THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS

EVIDENCE


OTTAWA, Wednesday, April 25, 2018

The Standing Senate Committee on Human Rights, to which was referred Bill C-66, An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts, met this day at 12 p.m. to give consideration to the bill.

Senator Wanda Elaine Thomas Bernard (Chair) in the chair.

[English]

The Chair: Good afternoon. Before we begin, I would like all senators to introduce themselves, starting with the deputy chair.

Senator Ataullahjan: Salma Ataullahjan from Ontario.

Senator Patterson: Dennis Patterson, senator from Nunavut.

Senator Andreychuk: Raynell Andreychuk, Saskatchewan.

[Translation]

Senator Cormier: René Cormier from New Brunswick.

[English]

Senator Pate: Kim Pate, Ontario.

Senator Cordy: I’m Jane Cordy, a senator from Nova Scotia.

The Chair: And the other deputy chair.

Senator Cordy: And the other deputy chair, yes.

The Chair: I’m Wanda Thomas Bernard, a senator from Nova Scotia and chair of this committee.

Today, we continue our study of Bill C-66, An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts. I would encourage senators to consult the law clerk’s office should any senator plan to move any amendments to this bill.

Today, we are pleased to welcome the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness. I’m told Minister Goodale is available until 1 p.m. this afternoon but that government officials will be available until 1:30 p.m. for further questions from senators. Accompanying Minister Goodale, we have Kathy Thompson, Assistant Deputy Minister, Community Safety and Countering Crime Branch, Public Safety Canada; and Angela Connidis, Director General, Crime Prevention, Corrections and Criminal Justice Directorate.

From the RCMP is Serge Côté, Chief Superintendent and Director General, Canadian Criminal Real Time Identification Services, Specialized Policing Services. From the Parole Board of Canada, we have Daryl Churney, Executive Director General; and Brigitte Lavigne, Director, Record Suspension and Clemency. From the Department of Justice Canada, we have Nathalie Levman, Counsel, Criminal Law Policy Section; and Shawn Scromeda, Senior Counsel, Defence and Immigration Portfolio, Public Safety Legal Services.

Minister Goodale, you have the floor.

Hon. Ralph Goodale, P.C., M.P., Minister of Public Safety and Emergency Preparedness: Thank you very much, Madam Chair and honourable senators. It’s always a privilege and a pleasure to have the opportunity to appear before a Senate committee and talk about the legislative agenda before Parliament.

[Translation]

Thank you for inviting me today to discuss Bill C-66, an Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts.

This is an important step forward in our efforts to recognize the discrimination that has targeted LGBTQ2 communities — which is not entirely a thing of the past — and to make Canada a more open and inclusive country.

[English]

Madam Chair, I’m glad you introduced the array of officials with us, including the four at the table. I will take this opportunity briefly to make a point about Kathy Thompson, my Assistant Deputy Minister, to thank her for her exemplary work as a senior official at Public Safety Canada, and to congratulate her on a new role she will soon be taking on. She is leaving her present position and will shortly become Vice-President for Strategic Policy for the Canada Border Services Agency, CBSA. I’m glad Kathy is staying within my portfolio. I lose her excellent assistance and advice as assistant deputy minister, but I look forward to continuing our work through CBSA. Kathy, thank you very much, and best of luck in your new assignment.

Bill C-66 is part of our government’s commitment to championing LGBTQ2 rights, and recognizing and addressing past wrongs. It builds on other pieces of legislation, such as Bill C-16, which prohibits discrimination on the grounds of gender identity and gender expression, and Bill C-39, which will remove certain unconstitutional provisions from the Criminal Code.

It is also part of giving concrete expression to Canada’s recent apology to LGBTQ2 Canadians.

No one should ever have been arrested, much less convicted, for engaging in consensual sexual activity with a partner of legal age, and no legislation can undo the years of discrimination or the hardship of living with an undeserved criminal record. By allowing for the expungement of those records, Bill C-66 provides a way of addressing some of the injustices of the past and helps us move toward a more just and inclusive future.

I certainly hope we all agree about the value and importance of this specific initiative. I am aware there have been some concerns raised about certain aspects of the legislation, both in this committee last week and more generally as part of the discussions in the public sphere. I will speak to as many of those concerns as I can in the time remaining to me at this moment. If I leave anything out, I hope that you’ll feel free to ask me about it any of those other issues.

First, I know there have been questions about which offences are covered by Bill C-66 and which are not. At this time, the bill allows for the expungement of convictions for “gross indecency,” “buggery” and “anal intercourse.” These are the three specific offences that have been most clearly used in the past to target LGBTQ2 individuals. Importantly, these three are no longer in effect in the Criminal Code.

To be sure, these are not the only offences used to discriminate against the LGBTQ2 people. Others, such as vagrancy and offences related to bawdy houses have often been applied in discriminatory ways. The difficulty with those other laws, is that in those instances, we are talking about problems related to laws that are not inherently unconstitutional. Indeed, those laws remain in effect. It becomes much more complicated to determine, decades later in many cases, whether a particular conviction under one of these statutes was legitimate.

I am certainly sympathetic to those who were targeted by the unfair application of these types of laws. While we have not included them in the initial group of the offences that are mentioned in Bill C-66, we have quite deliberately drafted the bill in such a way as to leave the door open for other offences, after due consideration, to be added in the future.

There have also been concerns expressed about the destruction of expunged records and whether this would have the effect of eliminating the historical evidence of discrimination. There is no question we must understand the dark chapters of our past in order to come to terms with them, improve the present and build a better future.

That is why it’s important to note that expungement will only result in the destruction of the criminal record itself; references to arrests, charges and convictions in other documents, such as court transcripts, or records of investigation, will remain in existence. Anyone who wants to preserve a copy of their conviction record can obtain one prior to applying for expungement by simply making a request under the Privacy Act.

I’m also aware of concerns about the nature of the application process under Bill C-66, which I agree should be as simple and stress-free as possible. That’s why, for instance, there will be no application fee. We have also committed $4 million to ensure adequate resources are in place so the Parole Board of Canada can manage the situation, and the process can be smooth and expeditious.

Applicants will have to demonstrate the activity in question was consensual, and that it involved partners of legal age. This is important, because obviously we do not want people who really did commit criminal acts to make improper use of this process. However, in recognition of the fact that a lot of time has gone by in many cases, sworn statements may be accepted as evidence in the event police or court records, or other documentation, are simply unavailable at this late date.

There have also been questions about the age of consent. The criteria in the bill established the age of 16 as the cut-off, with a close-in-age exception, even though it’s true that, when most of these charges were laid, 14 was the legal age of consent for opposite-sex partners.

To the question of why we’ve chosen 16 rather than 14, the answer is very straightforward: We’re offering expungement for activity that would be legal today. Sexual activity between an adult and a young teenager is not legal today, and that is obviously for good reason.

That gets at the essence of what we’re trying to do here. We’re trying to make things right, to the extent that is possible all these years later, for people who did nothing wrong but were unjustly persecuted, to our collective embarrassment and shame.

Bill C-66 does not address — or attempt to address — every injustice committed against LGBTQ2 Canadians. But it is an important and overdue step in the right direction. I hope this committee will see fit to support the legislation. If you wish to make formal observations about it or informal suggestions about where we should go from here and what the next steps should be in the process of redress and reconciliation with LGBTQ2 communities, I would certainly welcome that.

I thank you for your attention, and my officials and I would be happy to try and answer your questions.

The Chair: Thank you for your presentation, Minister Goodale.

We have a list of senators who want to ask questions.

Senator Ataullahjan: Thank you, minister, for being here.

In his apology to the LGBTQ2 Canadians, the Prime Minister specifically referenced the bawdy-house provisions of the Criminal Code, stating that:

Bathhouses were raided, people were entrapped by police.

Our laws bolstered and emboldened those who wanted to attack nonconforming sexual desire.

And yet the bawdy-house provisions of the code have not been included in the schedule of eligible offences for expungement. This omission has generated significant concern for LGBTQ2 Canadians and others. Witnesses who testified before the committee last week, and also in written submissions sent to the committee, have urged the bawdy-house provisions of the code be included in the list of eligible offences.

My question is whether you can tell us the reason why the bawdy-house offences have been excluded from the schedule.

Mr. Goodale: Yes, senator. As I mentioned in my remarks, we have focused on the three defunct provisions in the Criminal Code that were the most discriminatory, and those provisions are no longer in effect.

With respect to other provisions, like the ones you referred to in relation to bawdy houses, they are not inherently unconstitutional. They are still in effect as of this date. The process of dealing with them is a lot more complicated. Rather than delaying this whole process, to the point where we could declare perfection with respect to every previous act that was discriminatory, we decided to move on the three that are specified in this bill. But we’ve drafted the legislation in such a way that Parliament may, in its judgment, after due consideration of other issues and other offences, add those other offences to the provisions of Bill C-66.

The cases in relation to the three offences that are specified in Bill C-66 are really quite clear-cut and we are in a position to move now. We have left the door open for future consideration of other offences at a later time, but didn’t want to delay the whole process until that later time. We can move on these three now, and the work can continue on the others.

The Chair: My apologies. I should have started with the sponsor of this bill, followed by the critic. Now we’ll go to Senator Cormier.

Senator Cormier: I’m going to ask my question in French, Mr. Minister. I want to first welcome you and thank you for this important initiative for the LGBTQ2 community.

[Translation]

This bill is extremely important. As you stated, it is a good step forward that will allow us to lay a good foundation upon which we can build. As you mentioned, as the sponsor of this bill, I am concerned by some briefs sent to us by witnesses.

You raised the main issues, so I will not reiterate them. However, to be quite frank — I think we need to be reassured — I would like to better understand why you did not include bawdy houses. When we review people’s criminal records, we see that the issue of bawdy houses was frequently used, as well as the other possible offences. So I would like to delve deeper into the issue of bawdy houses.

Some of the testimony we heard, such as a comment made by Senator Joyal, mentioned the Supreme Court of Canada rulings in the Bedford and Labaye cases, in which it was suggested that the bill be broadened to include bawdy houses. In the Labaye decision, the Supreme Court recognized that the fact of being an active member of a club whose members swap partners falls entirely within individual rights protected by the Canadian Charter of Rights and Freedoms. In the Bedford case, the Supreme Court handed down its decision recognizing that running a bawdy house was not necessarily a crime in certain cases, and that that section of the Criminal Code was therefore in violation of the right to security of the person as guaranteed by section 7 of the Canadian Charter of Rights and Freedoms.

Do these two Supreme Court of Canada decisions not meet the criteria for an historical injustice, as described in subsection 23(2) of the bill, that is to say the criminalization of an activity that no longer constitutes an offence under a federal statute? You provided us with a partial explanation, but why these exclusions, given the Supreme Court’s decisions?

[English]

Mr. Goodale: Senator Cormier, I would invite counsel from the Department of Justice to add to this from a technical point of view in relation to those two judgments. The issue that was before us, the challenge that was before us, was to identify the previous offences under the code, that had the most discriminatory application, and those are specified in Bill C-66.

We acknowledge there were other circumstances that would also have been considered discriminatory, but the legal issues around them are more complex in terms of the provisions in the law still being in effect in some cases, the Criminal Code provisions still being part of the Criminal Code. Whereas the three we have acted on are not in effect; they are, in fact, defunct.

We were faced with this challenge: Can we, in one piece of legislation, at one time, resolve all of the legal issues between the more complex provisions and the ones that are more straightforward? And we concluded that, in the cases of the other instances of potential discrimination, we should allow some further time for reflection with respect to those, but there were three that were examples of the most severe discrimination — and the cases were very clear-cut — where we could move now.

We chose to do that, but we wrote the law in such a way that other offences can be added, in Parliament’s judgment, when due consideration has been given.

We didn’t want to say, “This is it, that’s all, end of story.” It’s the beginning of a process. We’re recognizing three right up front and the door is open for others after due consideration has been given.

Can I ask Mr. Scromeda if he has something to add to that, specifically with the court judgment?

Shawn Scromeda, Senior Counsel, Public Safety, Defence and Immigration Portfolio, Public Safety Legal Services, Department of Justice Canada: Just to outline the kind of legal complexity that applies, while those decisions did in fact strike down the provisions — in part, in the case of bawdy house — they did not actually strike down the part in relation to the concern about LGBTQ2 persons and the indecent aspect of it. They struck out the part dealing with prostitution. The part of concern in relation to this bill is still existent in law.

In respect of indecent act itself, it’s true the further Supreme Court decision did narrow the definition as a matter of interpretation, partly in light of constitutional principles. However, the offence still remains in force. In terms of proceeding with expungement, those offences still exist. A fundamental principle of this bill is the expungement should only take place through things that are not criminal today. Those offences in relation to the area of concern of this bill remain on the books.

[Translation]

Senator Cormier: I want to be sure I completely understood your comments. Since the bill in its present form allows for the addition of offences under section 23, as well as criteria to be met under section 24, it was impossible for you, in that context, to add bawdy houses, considering that you might specify criteria that would make it eligible?

[English]

Mr. Scromeda: They potentially could be added in the future. I think most likely the appropriate step would be legal reform first in respect of the offences, and then consideration of expungement of proceeding offences, which is effectively what we’ve done with the offences currently specified under Bill C-66.

Senator Andreychuk: Following on that, minister, the Prime Minister gave the apology, which was certainly heard by all of Canada, if not beyond, and it included bawdy houses. Now you’re saying it’s technical and difficult and it will be in the future. Is there an initiative now to change the Criminal Code on bawdy houses?

Mr. Goodale: The Prime Minister has a senior adviser appointed for the purpose of dealing with all LGBTQ2 issues; Randy Boissonnault, the member of Parliament from Edmonton Centre, is fulfilling that role. He did a huge amount of consultation before we drafted Bill C-66, and that consultation continues.

When we introduced the legislation we made it clear this is the beginning of a process. The consultation needs to be ongoing, and no doubt the consultation will identify other issues that need to be addressed along the way. We’re not to the point yet where we can introduce legislation, but we are examining all the instances of discrimination, including legislative discrimination, to determine how we can address those types of issues.

Senator Andreychuk: So it’s a work-in-progress. Somewhere down the line there is no actual bill being contemplated at this time?

Mr. Goodale: A bill is not in the process of being drafted. The issues are certainly being examined, but there is no further legislation in the mill at this time.

Senator, I think of many of the groundbreaking issues upon which the Senate has been a leading advocate for change in the past, and indeed this may be an area where senators want to be involved in the examination, outside the context of specific legislation, actually taking up the issue and examining where future adjustments are required to make sure we put this kind of historical discrimination behind us once and for all.

Senator Andreychuk: Minister, I suggest this one doesn’t need more study; it needs some follow-through. The community has been very vocal as to what they want changed. I think it doesn’t need more, so I throw that into your mix also.

Another area of concern for me is that in the future it can be amended; you can add and list. You keep referring to the term “Parliament.” What I see is the Governor-in-Council will get the regulations and the criteria, and the Governor-in-Council can add to this list.

I have two concerns on that. That’s not a direct parliamentary involvement; that’s more of an executive involvement. I presume there will be some filing. You might enlighten me on how the public will get to know that the Governor-in-Council is doing this. Is it normal regulations?

Secondly, I’m worried about the education. When it’s done by Governor-in-Council, it rarely gets out of Ottawa. We’re talking about a very broad country. The involvement, I think, of Parliament is very important. To me, it’s not clear in this bill exactly how all that is going to occur so there is parliamentary oversight and those who wish to express themselves on both sides of the issue get to say so through their Parliament.

Can you walk me through that?

Mr. Goodale: What is set up in Bill C-66 for those future potential changes is, in fact, the normal Governor-in-Council process. That typically does involve —

Senator Andreychuk: Filing.

Mr. Goodale: — filings and ample public notice and so forth. Given the nature of these kinds of issues, I suspect there will be many Canadians who would be proactively engaged. I can’t imagine this being any kind of a secret or covert operation.

Senator Andreychuk: On the expungement itself, if you apply and if you can find those records in the system and you follow through and you’re denied, what is the alternative for that person then?

Mr. Goodale: I’ll ask the Mr. Churney from the Parole Board to comment on that.

Daryl Churney, Executive Director General, Record Suspension and Clemency, Parole Board of Canada: As a first step, when we’re examining the application, if there’s a question of concern, an inconsistency or something we’re not clear on, we would go back to the applicant first to give them the opportunity to provide additional information or clarity that might help us resolve the issue. That would be our first step.

If the applicant for some reason does not meet the criteria set out in the legislation and we do notify them about a refusal to expunge, this act does not take away someone’s ability to apply for the Royal Prerogative of Mercy, for example. That remains an option. There are options under the clemency framework. For example, someone could apply for a free pardon, for example, which is, in effect, saying that the offence never took place.

We would make every effort to try to work with the applicant to resolve the issue and ensure they understand the criteria they need to meet and what documentation would assist them in getting there. We’re quite prepared to offer that assistance.

Senator Andreychuk: Was an appeal process contemplated?

Mr. Goodale: The decision would be subject to judicial review.

Senator Andreychuk: Administrative, though? It’s not an appeal on the substance. It would be an appeal on the administrative.

Mr. Scromeda: Yes.

Senator Andreychuk: It’s not an appeal.

Mr. Scromeda: Not a direct appeal, no.

Senator Andreychuk: Not a direct appeal. Thank you.

Senator Pate: Minister Goodale or Mr. Churney, how many RPMs, Royal Prerogatives of Mercy, have been issued in the past year or ever 10 years, and in what context? Have any of them been in relation to this? Clemency, yes.

Mr. Churney: I have the summary. I can tell you for the last 10 years, the period from 2007 to 2017, the Parole Board received 377 applications for remedy under the Royal Prerogative of Mercy; 278 were denied and 19 were granted.

Let me look here for a quick breakdown. Six of those were with respect to a free pardon. I would be happy to provide my list of the breakdown to the committee after the hearing if that’s helpful.

Senator Pate: Thank you.

Senator Andreychuk: On the archives issues, obviously there is a lot of misunderstanding, including when I started, as to who owns the files and the records. I was zeroing in on the actual expungement in particular.

Minister, you’ve drawn our attention to a whole judicial system and police prosecuting system that would not be expunged. Has any contemplation been given to this? There is a feeling out in the community and the debate is about erasure of the records or not. You’re saying it’s really a narrow band that will be expunged and the rest will still remain, which has its pluses and minuses, of course.

Mr. Goodale: I think you’ve heard the pluses and minuses in the testimony that has come before the committee.

What is expunged is the record of the conviction because it should never have been entered in the first place. The rest of the judicial process, of course, has records, but what we’re eliminating is the conviction.

Mr. Scromeda, do you have any further comment on that?

Mr. Scromeda: Yes, that is correct. The bill does provide that the records may be held by more officials than just the federal, in our case the RCMP, and it might be held by other federal departments, in which case they are also obligated under the bill to expunge the records, to destroy their records. They may also be held provincially or by courts. In those cases, there is not an obligation. We don’t have a direct jurisdiction, but they are informed under provision of the bill. Normally they do cooperate, for example, in respect of record suspensions under the Criminal Records Act.

We also advise the provinces and the courts, and they normally do cooperate with us. We don’t have direct jurisdiction over them, but they normally do cooperate. We certainly expect them to do so here.

Senator Andreychuk: Expungement is being done because of harm done. It’s inappropriate, in our opinion now, that those charges were ever there. There is as much harm done in laying a charge and not proceeding with it.

I think there’s a misunderstanding that expungement is going to clear off everything. It will not. If you were convicted, it will be that final stage and not all the other issues of whether you should have been charged in the first place and what happened during the process. I want that clarification.

Mr. Goodale: Sadly, Senator Andreychuk, after the fact we are not able to correct everything historically that should not have happened. What we can do is provide expungement of that record, and that’s what this legislation allows us to do.

If we could somehow magically correct everything else that went wrong, I think Canadians would want to do that. When you’re dealing with a situation after the fact, you try very hard to correct what you can and make things right at this stage, which is many years after the fact.

Senator Cordy: Thank you, minister, for being here, and thank you to all the officials who are here today to discuss this bill, which is definitely an important step forward when we look at the unjust arrests of many members of the LGBTQ2 community in the past. This is a giant step forward. The Prime Minister’s apology was also welcomed, not just by members of the LGBTQ2 community but I think by most Canadians. It was long overdue and much appreciated. Please pass along that to the Prime Minister.

I would like to speak about the application process, which you mentioned in your remarks. We heard from one of our witnesses last week, James Lockyer, that those who are deceased shouldn’t have to apply and that their records should be expunged automatically. I know there is a provision that a family member can do it, but some family members might not want to go through the process. As the old saying used to be, let sleeping dogs lie and just forget about it. His comments were that it should be automatic for those who are deceased.

Second, the application process. I’m really pleased to see there is no fee and that $4 million has been set up for the application process. What we did hear last week from some of the witnesses, some of whom had records for unjust causes, was that for many people they don’t know the process. They don’t know how to go about finding this information and what is step one and step two. I’m wondering how this $4 million would be spent, and could you answer Jim Lockyer’s question about people who are deceased.

One of the suggestions made last week was for those who might have to go to legal aid or to a lawyer, that those costs come out of this $4 million, so they are at least put in the right direction in the application process.

Mr. Goodale: Mr. Churney, could you step through the application process and how the Parole Board itself would be endeavouring to assist people in making a proper application and putting their best case forward.

Mr. Churney: Certainly. We’ve already begun some work, senator, with respect to preparing an application guide that would directly assist applicants in making their case to the Parole Board. We have developed both the application form and essentially a step-by-step guide that would, in very plain language, guide people through each of the steps required for them to provide documentation. This then links to the criteria in the legislation. By no means are we expecting applicants to have read the legislation or be legislative experts.

We will make sure that information is online and it is in hard copy and available. When the legislation comes into force, we will make efforts to ensure we have a 1-800 line available. That is under way right now. That information is posted on the canada.gc.ca website and it is available on the Parole Board website. Notifications will go out to criminal justice partners as well as others, such as in the LGBTQ2 community, to make them aware of the passage of the legislation. Staff within the Parole Board will be trained with respect to assisting applicants, either in person, over the phone or through email, about how to fill out the application and where to retrieve information. We’re prepared to assist applicants throughout that process.

Senator Cordy: Is it only online, or is there somewhere that somebody can go and pick up a piece of paper, an application form, to fill out?

Mr. Churney: I’m quite sure we’ll have paper copies available at the national office and in our regional offices. Certainly we can make distribution available to broader networks as well.

We do want to make this consistent with the intent of the bill to make this as easy as possible for people.

Senator Cordy: Because some are much older and maybe would prefer to take a pen to paper. In Nova Scotia there would be one regional office. Can you ensure it would go out to organizations involved in the rights of LGBTQ2 communities so it’s an easy step for them to go and get it?

Mr. Churney: Yes. We’re working with the LGBTQ2 Secretariat at Privy Council Office to access their database of community organizations we should notify so they also have the links to the appropriate material. We are actively thinking about that.

Senator Cordy: I’m also going back to James Lockyer’s comment about those who are deceased. Why isn’t it automatic?

Mr. Goodale: The issue, senator, is establishing that the information is before the Parole Board to make a considered judgment as to whether this particular person, whether living or deceased, actually qualifies for the terms of the legislation. In other words, the behaviour was consensual among adults. Whether the person is still alive or not, those facts need to be determined.

We’ve tried to make the process as open, accessible and simple as it possibly can be to ensure that there isn’t a procedural barrier standing in some person’s way when they’re attempting to address a historic discrimination.

Senator Pate: Thank you all for being here and for your evidence, as well as all of the work you do on a daily basis on this. I echo thanks from the LGBTQ2S community.

My question will follow up from some of the others and, in particular, Senator Cordy’s. In considering the process of expungement of the records, I understand, particularly from your most recent comment on this, Minister Goodale, that one of the issues you’re concerned about is whether, in fact, the person is someone whose record should be expunged under this provision. However, as Ms. Thompson indicated and as she said in the past when she was before the committee, there will be difficulty gathering evidence and so sworn statements will be accepted.

It then begs the question of how significant and important that is, particularly when we’re talking about very historical records in some cases? Whether you have given consideration or did give consideration, and why you decided not to go with a process where you could just deem all those records expunged if they’re past a certain date and they fit those categories. Those individuals who aren’t any longer in the system or haven’t been since those records.

What was the reasoning for not looking at a process that didn’t involve an application form and did, as has been done in other jurisdictions, just apply an automatic expungement process or deemed expungement process?

Mr. Goodale: Again, it’s to ensure the integrity of the system, as much as humanly possible with historical issues that go back a great many years. The Parole Board is being called upon to make decisions. We want the appropriate information to be before the Parole Board so their decision-making process can be a conscientious one.

Some of the people we consulted said if you make it across the board and automatic, in a way, you diminish the value of the decision being made. The objective here is to have a solid basis for the decisions so that the integrity of the process carries not only legal authority but also the moral authority. This is not in any way a superficial exercise. This is something that is conferring upon people the historic claim to justice they were always entitled to. It’s addressing that discrimination and making sure it has the appropriate value and gravitas.

Senator Pate: Thank you for that. I hadn’t actually heard that as a concern or comment in any of the information I’ve received until now. But given that Ms. Thompson, when she was before the house committee, indicated there is somewhere in the neighbourhood of 9,000 records of people who have not applied, it strikes me that may not be the issue. I think it’s commendable there is no cost involved, but could you describe how it worked in the U.K. and Germany when they invoked an automatic suspension? It is my understanding, from everything that I’ve been able to read, that none of those concerns you’ve raised were actually a concern, and presumably they would be for any jurisdiction.

Mr. Goodale: Could I ask Kathy to comment on that directly about how the process may have worked in other countries?

Kathy Thompson, Assistant Deputy Minister, Community Safety and Countering Crime Branch, Public Safety Canada: Thank you for the question.

With respect to some of the other countries that we looked at, as you know, of course, Canada is proposing an application be required. In Australia, they also require a similar process. In England and Wales, while they do have an application process, unless it is done posthumously, in that case it is automatic. In Germany, there is no application process. New Zealand and Scotland have a process similar application process to Canada.

Senator Pate: Were any of this committee's concerns raised in Germany and the U.K. in particular?

Ms. Thompson: In Germany and the U.K., we understand there were different considerations that weighed in favour of going to a more automatic process. I can’t speak to how many charges they were looking at in their case, but when we looked at it, as the minister said, those were the considerations that were advanced to the government.

Senator Pate: You indicated 9,000. The New York Times, if this is accurate, in June of last year reported that 50,000 records were expunged automatically in Germany. There was less bureaucratic time, energy and cost, as well as being more efficient for those seeking expungement.

I’m curious as to whether any of that weighed into your decision. If it was considered, why it was not followed through? If it was not considered, perhaps why not?

Mr. Goodale: Senator, the process we’ve devised here is intended to be as simple, as fair and based on sound principles and integrity as we could possibly make it. England and Germany have chosen to go a different direction. Australia, New Zealand and Scotland have gone the same direction as Canada. Different considerations would apply in different jurisdictions.

At the end of the day, we have a process that would be called upon to deal with 9,000 or 10,000 files over the course of the next couple of years. We’ve provided the budget to make that happen, and we think that process is fair and does not put impediments in the way but will lead us to the correction of historic injustices in a way that will carry full authority, credibility and gravitas at the end of the day.

Senator Pate: Ms. Thompson, could you indicate perhaps why it wasn’t considered?

Ms. Thompson: In support of what the minister said, Madam Chair, it wasn’t an issue. You mentioned the 50,000 records. It wasn’t a capacity issue in terms of how many records are there. As the minister said, criteria was established by the government. We wanted to ensure the criteria were met and that the acts being considered for expungement were, in fact, between consenting parties, same sex and were eligible under the three identified offences.

It was really wanting to put a process in place that was as simple as we could possibly make it with respect to the application process and to properly support that application process. But by the same token, we wanted to make sure there was rigour to meet the criteria the government put forward.

Senator Pate: I would just encourage that it be re-examined, given you’re doing an ongoing process. Your evidence is that you say the RCMP has this information in its repository, and you’re willing to accept sworn statements. It seems to me you have the ability to actually do that process internally. Thank you very much.

Senator Martin: My apologies for being a bit late, and thank you all for being here.

In responding to Senator Pate, minister, you were talking about your rationale in trying to create a system that is simple, fair, sound in integrity and ensures there are minimal, if not the elimination of any impediments.

My question is in regard to accessing records held by provinces and municipalities. Just speaking as a Canadian, when I’m trying to gather certain things for myself, even within my own city between health authorities, I know how complex it can be. Have you had such consultations and agreements with provinces and municipalities to eliminate such impediments and gaps? Also, will facilitation be offered to applicants having to do this? Even just trying to stick to one jurisdiction would be quite a cumbersome process.

Would you explain what consultations and/or agreements have been agreed to by the other jurisdictions and what that process would look like?

Mr. Goodale: Ms. Thompson has had some of the direct federal-provincial consultations.

Senator Martin: And municipal.

Mr. Goodale: Indeed. I would ask her to comment on that process. It is the typical Canadian experience that rarely is it just one jurisdiction involved, but Kathy can comment on the reaction we’ve had from other levels of government.

Ms. Thompson: Thank you, minister. We have raised this and briefed extensively to our provincial and territorial counterparts. In addition — and I think mention was made by Mr. Scromeda — the RCMP is used to having a process in place whereby they reach out to their municipal and provincial counterparts for coordination with respect to destruction, coordination or reproduction of records. They have a process already in place, and they will rely on that process.

In addition, we will rely on the National Parole Board to reach out to its extensive network of contacts, as will the Department of Justice. It will be a pan-departmental effort to reach out to all of our contacts.

Perhaps the RCMP can speak to the coordination it currently has with municipal and provincial police forces.

Senator Martin: Just to clarify, are you saying the coordination will be done by the RCMP or by the Parole Board rather than the applicant who has to go and do that?

Ms. Thompson: No. I was speaking with respect to the actual destruction of records. When the expungement decision has been made, a lot of the access will be done through the Parole Board of Canada. They have been funded to help support individuals coming forward who want to apply.

Mr. Churney spoke about how they’re processing to make sure they’re getting information out and to be able to provide some support and assistance to individuals. He talked about a how-to guide they’re going to produce, and we talked about making paper copies available so they’re readily accessible to individuals.

Mr. Goodale: Mr. Côté, do you have some further comments?

Serge Côté, Chief Superintendent, Director General, Canadian Criminal Real Time Identification Services, Specialized Policing Services, Royal Canadian Mounted Police: Thank you, minister. I could add a few remarks. Again, one area of your question, senator, was asking how potential applicants will get their hands on the information our colleagues at the Parole Board will require for the application.

Senator Martin: Yes.

Mr. Côté: While Ms. Thompson’s office has its own working groups at the FPT level, we have working groups at the law enforcement level. I will share that, as of last week, we’ve socialized the bill in terms of what it means for front-line policing, whether the RCMP detachments or local police forces.

As a matter of fact, as part of working with the PBC on the communications front, we have a communication already drafted. Upon this bill receiving Royal Assent, it will be communicated or sent to chiefs of police and RCMP divisions to give them a step-by-step process so if they have an applicant show up at their office, they know the expectations of how to help. That’s already in play.

In terms of timing, we’re waiting for the consultations to be completed and the bill to receive Royal Assent.

Senator Martin: May I ask one more question?

The Chair: I’m recognizing the time. I know the minister has to leave in two minutes.

Senator Martin: I will just ask for a request. My colleagues and I would like to know — when you talk about the process and the support you will give, I’m curious about the specifics. Will the applicant receive specific support, or is it just written materials they then have to follow? Sometimes that can be complex. I am curious about the specifics of the support that would be available.

Mr. Côté: I was speaking in terms of when an applicant shows up at a police station — I’m speaking from a police information perspective and not the courts in terms of what is expected from the detachment or local police service with respect to supporting this applicant. The communication will speak to the intent of the bill and the process.

I will turn over to my colleague at PBC in terms of their communication with the applicants. I think Mr. Churney spoke earlier in terms of the guide they’re putting in place. I’m not in a position to speak to that.

Mr. Churney: Yes. To reiterate, we would make the application as widely available as possible. We would make the how-to guide available in PDF format and hard copy. I mentioned PBC staff are available through our 1-800 telephone line to assist clients who have questions or concerns about where to go or how to access information. We will make ourselves available as people need us to be available.

The Chair: Thank you, senators, for your questions. Minister Goodale, thank you very much for coming and giving us time this morning. We’re going to pause briefly to allow Mr. Goodale time to leave, and then we’ll go on with the second round of questions with the government officials. Thank you.

Mr. Goodale: Thank you, Madam Chair. I’m glad to have this opportunity. Question Period beckons. I need to get there.

Thank you.

The Chair: We will resume the discussion of Bill C-66. We’ll start now with the second round.

[Translation]

Senator Cormier: I would like to come back to certain issues that were already partly addressed.

We heard a great deal about the lack of consultation during the drafting of this bill. The community was very clear in saying consultation was insufficient. Can you tell me how the community will be consulted going forward? What role will the Privy Council Office play in the LGBTQ2 file, on the issue, for example, of adding eligible offences to the schedule? Could you tell me more about the way such consultation will take place?

Ms. Thompson: Do you mean the consultations that have taken place or those that are currently planned?

Senator Cormier: The main issue is the future of the bill, and as Minister Goodale stated, its evolution with respect to future inclusion of other offences. How will you undertake that process, and what kind of consultations are you planning, within the context of this evolving bill?

Ms. Thompson: For the time being, as the minister mentioned, there are discussions under way in our department and at the Department of Justice as to how this bill will evolve. However, we haven’t yet started looking at consultations outside of the government. As for consultations that will take place after Bill C-66 is adopted, I think that Mr. Churney has already spoken about the way he has approached the Privy Council Office to find out who to contact to disseminate information to the broader community.

Senator Cormier: You spoke a lot about the application process. How do you plan to support applicants?

My second point is more of a thought, but it could also be a question. Given how this process is expected to work, the burden of proof will still lie with the victim rather than with the Crown. Will the Parole Board of Canada have the necessary means or resources to take care of the applications itself, rather than the victims having to take over these files? Why should applicants remain responsible when the parole board could help them to right these wrongs?

[English]

Mr. Churney: Thank you for the question. The Parole Board wishes to assist applicants to the extent that we can. One of the ways we’ve tried to prepare for the implementation of this bill is through training with our staff, not just on the technical aspects of the bill, but with respect to its relevance to the historic nature of the injustices.

Just this week, the staff at the Parole Board have begun training that’s being conducted by Egale, the national gay and lesbian advocacy organization. They have come in to do training with Parole Board staff to assist in helping them understand how this legislation fits into the historic nature of the injustices in question.

We wanted to take the time to help sensitize staff to why this legislation is so important and is perhaps somewhat different because of the spirit of the legislation and what it is that we’re trying to achieve through the expungement process.

That training spoke to an accounting of what occurred through the 1950s, 1960s, 1970s and 1980s to persons within the LGBTQ2 community and why this legislation ties directly into the PM’s apology. It was really for their sensitization so when they begin to receive applications they have an appreciation for whom the applicants are, what some of their stories might be and the importance of treating those applications with the understanding, respect and sensitivity that’s required.

That is something we’re thoughtful of. You're right in the support is day-to-day if someone phones the 1-800 line, but we also thought there was value in ensuring staff have a good appreciation for why this legislation is important.

Senator Andreychuk: I have a follow-up on that, Mr. Churney. The way the old pardon system worked and has evolved is going to be different than this expungement. This is to say it shouldn’t have happened at all.

In the other cases, it happened, but corrective measures were taken, whether it’s rehabilitation, et cetera.

Having worked in the old pardon system, I understand what the Parole Board looks for, et cetera. It’s a totally different judgment that goes into substance. Here it really shouldn’t be about substance; it’s about whether they can produce the evidence that they were convicted. That’s why I think deeming is a bit difficult, because those who have access can go to the Parole Board, and others who may have passed away, don’t have family, et cetera, their records will still remain. To me, that’s a fundamental injustice.

I prefer there be some process in the Parole Board. Are you convinced your training will be focusing in on different issues for this expungement than the other issues you deal with at the Parole Board?

Mr. Churney: Thank you for the question. You’re quite correct. The staff at the Parole Board will be familiar with this type of application process because there is some overlap with the pardons and records suspension process. But it is unique. The way the legislation is drafted here, the preponderance is to grant the expungement where applicants meet the three criteria. The level of discretion here, I would suggest, is lower than the case for the record suspension program, where we are trying to assess the measurable benefit to society and the person’s reintegration into the community, those kinds of things.

There really is not much discretion here. It’s a matter of meeting the three facts set out in the legislation with respect to consensual activity, one of the offences, et cetera. We are sensitive to that. The preponderance here is to grant the expungement, unless there is evidence to the contrary or clearly the applicant does not meet the criteria.

Senator Andreychuk: Ms. Thompson, it was raised by other witnesses, and certainly obvious in the bill, this issue of age of consent. We’re expunging backwards, but we’re using the age of 16. It leaves a discrepancy that heterosexual activity at that time was the age of 14, and there’s an obvious discrimination left in there. Will that be actionable by those in that category retroactively?

Ms. Thompson: Thank you for the questions. As the minister has indicated, the reason of government selected the age of 16 is because that is the lawful age today and one of the main pillars of the legislation is that these actions would now, today, be legal and were, as you know, historically unjust. The minister referenced the close-in-age defence. If, for example, an individual who was 14 at the time was involved in homosexual activity with another 15, 16, 17-year-old, they are still eligible because the age of consent defence applies. However, if a 14-year-old was involved with a 20-year-old, that would not be eligible, for the reasons that the minister spoke of with respect to an adult and a young adolescent.

Senator Andreychuk: That may still be actionable and something that needs to be considered going forward.

Ms. Thompson: As I said, if it was for individuals who were close in age, they would still be eligible. If the individual was 14 —

Senator Andreychuk: They’d have to come back some other means to get their records expunged, or close in.

Ms. Thompson: The close-in-age defence applies.

Senator Andreychuk: But that doesn’t cover —

Ms. Thompson: It’s five years, so for a 14-year-old, that’s a 19- or 20-year-old.

Senator Andreychuk: I’ll leave it at that for now, but I still think there’s a gap.

Senator Cordy: I’d like to talk to you for a few minutes about information sharing with foreign partners. Of course, we have a lot of partners around the world where we share information about convictions and so on, and this can be used for border security, crossing borders or immigration services. If a Canadian has been pardoned, my understanding is they’re given a document they can carry. If they’re crossing the border and they’re stopped, they can show this document.

What’s going to happen in this case, where the United States, our closest neighbour where most of the crossing of borders takes place? What happens if a Canadian whose convictions have been expunged because of this bill, and yet when they go to the border and the United States government still has it on record they have been convicted, what is their recourse? What can they do?

Ms. Thompson: Thank you for the question. We talked a little bit, senator, about the RCMP’s reach and information that can be shared across the country. It is a little bit different for international partners. There is better information sharing that exists.

Perhaps the RCMP could comment on that but it is, in my view, unlikely the RCMP would have some of these very historical records in their database. I think it’s not likely, but I will rely on the RCMP to respond.

Mr. Côté: Senator, I understand your question, you’re referring to a situation where, similar to maybe the pardon regime, where an individual shows up at the border and he’s told by U.S. authorities that they still have information with respect to that expungement —

Senator Cordy: Or they would know it had been expunged.

Mr. Côté: That’s right. Certainly there would be means, and maybe I’ll turn over to my colleague at PBC. Once the Parole Board informs the RCMP that such a conviction was expunged, based on their decision, our role is to remove that information from the national repository. Some of the information is accessible by U.S. authorities through sharing agreements over the years.

In this case, I would imagine this individual would be able to produce some kind of record that a decision has been rendered to maybe explain the gap. That is certainly what we see with respect to the pardon regime, but I would turn it over to Mr. Churney, who can perhaps expand on that.

Mr. Churney: Yes. I would say, similar to the pardon regime, when an expungement is granted, the individual would receive what we’re calling a certificate of expungement. If they present themselves at the border, that certificate could then be used to provide to U.S. authorities and demonstrate the expungement has occurred.

Senator Pate: Thanks again to all of you.

Mr. Churney, could you let us know what steps would need to be taken to make an automatic or an expungement process, a deemed expungement process, for Canada right now, if we decided to recommend something like that?

This question is probably for you, Mr. Scromeda. Is subsection 23(2) broad enough, once the cannabis legislation has passed, to allow for those who were previously criminalized to also be covered and have their records expunged?

Mr. Scromeda: The first question was to Mr. Churney. I’ll let him answer first.

Mr. Churney: I think that may play a little bit in part to the policy intent in the drafting behind how the government wishes to proceed. My quick answer on an automatic expungement would be that the Parole Board would need to have certain information available so we correctly identified the right person with the right convictions.

If we had their conviction record and correct personal identifiers. It could be a case of needing fingerprints, where there is a common name, for example. I think those would probably be the three basic things we would need to look at. I think Ms. Connidis might have some other information.

Angela Connidis, Director General, Crime Prevention, Corrections and Criminal Justice Directorate, Public Safety Canada: Thanks for the question, Senator Pate.

Automatic pardons were seriously considered when we looked at this. One of the difficulties is that the conviction record doesn’t talk about the age of the victim, and there’s a lot of concern the victim may have been a minor, the victim may still be alive, and that if we did everything automatically, we would be expunging records where you had a child victim and we wouldn’t know that.

Senator Pate: How will you deal with that if you have sworn statements?

Ms. Connidis: Often that information is in the court records. With sworn statements, we have to have proof from the person that they tried to access their court documents and the records and were not able to. As Mr. Churney mentioned earlier, the legislation is drafted to permit the expungement rather than not to permit it. Once it’s expunged, we can’t resurrect that record. However, there is the perjury provision. If subsequently it is found a person lied in their application, in their affidavit, they would be subject to perjury laws.

Senator Pate: It sounds like that information is all available and could be accessed through a deemed process.

Ms. Connidis: It’s difficult. We would not necessarily know which court the person was at, which municipality, which jurisdiction. There could be a lot of back and forth.

Senator Pate: Presumably some of the monies could be spent on that instead of hiring a bunch of people to have to help with the process. Sorry, that’s more a comment than a question.

Mr. Scromeda: As I think the senators can appreciate, I’m not in a position to offer legal advice in this committee, but I can talk in broad terms about your question. Your question was whether section 23 would be in the future capable of adding, for example, the marijuana possession offences to the schedule of this so expungement would be allowed.

My current understanding is that section is not envisioned as appropriate for that purpose. Currently I think the expungement or the marijuana offences have not been found unconstitutional, possession of marijuana. That matter did go before the Supreme Court. It was not found unconstitutional. I think marijuana offences and the legal reform we’re doing to them is of a different category. There may be other initiatives that come forward in the future that would deal with those. Currently, as drafted, you would have to ask yourself: Does this constitute a historical injustice on the level of the current offences? There would be some question about whether it would. I guess there could be some question as well as to whether, as section 23 requires, it no longer constitutes an offence because it still would be an offence, the illicit possession of marijuana. There would be a legal way to get marijuana in the future, but there still would be the question of illicit possession.

Those questions would have to be examined. My understanding is marijuana possession is considered in a different kind of league than the sort of offences we’re currently expunging under this bill.

Senator Ataullahjan: Those affected individuals, there might be a lot who are seen as citizens and who are not that computer-savvy. What steps has the Parole Board and other departments taken to see that these people will have access to the expungement process? If I don’t know how to use the Internet or I don’t have access to the Internet, how would that information get to me to see that the process is done effectively?

Mr. Churney: Thank you for the question. Again, I spoke earlier to the broad outreach planned upon Royal Assent of the bill in terms of not just reaching criminal justice partners but those in the community and particularly those in the LGBTQ2 community. I think probably we would also want to take a look at associations and organizations that work with the elderly, for example, another targeted community that I think we should be looking at.

This is a new business line for the Parole Board. Part of the early days will be a learning opportunity for us to understand how we can improve our level of service to the clientele. There will be a period of learning as well for us in terms of how we can best assist and what partnerships in the community we may need. I certainly take your point that not everyone will be computer-savvy and may need pen and paper to make their application. We will work with partners in the community, voluntary sector organizations, to do the best we can.

Senator Martin: I have a quick follow-up to Senator Cordy’s question about what would happen at the border. Would it be incumbent on the person going through to have some proof? Otherwise, each time they go through the border, they will be stopped and checked. Are you in the process of working with the American partners in terms of correcting all their records? Is that something that will be a next step?

Mr. Côté: Senator, thank you for the question. I can’t speak in terms of what the American authorities would do when they come across any Canadian subject. In a previous role, I was the officer in charge of the Windsor detachment, where I worked closely with the Americans. I would say, in terms of their assessment, every case is unique. I can’t speak on behalf of former American colleagues when I was on the border in terms of how they assess Canadians wishing to enter the United States.

I think Mr. Churney confirmed that upon a decision being made with respect to expungement, a document would be provided to the applicant to speak to that decision. That document, in the way I understood Mr. Churney’s answer, could be carried by the Canadian, which is similar to what’s happening with the current pardon regime.

Senator Martin: Are there plans or could this be discussed in terms of the agreement with the Americans? Could this be one of the items, along with others, brought to the table? Each time you’re stopped you’re treated quite differently. I was wondering about the after-effects of passage of the law.

Ms. Connidis: At a prior discussion, Parliamentary Secretary Holland was here, and he mentioned they would be having discussions with our American counterparts.

[Translation]

Senator Cormier: This is a comment rather than a question. First, I’d like to thank you for the work you have done concerning this important bill. You answered my question regarding the training to be provided to Parole Board of Canada staff very well. However, the burden of proof will still lie with the victim, and we know this is a very delicate situation.

My question remains the same. Could the Parole Board of Canada take over these files to help victims? I just wanted to bring this idea to your attention because these are very sensitive files and victims are not necessarily happy to have them become public. We can work with all sorts of associations, but this remains a real challenge. That was my rather general comment, but I’d like to thank you for the work that has been done. There is no doubt a lot that could be said about what happens next.

[English]

The Chair: Thank you all very much for your time today. We appreciate you being here with us and continuing the conversation after the minister had to leave.

Thank you, senators, for your questions today. We will adjourn. Next week we will continue the study of this bill.

(The committee adjourned.)