THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, February 9, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:31 a.m. [ET] to study Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner), and to study Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good morning. I would ask senators to please introduce themselves, beginning on my right.
[English]
Senator Batters: Denise Batters, Saskatchewan.
Senator Pate: Kim Pate, from here, the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator Jaffer: Mobina Jaffer, British Columbia.
Senator Klyne: Marty Klyne, Saskatchewan.
Senator Dalphond: Pierre Dalphond, Quebec.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
The Chair: I’m Brent Cotter, senator from Saskatchewan and chair of the committee. Senators, this morning, our plan is to do a clause-by-clause consideration of Bill C-233, with respect to which we heard witnesses last evening. Before we begin, just a reminder that at any point in the process, if anyone has questions, please signal me or the clerk, and we’ll make sure that all have the same understanding of where we are in the process.
This will be a clause-by-clause consideration of Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner).
Is it agreed that the committee proceed to a clause-by-clause consideration of Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report? Senator Pate, you have proposed an observation.
Senator Pate: Yes, I have. I propose the observations in light of the conversations we’ve had both at committee and with the witnesses. Last night, I received a number of emails from women, in particular, who have faced similar situations where these circumstances have come to light and who stress the importance of the issues that I was raising and urged me to continue to push on those, so I felt an obligation.
As well, I had been part of consultations back in the 1990s, first initiated by the former justice minister Kim Campbell and continued by the former justice minister Allan Rock, that resulted in a number of recommendations. In light of the conversations we’ve had here before, and in light of the issues going on writ large, the fact that we keep looking at piecemeal pieces of legislation, that there are comprehensive sets of recommendations that have been made in the past to the government that the government has accepted that have not been implemented. I respectfully request that the observation, as circulated, be appended to recognize that reality, and in particular, point out the three primary government actions that have been committed to, starting in the 1990s with the 99 Federal Steps Toward an End to Violence Against Women, Calls for Justice in Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, and the current 100 recommendations of the National Action Plan to end gender-based violence.
Also appending a reminder that these are verbatim observations we’ve made on previous legislation. I think it bears repeating given the serious concern that violence against women poses that the entire committee has indicated is an issue, rather than continue the piecemeal approach and render observations.
The Chair: Thank you, Senator Pate.
Senator Dalphond: First I would like to thank my colleagues for review of the bill. I think it is a very special day. As you know, today is, unfortunately, the day that Keira passed away. I think it’s a fitting day for Keira’s Law to be recommended and sent back for third reading. On behalf of Dr. Kagan and Mr. Viater, I would like to thank the committee for their work and review, and for doing this much to have it sent back to the chamber.
In connection with the observations, I think it was said yesterday by the sponsors from the House of Commons who were here with the bill that they are mindful that these are legal steps and additional tools, but there is a more comprehensive and holistic approach that should be put in place to address the root cause of these problems. I think I’m comfortable, and I think you would as well, from the answers yesterday, that the government should also develop a strategy.
It’s also part of Senator Manning’s bill, who would like to have a framework to deal with this issue of domestic violence and intimate partner violence, including coercive control. I think this is an observation that fits with what’s going around and the various attempts to have a kind of more general approach to it. Thank you very much, Senator Pate.
The Chair: Thank you, Senator Dalphond.
Senator Batters: Thanks very much. Those who have watched this committee before probably won’t be surprised to hear me say these things. I think this bill has been important. It’s an important private member’s bill that I’ve advocated for over quite some time. Private members’ bills are, by virtue of what they can be, very targeted. They’re not able to deal with larger issues that require financial resources to be spent and that sort of thing, so they have to be more targeted.
As I indicated when we had the private member’s bill from Senator Boisvenu, I don’t think that these types of recommendations and an observation are appropriate for a private member’s bill. To me, it would be something that would be maybe be more appropriate to attach as an observation — some of these parts — to a government bill talking about how the Criminal Code has been amended in a piecemeal fashion. Those types of things I find dismissive of a private member’s bill, which has to be more targeted. There can be no doubt about the good intentions behind this one.
Also, parts of this observation, including indicating that we recommend that the government implement all outstanding — there’s a recommendation of 99 Federal Steps Toward an End to Violence Against Women, which seems to be what came out of a study from the 1990s. I don’t know, personally, what that study says. I don’t have it in front of me. I imagine I agree with much of it. I do not think it’s a good practice when we don’t even have it in front of us.
This was a short study we did for this particular private member’s bill. It was only two hours of witness testimony at committee.
I understand the very good intentions that Senator Pate has. I agree with much of it. I don’t think that this is the appropriate place to attach such an observation. I think it’s better dealt with in debate in the chamber to bring up these types of issues.
Considering that Senator Pate just said that it’s very similar to a previous observation that had been made by this committee, maybe we should wait for the government to respond to that one first before we attach a very similar one again.
The Chair: Thank you, Senator Batters.
Senator Jaffer: Thank you. I would like to thank Senator Pate for drafting these observations in such a short time. It was a mammoth task, and I thank her for that.
I follow what Senator Dalphond is saying and I support these observations.
I also want to remind colleagues that a number of times yesterday it was Ms. Saks who kept saying, “the government.” Also, we know that the government is setting up the status of women, is looking at this carefully. This is an appropriate time to send this message from the committee with these observations.
I suggest that we approve these observations.
[Translation]
Senator Clement: I support the bill, but I also support Senator Pate’s observations. This is truly a cry from the heart. We have been talking for decades about violence against women and violence against children, and still we have no clear answers for the victims.
I understand that bills are needed, and that we must continue to bring attention to this issue. However, it is not the only means for discussing this issue. There are so many other discussions we must have, so many other resources in which we must invest. I believe that Senator Pate’s observations address this cry from the heart. I would be satisfied if it were on the record.
[English]
Senator Dalphond: I wonder if Senator Pate could address the concerns raised by Senator Batters, which are valid concerns. At the end of the second paragraph, before the bullets, instead of saying, “by implementing all outstanding,” maybe “by considering the implementation of” because each specific recommendation — maybe some need to be adjusted to the new reality 20 or 30 years later.
If we could have an invitation to the government to consider the implementation of these things instead of calling for the immediate implementation of all outstanding recommendations, maybe some are no longer appropriate.
I must say, I don’t know these 99 steps. I don’t know if everybody around the table is familiar with their content. I understand Senator Batters is kind of saying, yes, I probably agree with most of that, but I would like to know what is in there first.
If we were making a more neutral reference by considering the implementation of, maybe that would be more appropriate. That’s my suggestion.
The Chair: Could I intervene? I think this is a legitimate point. It would be a bit more powerful if we said “by responding to” rather than “considering.” That might be a response saying this one is no longer relevant, or we did this one. At least it provides a degree of active momentum that we’re asking for.
Senator Pate: I did produce those 99 steps when we were looking at some previous legislation as well. We have actually had it before the committee before.
Relevant right now, in light of the discussions and The Globe and Mail headline today, is there are also issues around bail that are not in the 99 steps and the recommendations of the National Inquiry into Missing and Murdered Indigenous Women and Girls.
Bearing in mind what you are saying, one of the ways — without softening the end approach — might be to say, “by implementing outstanding” and take out “all,” which means that they would consider those that they have already acted on as opposed to “considering.”
My worry is they are already considering. They have accepted all of these. All three of these are actually documents the various governments have accepted, Conservative and Liberal, depending on which timing it was.
The Chair: I invite Senator Batters and Senator Dalphond to reflect on those.
Senator Batters: It still stands that we don’t have that. I don’t have it right now. I haven’t had an opportunity to review it. I’m sure that I do agree with most of these recommendations. I was in law school at that time, so it’s from a very long time ago. We should have it in front of us if we’re going to encourage the Government of Canada, as it said, to implement outstanding recommendations.
My goodness, I would hope that a lot of those things have been done. It might shock me at how few have been done. We should at least have it in front of us, or else I don’t think it’s a very good idea to attach such an observation. Maybe the government would not take us very seriously if we did that sort of thing. It’s in the Legal Committee.
The Chair: Senator Dalphond, do you want to dialogue around language?
Senator Dalphond: I thought your suggestion was a good one, by responding to all outstanding. If some have been addressed in the past, then you would be responding to those remaining; that’s called for in action from the government. I like your proposal.
The Chair: Certainly.
Senator Batters: I want to make the comment again, as I did when we dealt with this type of observation when we considered Senator Boisvenu’s private member’s bill, that we have just recently, this fall, had a couple of pieces of legislation that were large government — or at least Bill C-5 anyway — legislation that, in the opinion of some of us, actually potentially hurt women in these types of situations, in serious domestic violence situations, by allowing for house arrest for certain types of offences, including offences that could be indicators — as we were just hearing about, coercive control and those types of things, that included things like stalking and all of that sort of thing.
As I’ve voiced many times in the past, I’m not a fan of doing these kinds of observations when the Senate, as a whole, is passing legislation that actually takes contrary steps to some of the things that are voiced in these observations.
The Chair: Could I take it in the dialogue, Senator Batters is opposed to even this amendment, but would you accept it as a friendly amendment as change the word “implementing” to “responding to”?
Senator Pate: Would “respond with a view to implementing,” work? “Responding,” doesn’t really —
Senator Dalphond: If some have been shown 30 years later not to be proper recommendations, the government could respond to it and say no, it’s no longer the type of policy we should be pursuing. “Responding,” calls for a response. An explanation, if we don’t do it, it’s because it’s been proven to be wrong, or we have not acted or we are acting.
Senator Pate: I understand the point. Part of the point of putting that in there is to actually underscore the fact that these are not issues that any party was not aware of. We continue to do this incrementally when, in fact, there have been plans of action for approximately 30 years.
I’d like something a bit stronger. I would be prepared to just take out “all,” and say, “implement outstanding.” That allows the government to then respond and say —
The Chair: Thoughts on that, Senator Dalphond?
Senator Dalphond: I don’t think I have — I have several questions, but I don’t want to make a big case about it.
The Chair: Could I suggest or invite a semi-friendly amendment here that would then read on that line “violence by responding, with a view to implementing the outstanding”?
If there are no other comments, I will pose the question, then. Does the committee accept the observation posed here to be included in the report?
Senator Batters: On division.
The Chair: On division. Thank you.
We will continue, then.
Is it agreed that I report this bill, with observations, to the Senate?
[Technical difficulties]
Senators, that concludes our clause-by-clause consideration of Bill C-233.
We now move to Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.
Senators, for our first panel today, we welcome the ombudsperson for victims of crime, Benjamin Roebuck. Thank you for making yourself available slightly earlier than the time we had invited you. You have about five minutes to make your presentation and that will be followed by questions from senators.
Benjamin Roebuck, Federal Ombudsperson for Victims of Crime, Office of the Federal Ombudsperson for Victims of Crime: Thank you, honourable members of the committee. Thank you for inviting me back. I acknowledge my presence on the traditional unceded, unsurrendered territory of the Algonquin Anishinaabe people. As Federal Ombudsperson for Victims of Crime, I acknowledge the colonial violence imposed on Indigenous peoples and how this continues in the over-representation of Indigenous peoples in the criminal justice system and the disproportionate impact of criminal records. The systemic and economic barriers imposed by criminal records reinforce conditions that continue to strip Indigenous families of their resources, reallocating them to settlers.
Given that I recently appeared before the committee and explained the mandate of our office, I would like to provide some additional context for my comments today. When our office considers the impact of criminal justice legislation, we apply a GBA Plus lens that explores intersectionality, and we also adopt a victim-centred approach. I understand that the word “victim” is value-laden and problematic for many people who have experienced violence, so here I use it in a legal context of the criminal justice system. When I say victim-centred, it means that our starting point for legal analysis is with the person whose section 7 Charter rights to life, liberty and security of the person have been violated. It also means challenging our assumptions about the context and relationships that come to mind when we talk about victimization.
Offering a fair representation of the perspective of victims of crime is really challenging. Victims and survivors have different needs and want different things from the justice system. A common thread is how deeply those convictions are felt and a desire for respect, to be heard and not to be dismissed.
Criminal records introduce direct and indirect harm to many victims of crime. They are a blunt instrument applied to a wide range of people who come into contact with the justice system. As criminal record checks become more common in applications for employment, volunteer positions, education and housing, the harms continue to grow. I would like to highlight some of the unintended consequences on victims of crime.
Criminal records disproportionately affect racialized people in Canada, specifically people who are Indigenous or Black. Already, these groups are over-incarcerated, and criminal records extend the continuum of criminalization into their communities as they try to reintegrate. This introduces barriers to employment, housing and education, reinforcing the circumstances that contribute to victimization. These overlapping processes of exclusion are identified in government reports like The Review of the Roots of Youth Violence, by the government of Ontario, and Dr. Tanya Sharpe who conducts research with Black survivors of homicide victims at the University of Toronto has identified similar risk factors as social determinants of homicide within Black communities.
If we consider cases of intimate partner violence, the application of mandatory charge policies means that survivors of IPV can be charged in error, and in my own research with a sample of 150 survivors of IPV across Canada, women and men reported being arrested when they called the police for help. In 2015, Dr. Denise Hines published a study that called attention to legal and administrative aggression as a form of coercive and controlling behaviour in cases of IPV. This is when a partner manipulates the legal and administrative systems to extend their abuse through public institutions. Women and men in my research described instances of false accusations resulting in criminal records and jeopardizing custody of their children.
When police respond to incidents within a family, a conviction and criminal record can have negative consequences on victims who may depend on the perpetrator for economic support, and all members of the family can feel the stigma of a criminal record, including the victims. In Canada, people who are homeless or mentally ill experience high rates of victimization and criminalization, so many people can be affected. A 2015 survey of 130 human trafficking survivors in the U.S. found that 90% had been arrested or charged for incidents related to their exploitation. Police can also record non-conviction-related information, such as interactions for mental health, charges that were dropped or stayed and charges that can still be visible on a vulnerable record check after a not guilty finding in court. Nearly 4 million Canadians have a criminal record, and in 2020-2021, less than 10,000 applied for a record suspension or a pardon, and 17% of those were rejected at initial screening due to ineligibility or incomplete submissions.
Our office supports evidence-based prevention to tackle the root causes of victimization, and we want to ensure that victims and survivors are not subjected to additional pain and suffering through criminal records. We recommend a tiered approach. We support automatic expiry of summary convictions after two years. Rather than automatic expiry, we recommend that people with schedule 1 offences or repeat violent offences be required to apply after five years.
The second recommendation is to limit non-conviction records. Police records should not disclose personal information unrelated to criminal convictions. This will better protect and respect the privacy on mental health, the principle of innocent until proven guilty, and will limit harms associated with legal and administrative aggression.
Third, educate the public, communicate changes and clarify misconceptions, drawing on findings from Public Safety Canada’s consultations on automatic sequestering criminal records.
Finally, affirm the human right to housing. Specify that a criminal record or expired record cannot be grounds to deny access to the human right of housing. Removing barriers is necessary to help Canada address the housing and homelessness crisis and reduce street-level violence and victimization. Thank you again for your time.
The Chair: Thank you, Mr. Roebuck.
Senator Pate: Thank you very much, Mr. Roebuck, and thank you for appearing in person at such short notice.
I would like to pick up on where you just left off. As you know, the bill would — in addition to the provision you talked about in terms of summary conviction offences — also have a process where records of conviction would expire for indictable offences after five years. It wouldn’t be automatic if there had been any police involvement. I’m curious why you would recommend an application process as opposed to the flagging process that’s proposed by the legislation?
Mr. Roebuck: Yes, I would be supportive, in general, of indictable offences still being eligible for automatic record suspension after five years. With schedule 1 offences that might involve sexual crimes against children or where there is continued patterns of violent crime that have occurred, I feel like five years isn’t necessarily sufficient, particularly with crimes against children with multiple victims. Often we don’t know the full extent until more time has passed and we learn about more victims. Sometimes the recidivism, actually, in those cases, can occur over time more so than in some other cases. Not all sex offences have a lot of recidivism, but some do.
Senator Pate: One of the previous iterations of the bill did include those offences, but they are now excluded, for the most part, from the automatic process. There would have to be an application process in those. In that case, would that change your position on the provisions of the legislation?
Mr. Roebuck: Yes. I would agree with Senator Boisvenu that there is value in applying in those circumstances, and so I do support that tiered approach. I appreciate the provisions in the bill for a hearing or to be notified if there won’t be an automatic expiry.
Senator Pate: He also recommended the human right to housing, which I thought was an interesting recommendation. As you are no doubt aware, a number of human rights provisions across the country do not include protected provision being discrimination on the basis of a criminal record. Would you go further and recommend that it be part of the human rights legislation in provincial jurisdictions?
Mr. Roebuck: Absolutely. Canada is in the middle of a housing and homelessness crisis, and we have so many people who are dying from an overdose and from mental-health-related suicide on the streets and through incidents of violence. There is so much harm that happens. For myself, I’m a researcher in the area of homelessness, particularly with young people. I believe that the human right to housing is so vital. Many people with a criminal record even self-select themselves out of the process. They won’t apply for housing because they don’t want to go through the pain of being rejected, particularly the younger people who might be homeless. I think that the right to housing is essential.
Senator Dalphond: I know Senator Boisvenu is not here this week. He’s in Colorado — one of the parliamentary associations. I think they are visiting NORAD.
Senator Boisvenu had suggested the questions that are taken from his speech about this bill. He has criticized the bill for perhaps condoning and authorizing recidivism. He said:
Why would we eliminate the criminal record of an individual who continues to break the law? If we are lax in passing judgment on a repeat offender, then we are encouraging them to do it again.
Do you share these concerns from the perspective of the victims, especially?
Mr. Roebuck: My concern for victims of crime is really rooted in what research on victimization suggests contributes to continued victimization. I think the bill has a provision in it that if there is continued offending, there wouldn’t be automatic expiry and it would revert to that type of hearing that has already been in place. Therefore, I support that aspect of the bill, which I think is in line with what Senator Boisvenu has proposed.
I also recognize that the types of barriers that criminal records introduce for people who haven’t reoffended actually increase the likelihood of future offending and more victimization. So that’s where I take my position.
Senator Dalphond: About the housing crisis — what you are proposing here is that we make it illegal, for example, to refuse access to housing because of a criminal record —
Mr. Roebuck: Yes.
Senator Dalphond: — irrespective of the expungement, or bargain, or whatever? So you are saying we should make it clear that you cannot use a criminal record to refuse somebody housing.
Mr. Roebuck: In the bill, there is some nice clarity around the human right protection for a person who has had an expiry. I think if a person has had an expiry, there is no reason to be screened out of a housing process, particularly when there are very limited options available to people — especially those of lower incomes. We have seen a move toward more and more criminal record checks coming into the housing process. It’s been curbed in some provinces but not all, and it really does introduce barriers for people to actually get off the street, get out of contexts that contribute to victimization and crime and gain stability. So I think it’s a significant piece that is important to consider in public safety.
Senator Dalphond: But aren’t there some cases where maybe the record would be relevant? For example, in the case of sexual offenders that you don’t really want to have in the building where you have families.
Mr. Roebuck: Within the provisions of sexual offender registries, there are some requirements for notifying people who might have children, and I think that within existing mechanisms of law, some of those things can already be addressed. Therefore, there may be permissible circumstances where there is relevance to a specific record in a specific context. But overall, I don’t think it should be permissible grounds or a standard practice to be denying people the human right to housing because they have a record.
Senator Klyne: Welcome.
I want to pick up on where Senator Dalphond was but not focus specifically on recidivism. In Senator Boisvenu’s second-reading speech of this bill, he referenced the fact that serious criminal acts could potentially be erased from a person’s record. He also referenced the fact that the onus would no longer be on the convicted individual to prove they are worthy of having their record erased and instead the onus would be on the parole board to prove they are not worthy of having it erased. That aside is a bit of a marker.
I think that most people have some sympathy or some level of understanding for someone who is convicted of a relatively minor offence — for example a marijuana conviction — wanting to apply for a pardon to have their record erased so they can move on with their lives. However, there is likely less sympathy for the more serious offences, particularly from victims of crime — and there is the victim and then there are co-victims, which could be friends, family and such. In that regard, do you think this bill gives proper consideration to the rights of victims, co-victims and survivors? Specifically, does the suggested timeline to erase a criminal record — either two or five years, depending on the offence — take into account the fact that PTSD and the mental health issues that victims might face can last much longer than these two or five years? In this kind of context, you have cited some recommendations. But do you have any other concerns with the bill and further recommendations you might make?
Mr. Roebuck: I would have a concern in the case of a parole board not having a continued concern about the high risk of offending from a particular person. Likely if there is a way to flag that if they have a history of violence, that would be one of the risk factors already. I do think those need to be considered — that people need to apply and that the same process that’s already in effect would continue.
I want to come back to that idea of the victim-centred perspective to say that victims of crime are diverse. Many victims come from positions, particularly where they experience marginalization, and often end up with the impact of criminal records imposed on themselves. Dr. Hannah Scott from Ontario Tech University talks about how we tend to put more focus on violence that happens in public spaces that are single incidents with a stranger, and a lot of our public policy revolves around that. It’s actually more common that violence happens within family systems and within relationships where people know each other, and so the impact of the criminal justice system imposes very complex measures. We need to consider the protection rights of victims of crime and their privacy rights as well.
I agree that it’s unfortunate that the trauma can continue, and I think the criminal record is not the root. I think we need to make sure we have access to services and supports for victims of crime for a longer term than what is currently available.
Senator Klyne: Thank you.
Senator Batters: Mr. Roebuck, of course, you are the newly appointed federal ombudsman for victims of crime, and you’re an important witness for these types of bills because of the perspective you bring by virtue of that position. I ask you these questions, then, in light of that.
This bill, Bill S-212, provides for the clearing of the criminal records of criminals who commit crimes against the person after two or five years. The fact that a repeat offender would appear before a court with a clean criminal record is a revictimization for their previous victims and an injustice for the rights of victims.
Do you think this bill is contrary to the principles of the Canadian Victims Bill of Rights?
Mr. Roebuck: Thank you for that question. I have great respect for your work, and I will, as a point of order, just note that I’ve been appointed as “ombudsperson” rather than as “ombudsman.” I would have just as happily been appointed as “ombudslady,” but it’s finally adopting more neutral language.
I absolutely share concerns from people who would feel that there’s an injustice to somebody coming back into the system, which is why I’ve continued to say that with a history of repeat offending, I think there needs to be vetting of that process. It shouldn’t be automatic, particularly with violent crimes.
I do think that’s an important protection consideration for victims of crime and that it shouldn’t be automatic. I don’t think that this bill proposes anything that’s more punitive or less punitive when it comes to those types of cases, but I’ve had fairly limited time, I’d say, to study the bill.
Senator Batters: Well, if you wouldn’t mind, then, following this appearance, taking a little bit more time and particularly looking at that part of it to see what your perspective is on dealing with the Canadian Victims Bill of Rights.
As well, what you were saying about diverse Canadians and that sort of thing, of course, there are many occasions where diverse Canadians are often the victims, particularly in family situations, and, unrelated, they could very well be victims who have no criminal record and be simply the victims of crime. Yes, there are occasions where they might also be offenders, but I would venture a guess that many more people are only victims.
With that in mind, the criminal record law excludes from any suspension of record crimes listed in Schedule 1, which largely concerns serious sexual crimes committed against children. With this bill, sexual predators and traffickers could benefit from an automatic expiration of their criminal records.
What would your opinion be about the reaction of groups of victims of sexual assault and exploitation that you work with, if this bill were adopted?
Mr. Roebuck: I strongly support not allowing automatic expiration for Schedule 1 offences that would include sexual offences against children. I think those protection rights are so important, particularly for people who are vulnerable.
I think your point about victimization within communities that might be marginalized or racialized is really well founded, because we often talk about it like a criminalization problem without even considering the impact of victimization within these communities.
I think what we’re hearing is that a lot of that impact on victims is also hidden. We spoke recently with a professor who conducts research with Black women who experience partner violence and who talked about being afraid to call the police for support because of the fear of lethal violence.
There are a lot of barriers that are actually connected to the way the justice system functions that impact even access to justice for victims of crime, and I think those concerns are often not in the forefront when we have these conversations.
As ombudsperson, I feel that responsibility to bring forward some of those types of issues when some of the other concerns might be easier to identify.
Senator Batters: Thank you.
Senator Jaffer: Thank you very much for being here today.
The question of homelessness was brought up. I’m from Vancouver, and it’s a very big issue that we are handling in Vancouver. Housing is very limited.
Would you also work with the provincial bodies to change the code so that discrimination for housing is not — because housing is a provincial issue? You agree that you would also have to work with the provincial governments to change the code so that — national wouldn’t make the difference. It’s provincial. Would you agree with that?
Mr. Roebuck: Housing is a really interesting policy area that cuts across all three levels of government. There are roles in the federal government, like the Federal Housing Advocate or the Canadian Human Rights Commission, which affirmed the housing advocate’s report on recognizing housing as a human right in 2021.
I think there can be leadership from the federal government but that we have to respect the jurisdiction of provinces and how they continue to administer and bring those things into their own legislative frameworks.
Senator Jaffer: But you would agree there is a role for you to speak to the Human Rights Commissions, provincially as well, especially on homelessness?
Mr. Roebuck: My mandate is with federal issues —
Senator Jaffer: I know, victims.
Mr. Roebuck: — but yes, we certainly network and collaborate with colleagues at the provincial level and share information and perspectives while respecting the autonomy of those bodies to make their own decisions.
Senator Jaffer: I know you’ve been at your job for a short time, so it might be unfair that I ask this question of you. It has been my experience that often people who end up in prison are not very literate. These application forms are sometimes very difficult to fill out, as I’ve heard from people, and so they just leave it. Then they end up with not being able to get a proper job, not being able to get proper housing, and it’s a vicious circle.
Would you agree that it would help recidivism if Senator Pate’s bill were accepted, subject to what you have already said about violence?
Mr. Roebuck: I do. I think that the same conditions of exclusion and marginalization that are reinforced by criminal records also introduce the barriers to apply for a suspension or a pardon at the current moment. I don’t think that if it was easy that we would have 4 million Canadians with criminal records, and the impact is significant on Canadian society.
Senator Jaffer: And, of course, the backlog, as well. There’s a big backlog, and that just doesn’t help.
Given the associated costs with the current system of record suspension, there’s been discussion on how a no-cost approach could be beneficial for society in terms of reintegration for a person who has been convicted of an offence. In your opinion, would this bill help to lower recidivism rates?
Mr. Roebuck: I think it would have to be evaluated. I think if we look at the body of research on criminal justice that it would suggest that reducing those risk factors would reduce not just the recidivism of people who have previously offended but the actual structural risk factors that produce victimization within society.
Senator Jaffer: Thank you.
Senator Clement: I want to speak to Senator Jaffer’s point and then lean into something you said earlier to Senator Klyne.
I’m not a criminal defence lawyer; I’m a poverty law lawyer. I still work part time at the legal clinic in Cornwall. I have many times over the years gone through the application process for clients. It is incredibly complicated, and the reason a lot of my poor clients with literacy issues don’t deal with it is because they just can’t grapple with the extent of the work that it takes to go through that.
They also, at times, have become victims of these predatory companies that say they will assist and then charge on top of the pardon application fee that is paid to the government. Sometimes, by the time they come to me, they’re just in a mess of debt in addition to literacy and poverty. And they’re getting social assistance, and social assistance is saying, “Go and get a job.” They want to get a job. When they’re on social assistance, they’re very poorly treated. People who say people want to be on social assistance, no way. It’s not a great life because you’re not treated well. Most of the clients I’ve had have come because they are really desperate to get a job and they need that pardon application. I’ve been through that process many times, so I’m supportive. I will say that over and over again.
I want you to lean into what you do in your role, and I’m trying to understand it. Victims have been let down by the system over and over again, so when they see legislation like this, they’re not really into it. It’s very complicated to have nuanced conversations with Canadians. People have so much on the go, and we’re not always good at communicating clearly.
In your position representing victims and the victim community, how do you have these nuanced conversations? I know you’re new in the role and you do research and you’re supportive, to a certain extent, but there are many people in the community that you represent who are not going to be supportive and will never be supportive. How do you have that conversation? How do you consult with victims? If you could lean into that.
If you could also speak to the 4 million Canadians who have records and then you said a number. I think it was 10,000. If you could lean into that disparity between the number of people who have records and the number of people who have actually gone through the application and pardon process.
Mr. Roebuck: Thank you. A lot of great issues there. Maybe I’ll mention the last one because it’s the easiest. Of the 4 million criminal records in 2020-21, the Parole Board received fewer than 10,000 applications for record suspensions or pardons because both are still in play. It speaks to the accessibility of the process, the understanding of the process and the barriers that do exist for people with records.
As I said at the very beginning of my statement, it’s difficult to fairly represent the voices of victims and survivors. I’ve been listening to victims and survivors throughout my career in many different contexts, and it’s challenging because the interests of some often conflict with the interests of others. Particularly what often happens is that people who are caught in the more marginalized context where they experience victimization tend to be excluded when we talk about victims of crime, and the dual impact of victimization and the criminalization that also affects them somehow disappears.
Many victims have a family member who is in the justice system, and they’re trying to get information on the well-being of their family member and also trying to heal. These complexities are there for partner violence. It’s so important that people be protected and that they feel like the government cares. These issues are complex.
In the end, I’m actually supporting, I think, what the majority of Canadians would feel that when there’s serious offending, repeat offending or sexual violence against children, this needs to be vetted. It shouldn’t be automatic. That’s actually what we’re already doing, and I support that.
In cases with lower-level offending that clearly has systemic racism embedded within it, I think Canadians can also support the need for action on that. I do understand that it’s difficult. It’s painful for people because the criminal record is an extension of what has happened to the person, and the state often doesn’t consider the impacts that continue for people who experience violence or victimization, so it’s difficult.
Senator Clement: Merci.
The Chair: I have one or two questions, Mr. Roebuck, if I may. They mostly relate to the motivation for the maintenance of criminal records in the first place, what they achieve, whom they help and the like. You might reflect a little bit on that, but I also want to zero in on the recidivism side of the equation.
Years ago, when I worked in a justice ministry, the general understanding with respect to young offender offending was that 75% of young offenders never reoffended. It wasn’t as though we needed to keep track of them, for the most part. I don’t know what the story is here.
My question on recidivism, do we have a good sense — I think I may ask Senator Pate when she testifies to this question as well. Do we have a good sense of the recidivism patterns of offenders? Five years out, for example, is it a non-issue and we rarely see reoffending? Do you have information along those lines, or does your office deal with that? Do you have research on that?
Mr. Roebuck: We’ve looked at some of that data. I think the common tracking is within a two-year window. There are fewer studies looking at the longer trajectory. Certainly, there’s research around the world that has explored that.
I think for people who have more and more time without offending, the likelihood of recidivism does decrease. I think it’s scientifically supported that when people can demonstrate they have not been offending, there’s much less likelihood of victimization.
Some types of offences, like sexual violence against children that are outside of the family, particularly with young boys as victims, might have a higher recidivism rate, but that’s different than if we apply that type of thinking to sex offenders en masse because there’s such a difference.
There are particular types of victimization with higher long-term recidivism or recidivism that actually could increase later, down the road, that won’t be captured early on, which is why we’ve made the recommendation for careful consideration of Schedule 1 offences and the repeat violent offences.
We’re not opposed to criminal records. We believe it’s a helpful tool to protect Canadians and victims of crime, but when they’re no longer required and when they introduce barriers for people and produce conditions that create more victimization, then that’s where we want to take a stand.
The Chair: Thank you.
Senator Pate: Thank you very much for your very nuanced responses to many of the questions that have been raised.
I’d like to come back to the issue raised in terms of conviction for sexual assault. We just dealt with a bill before this talking about intimate partner violence. One of the challenges that a number of us who worked in this area have — I know you have as well for many years — is that violence against women and children historically has not been taken very seriously, particularly when it happens in the home. Yet the response post facto, once tragedies happen, is to try and then piecemeal figure out how to fix that system without interrogating how we haven’t set up the social, economic and health supports, including housing, which you mentioned in the first place.
I’m curious whether you have done any research or you know of research that might assist the committee with respect to those figures when it’s been some time since — I still work with women and families who are escaping violence, but it’s been some time since I’ve worked with men who have been convicted of sexual assault. At the time, the majority of those who were in prison — the number who were charged was minimal. The number convicted was even fewer. The number who went to prison was even fewer. When I’d go into the prisons, the majority there for sexual offences who hadn’t been traded away were Black and Indigenous men.
If you have data different from that, I think it would be extremely helpful for the committee, because that information helps to pinpoint the biases of the system that, in part, this legislation is trying to alleviate, which is that we know that there are many more people who engage in predatory behaviour who are not reported, for some of the reasons we’ve already heard about. If they are reported, charges aren’t laid. If charges are laid, they may be traded or pleaded away. So it’s a very small number that ends up in prison. Nevertheless, we have included that group as a group to be excluded.
Could you shed any more light on what information you have or any work that’s being done to try to figure out how to more seriously address this issue in a way that will actually keep people safe, not just — if you’ll pardon my language — be performative and look like we’re doing something to address the issue?
Mr. Roebuck: Yes, effective prevention is often a mix of early structural work and design interventions and reactive work that tries to dismantle ongoing problems. I think that this piece is part of that dismantling, because if we know that a particular population is overly criminalized, then the criminal records also reflect that systemic bias in terms of who in Canada has those records.
In the earlier process, I think we have work to do on social conditions and education and employment and those types of things that can actually create stability. There are very few programs that are evidence-based and evaluated to reduce partner violence. One of them that’s being used in schools is called “The Fourth R,” which teaches healthy relationships and conflict resolution in high schools, around Grade 9. It’s integrated in the health curriculum. It talks about how to communicate assertively rather than aggressively or passively. I think we need more investment in programs that are working on these healthy relationships.
It’s also important to recognize that everyone has the potential to experience partner violence and unhealthy relationships, so finding ways to acknowledge the experiences of 2SLGBTQ people who experience violence — that’s also visible, and there are places to get help. All of that matters.
There’s work to do on prevention, and there’s some interesting stuff happening at the education level in schools.
Senator Pate: The last that I knew of, well, one of the few recidivism or criminal record studies that I know of was done in 1990 in Alberta by Mr. Justice Cozzi. At that time, if I remember correctly, the number was 90% of Indigenous men, by the time they reach the age of 30, had criminal records. Do you know of any other studies like this that have been done? It’s the only one that I know of. We have done a literature search, but I don’t know of any others that have been done or are more recent.
Mr. Roebuck: If I think of some data around the same time, there were communities where Indigenous boys were more likely to be incarcerated than to graduate from high school. What we have seen in recent federal correctional statistics would be that we still have higher recidivism rates within those populations because of structural factors, but I think the overall recidivism rates, if I can recall from having reviewed that last night, would be somewhere between 25% and 35%. It could be lower, but it wouldn’t be as high as that.
I don’t know. I can’t speak to the number overall that would have a record, but I think it’s substantial.
Senator Pate: The last information that I have — and we’ve asked for updated information from the Parole Board — is that those released on federal parole for violent offences, the number who recommit violent offences is less than half of 1%. Do you have any other data besides that? We have asked for updated, but that’s the most recent data we have.
Mr. Roebuck: I don’t, but I am interested in that. As well, Canada hasn’t always done well with race-based data, and it’s so essential to understanding systemic issues. We’ll be requesting more race-based data around victimization from Statistics Canada in the coming weeks. I think those should be considered as well in the correctional statistics.
Senator Pate: Finally, last week you may have seen that Radio-Canada’s “La Facture” did an exposé of some of the types of companies that Senator Clement spoke about in terms of literally shakedowns of people to get support to apply for record suspension, pardon or — there are four different types, as you know now, as I’m sure you’re aware, of record issues that the Parole Board has to deal with. One of the challenges is that people are being victimized through that process. They’re being encouraged to come, pay money, and the services all then direct the people — basically give them a checklist of things they have to do and make them do their own work anyway. Have any of those people complained to the victim ombudsman’s office? Do you know?
Mr. Roebuck: Yes. We have an active complaint right now on that issue. Specific to non-conviction records, so somebody who is wrongfully accused in a very clear wrongful accusation scenario, who is found not guilty in court but continues to have ramifications on their record and is being caught with one of these agencies that is going back and forth trying to get this non-conviction information but maybe isn’t well positioned to do it. It’s an important area to consider, and that — I’d like to highlight that non-conviction records in terms of the rights of Canadians who have not been convicted.
Senator Pate: Thank you.
The Chair: Thank you, Mr. Roebuck. That concludes the questions from senators today. I want to thank you once again for attending and attending in an even more timely way at our request. That’s much appreciated. I don’t know whether, when you applied for this position, one of the requirements of the job was weekly visits with our committee, but it’s starting to feel like that.
Once again, thanks very much for appearing. We appreciate the advice you provided to us today.
That concludes our deliberations today. We will continue with the consideration of this bill next week, at our next meeting. Thank you, senators, for attending.
(The committee adjourned.)