviction. For instance, police records may show a sexual assault on record that would not be in CPIC. So it’s not just records for simple possession that they’re looking for. They want to make sure that’s the only conviction on record.
Senator Pate: Bill S-258 would actually deal with all convictions, so it sounds like it’s the technological issue that Mr. Broom pointed out.
Senator Pratte: I would just like to very briefly clarify a few points following the questions by my colleague Senator Boisvenu.
Today, with the Criminal Code as amended by Bill C-45, if someone is found with 100 grams or 1 kilo in their home, they cannot be charged with possession. They can be charged with trafficking maybe, but they cannot be charged with possession because there’s no limit to what you can possess in your home. Am I correct?
Mr. Slatkoff: Yes.
Senator Pratte: If someone is found in a public place with a quantity over 30 grams, what is the charge? Let’s say there’s no trafficking. Is it simple possession? Is that the charge?
Ms. Arnet Connidis: I can’t speak to that.
Ms. Davis: If an individual is found in public with between 30 and 50 grams, the police have the discretion to lay what is essentially a ticket or to lay a criminal charge. If they’re found in public with over 50 grams, then it is understood that it is a criminal charge.
Senator Pratte: Is the criminal charge equivalent to what is called “simple possession” in Bill C-93?
Ms. Davis: It’s a separate offence against the Cannabis Act. Previously, it would have been under the Controlled Drugs and Substances Act, and prior to that coming into force, under the Narcotic Control Act. But since the legalization of cannabis, now the offence is against the Cannabis Act, so it appears against a different type.
Senator Pratte: Therefore, someone who today is charged with possessing a quantity over 30 grams or over 50 grams cannot have access to this because the charge is not simple possession. It’s another charge.
Ms. Davis: That’s right. The only individuals who would be eligible for recourse under Bill C-93 are individuals convicted prior to the legalization of cannabis, so convicted prior to October 17.
Senator Pratte: All right. That’s clear.
Now, I want to go back to the question I had for Mr. Broom earlier, just for my own understanding. If someone is pardoned for simple possession pursuant to the process that is in Bill C-93 and is charged after Bill C-93 passes and is convicted for some other charge, then the pardon can be revoked. Am I correct? I’m trying to get at the effect of this revocation. That means that the conviction for simple possession comes back into the criminal record of the person, with all the impacts it can have. Can it have an impact on sentencing?
Mr. Broom: The short answer to this is yes in terms of, if there is a new conviction, then the record would retain both the previous simple possession of cannabis offence and the new offence. So the old record would have those two entries.
With respect to sentencing, I think that I would defer that discussion to our DoJ or Public Safety colleagues.
Ms. Arnet Connidis: With respect to sentencing, the conviction would have to be obtained through a request for disclosure. You’d have the conviction. I’m not sure how fast the revocation process takes place, if it’s before sentencing or not. If it’s before sentencing, it would be on the record for the police to use and take to the sentencing determination. I am imagining that the revocation wouldn’t happen until after sentencing, in which case the pardoned defence would not have been available for the sentencing process unless there had been a request for disclosure. We looked at it, and the minister assessed that it’s appropriate to disclose the fact that they had previously been convicted for possession of cannabis and it’s relevant to the sentencing. That would be taking into account the criteria we discussed earlier.
Senator Pratte: Thank you very much.
Senator McIntyre: My question is one of clarification on the waiting period and the fee. If an individual is charged with possession of over 30 grams of cannabis in a public space on or after October 17, 2018, would that individual have to wait five years and pay the fine to receive a record suspension?
Ms. Davis: Any individual who would be convicted after the coming into force of the Cannabis Act in October of last year would have to apply through the regular pardons process that is in place today. They would be subject to the wait periods, the application fee and the existing criteria outlined in the Criminal Records Act.
Senator Pate: The record suspension?
Ms. Davis: The record suspension, yes.
Senator McIntyre: Thank you for that clarification.
I have two questions for the Parole Board. Mr. Broom, usually decisions on record suspension applications are made by one or more Parole Board members. Clause 2 of Bill C-93 provides that applications for record suspension of possession of cannabis are dealt with by employees of the Parole Board. Do you see that as a problem?
Mr. Broom: Thank you for the question.
I think that, yes, absolutely, the mechanics of this bill would mean that it would be an administrative decision undertaken by well-trained, capable staff members, and in this instance, what would be assessed would be the eligibility of the applicant to this scheme. With a very clearly articulated legislative framework, I think the staff members of the Parole Board of Canada would be able to implement this well.
Senator Pate: Thank you for that, Mr. Broom. I’m aware of a number of situations, and I understand the Parole Board is in the process of remedying this now, and I’m aware of some cases where it has been remedied.
Just on that point, there have been a number of situations where people had historical records. I can think of a number where people served time for non-payment of fines, sometimes as long as 20 or 30 years ago, haven’t been able to produce the record of that, and two things have happened. Sometimes it’s been a fine of $50 or $100 and they’ve repaid it, essentially, and that has delayed then their ability to get a record suspension because then the time starts to run from that point. The issue has been a clerical error, if I could put it that way, that there isn’t a record, even though everybody in the system, including the folks who are reviewing it, recognize that, in fact, the chances of that person having been released from prison with a fine outstanding in those days would not have happened. Yet they’ve been required to go through the process of getting affidavits.
It strikes me when you’re saying that there will be people well trained in this area, what kind of discretion will they have in those kinds of instances? We’re seeing the Parole Board is doing a good job of trying to remedy it right now, but in the past there have been instances where people have been denied, have paid in excess of $1,000 or more and still not had a suspension, all because of allegations of an unpaid fine. What discretion would these administrative decision-makers have in this case?
Mr. Broom: Thank you for that question.
In this instance, under Bill C-93, the non-payment of fines will not serve as a barrier in order to have a record suspension ordered. In this instance, for those individuals who would apply and have the simple possession of cannabis as their offences, the board would not need to satisfy itself that the sentence has been completed insofar as we are speaking only of fines.
Senator McIntyre: Mr. Broom, normally the Criminal Records Act requires an assessment by a Parole Board of Canada member of whether the applicant has been “of good conduct.” Bill C-93 does not require that step. What is the proportion of record suspension applications that are refused because an applicant is found not to be “of good conduct”?
Mr. Broom: Thank you for the question. I have to confess that I don’t have the numbers for you on that. I might make eye contact with my colleague and see if we have anything.
Lisa Noseworthy, Acting Director, Clemency and Record Suspensions, Parole Board of Canada: I couldn’t speak with exact certainty to that statistic, but we could look into it and provide it back to the committee.
The Chair: Thank you, Ms. Noseworthy.
Senator Batters: I’m looking for two numbers here. First of all, what are the statistics for estimated number of Canadians who have a marijuana possession charge? Number two, what is the estimated number of Canadians who are eligible under Bill C-93 to receive a record suspension for their marijuana possession charge?
Ms. Arnet Connidis: Thank you.
It was pretty hard to get that exact data. We had from the prosecution service about 250,000 people we felt would have that record, a possession of cannabis conviction; however, it may not be their only conviction. We estimate about 10,000 people may be eligible for the Bill C-93 expedited process, taking into account people who may have already applied for a pardon and people who may have died since they had their conviction.
Senator Batters: So for number one, you’re estimating about 250,000 for the total number of Canadians who have a marijuana possession charge, but then you think only maybe 10,000 or less are eligible for this particular bill? Is that correct? Is that what you said?
Ms. Davis: I can expand on that a little bit, if I could.
The 250,000 to 260,000 that my colleague is referring to is an estimate that we’ve gotten in collaboration with the Public Prosecution Service. It’s speaking about charges, not necessarily convictions. Some of those may not have resulted in convictions.
Then in addition to that, as my colleague said, a number of these individuals may have other convictions on their record, which then makes them ineligible for the streamlined process. Some may also have already benefitted from a pardon if they’ve met the eligibility criteria. When we consider those factors, that’s how we get from the 250,000 to potentially 10,000 who would benefit.
Senator Batters: Sorry, I meant to say conviction with the first one. Still, those are pretty stark differences. I think with how this particular bill has been portrayed thus far in the media, people think there are a lot more people who are eligible than are actually eligible with this. Thank you.
The Chair: Mr. Slatkoff, if I may — we still have a couple of minutes — Senator Carignan asked you a question that I want to rephrase for employers who fall under federal jurisdiction. Let’s take, for instance, trains. Somebody may apply to be a train conductor, for instance, for one of the national companies, or for an air travel company or any employer that, as I say, is covered by national legislation. If he or she is asked if they have ever been charged with a criminal offence and that person has obtained a pardon under Bill C-93, is that person entitled to say “no” and not be accused of lying and be refused in terms of application for that job?
Mr. Slatkoff: I can say what the Canadian Human Rights Act prohibits is discrimination on the basis of a criminal conviction for which a person has received a record suspension. The Canadian Human Rights Act doesn’t cover all the different types of questions that an employer might ask of a potential employee. Those are generally governed by provincial labour codes.
The Chair: You have not directly answered my question. I am asked the question, “Have you ever been charged?” I say, “No.” “Have you ever been convicted?” I say, “No,” because I got a pardon under Bill C-93. It is discovered one way or the other by the employer or those who review the application. What would I do? Should I sue that employer because I’ve been rejected, or not?
Mr. Slatkoff: Well, I can’t give legal advice, obviously, but there is a Supreme Court case — and the name escapes me right now, but we can provide it — that is quite dated, but it involves a Quebec judge who was disciplined for, I believe, answering the question that you suggested in the negative, along the lines of, “Have you ever been charged with a criminal offence?” That potential judge in his application replied in the negative, and in fact, he did have a conviction for which he received a pardon. I believe the Supreme Court found that it was inappropriate for the candidate to have not told the truth in his application.
The Chair: So in other words, the person is compelled to say, “Yes, I have been charged”?
Mr. Slatkoff: I think it really depends on the nature of the job for which the person is applying and the jurisdiction.
Ms. Arnet Connidis: I would just add that if they are asked if he or she has ever been arrested, yes, just like anyone, you’re compelled to tell the truth. There’s nothing that absolves you in law from telling the truth. The issue would then be, “I received a pardon for that or a record suspension,” and that employer would not be allowed to discriminate against them on the basis of a record suspension.
Senator Gold: The witness just answered it better than I was going to, so thank you for that. I agree.
Senator Pratte: That was my point, but I want to make it absolutely clear. I want to be honest and reply to the question, “Have you ever been charged?” Legally, I should say, “Yes,” if I have been charged, but then the employer cannot discriminate based on that law. Nothing in law says that asking that question in an application file is illegal. Is that correct?
Ms. Arnet Connidis: There may be provincial laws that might. A number of states in the U.S. have ban-the-box, which is you cannot have a box on your application form that asks, “Have you ever been charged?” That would be provincial legislation, and we do have those kinds of conversations with our provincial counterparts. But I would say conversely there’s no law that says you must tell the truth, and otherwise you’ll have a criminal charge if you don’t answer this properly. If it is later found out that you lied to the employer because you didn’t say you had a charge, they would probably have grounds for firing you.
Senator Pratte: Thank you.
Senator Dupuis: I have a supplementary question. Ms. Arnet Connidis, if I understood your answer correctly, indeed, we are obliged to tell the truth. Are you talking to us about the Therrien case, Mr. Justice Department representative? Yes, that’s right. You are obliged to tell the truth, but if you are a federal government employee, your employer does not have the right to ask you a discriminatory question, that is, it does not have the right to ask you a question based on the pardoned conviction. However, the employer may ask you a question about the charge and, at that time, you are not protected in the same way.
It is important to specify this. I want people to understand that there is an educational aspect to our work, and this is different in other provincial laws, because the prohibited ground of discrimination is not the same: it can be either the charge, the criminal record or the pardoned conviction.
Do I understand that your answer is that, in the federal government, the employee who is a train conductor, for example, is protected against discrimination if he has received a pardon? Is that why Bill C-93 seeks to make it easier for a number of people to obtain a pardon?
Senator Carignan: That is the problem; if a person has obtained a pardon, but the question is: “Have you ever been convicted of an offence related to the possession or trafficking of drugs?”, even if the person has obtained a pardon, he will have to answer “yes”. If he answers “no”, he lies, and, as in the case of Judge Therrien, he could be told: “I’m firing you because you lied during the job interview.”
The Chair: The minutes don’t register a nodding of the head, and I would like you to be on the record in relation to this.
Mr. Slatkoff: Yes, that’s right.
Senator Carignan: During the whole cannabis debate, there were many questions about employment, the Canada Labour Code and employment standards. Earlier, the minister said: “If you think an amendment is necessary, propose it to us.” The problem is that the Criminal Code is amended, but the Canada Labour Code cannot be amended by stating that asking such questions is illegal, or that they should not be considered, or that they should not be part of a pre-hiring interview.
Did you consider revising labour laws with regard to cannabis more specifically? Have you been questioned about this? People want us to talk about the practical aspects. The danger is that we will tell them: “Perfect, you are forgiven, everything will be fine.” Whereas, in reality, this is not what will happen. People will still be stigmatized for a simple possession conviction when, now, possessing less than 30 grams of cannabis is legal. This does not solve their problem; it is instead in terms of legislation that changes must be made. Have you had any discussions with your colleagues about the Canada Labour Code?
Ms. Arnet Connidis: Thank you for your question.
Yes, we have those conversations. I would say right now they are at a superficial level, primarily because of our workload. There are many things that we’ve had on our plate to do, and some things we know we need to get there have come up on our radar for many years. It would be part of when we are looking at the Criminal Records Act and modernizing the broader policy issues of who we are helping and what other things we need to do to help. In the criminal justice area, a lot of the solutions are not necessarily just with the criminal justice legislation. It requires conversations across the government, federally, and with other orders of government as well. It is definitely a “want to do,” something we’ve been exploring and having initial conversations about. We always wait for the, “When this is passed, we’ll get right down to it.”
Senator Dalphond: I have a clarification to make. In Quebec, it is section 18.2 of the Charter of Human Rights and Freedoms, which states the following, and I quote:
18.2 No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.
That being said, it is not obvious that the deletion would be covered by section 18.2. This is also an issue that has been raised with respect to the Canadian Human Rights Act; the same difficulties of interpretation arise there.
Senator Pate: Following up on that and your earlier comments, I’m curious as to what kind of other discussions you’re having with federal-provincial-territorial colleagues at the table, as well as what kind of public education efforts you are looking at.
Just this morning I was sent a piece from the United States talking about the effects of records on individuals and some of the efforts being taken to educate the public around what they can and can’t ask. One of the things that we’ve mentioned is employment, but increasingly landlords are also putting in leases and the like that you can’t rent an apartment if you have ever been arrested or have a criminal charge or a conviction. There’s no mention of pardon.
It strikes me that there are a number of areas where we’re seeing human rights and potentially Charter violations that aren’t being corrected. I’m just curious. I know you were saying there is a lot on your plate, but is the Parole Board, Public Safety or anyone else — the police — looking at some public education initiatives in that area?
Ms. Arnet Connidis: We haven’t had direct conversations about what our partners would be doing in public education in that respect. Much of our collaboration at a provincial level is focused on different aspects of crime prevention. We view pardons as a crime prevention tool because they help reintegrate people.
Mr. Broom: In terms of public education surrounding how to interpret or what questions to ask surrounding a records suspension, that’s not something that we would typically do. We would certainly be working with Public Safety in these areas. Clearly that’s a point that is worth very careful consideration.
The Chair: Thank you, Ms. Connidis and Ms. Davis from the Public Safety department; Mr. Slatkoff and Ms. Noseworthy from the Justice Department; Ms. Gonzalez from the RCMP; and Mr. Broom on behalf of the Parole Board. We’re grateful that you made yourselves available to answer our questions and have this discussion with us this morning.