Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 65 - Evidence - June 13, 2019
June 13, 2019
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.
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
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.
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.
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 five 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
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.
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.
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.
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.
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.
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.
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
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 five-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.
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.
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 —
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
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
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.
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
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
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
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.
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.
Public Safety Canada, has a greater overview of the full consultation by
officials, and I’ll ask her to comment.
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.
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
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.
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.
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.
McIntyre: I’d like to hear from the RCMP on this issue. What are your
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
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.
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
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.
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.
Pratte: So it is a difference between the two?
Mr. Goodale: That’s correct.
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
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.
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
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
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
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
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.
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.
Batters: Any other type of criminal conviction whatsoever, thank you.
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.
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
Batters: Public possession, yes.
Mr. Goodale: Yes.
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
Mr. Goodale: Angela wants to comment on this.
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.
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?
Connidis: That would be a case where the conviction was for simple
possession regardless of what the original charge had been.
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.
Batters: What is the trafficking limit threshold?
Ms. Gonzalez: I can’t speak to that.
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.
Batters: Thank you.
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.
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.
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.
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
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.
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
Mr. Goodale: I’ll just check on jurisdiction, but the
Canadian Human Rights Act applies, right?
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.
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
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.
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.
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
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
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
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.
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
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.
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?
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
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.
Boniface: If they had more than one conviction for possession, is that a
single application or a multiple application?
Connidis: A single application, and the convictions all have to be for
simple possession of cannabis.
The Chair: But it could be multiple convictions?
Boniface: At different points of time.
Connidis: Say they had a five-year 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.
Boniface: Would they have two applications or one?
Connidis: One application.
Boniface: So I can wipe out that offence in a single application?
Connidis: The offence is still just simple possession of cannabis, though
they may have had two.
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?
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.
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?
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
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?
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
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.
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
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.
Connidis: Thank you for the question.
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.
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.
Ms. Gonzalez: 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.
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.
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.
Boisvenu: At the time?
Ms. Gonzalez: Yes.
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 quickly on
that very point, Senator Batters?
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
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:
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
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.
subclause 6.1(2), what are the conditions, the criteria and the
circumstances under which the minister can approve the disclosure of the
Mr. Slatkoff: 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
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.
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.
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
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
The Chair: It is subject. I think it is important to put that on the record.
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
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
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.
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.
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?
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?
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
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
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.
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
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
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
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.
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.
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.
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?
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.
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.
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.
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
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
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.
Pratte: Thank you very much.
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.
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
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.
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.
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.
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
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.
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
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.
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
Mr. Slatkoff: I think it really depends on the nature of
the job for which the person is applying and the jurisdiction.
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
Senator Gold: The witness just answered it better than I was going to, so thank you for
that. I agree.
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?
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.
Pratte: Thank you.
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
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?
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
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.
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
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?
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.”
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
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?
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
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.