THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, February 15, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:14 p.m. [ET] 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.
[English]
The Chair: Good afternoon, all.
I would like to invite the senators who are present to introduce themselves.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Pate: Kim Pate from here on the unceded and unsurrendered territory of the Algonquin Anishinaabe.
Senator Tannas: Scott Tannas from Alberta.
Senator Batters: Denise Batters, Saskatchewan.
[Translation]
Senator Dupuis: Renée Dupuis, independent senator from The Laurentides, Quebec.
[English]
The Chair: Thank you all for being here. This is a unique honour for me to have a colleague senator in the hot seat. That said, I’d like to welcome for our first panel the sponsor of Bill S-212, Senator Kim Pate. Senator Pate, as you know, you will have five minutes to address the senators, followed by questions from us.
Hon. Kim Pate, sponsor of the bill: Thank you very much. It’s my pleasure to be here to talk about Bill S-212, which is a criminal record conviction expiry bill.
At the outset, I want to say thanks to the eagle eyes of Michaela and Julian, our wonderful analysts. They caught a typo for which I will be making an amendment when we get to clause by clause, but I will just let you know now that it is a numbering of section 61.1. It now reads 3. It should read 61.1(8). That is just to let you know that’s a typo. We will correct it during clause by clause, but I wanted to bring it to your attention. Our office and the law clerk send our apologies for missing that. We’re grateful to the analysts for finding it.
In terms of why this was brought forward, this is the third iteration of this bill, as you will know. We know that approximately 1 in 10 Canadians has a criminal record but far fewer actually seek relief, even though there have been pardons available for decades. One of the things we also know is that it directly impacts the ability of people to integrate into the community long term in terms of employment, volunteering, housing and, increasingly, even to be able to get into long-term care.
So it’s a concern that we allow folks to move forward.
One of the criticisms of previous iterations — and I thank Senator Batters, in particular, for ensuring we look at this — was that we were proposing that all summary conviction and all indictable offences be able to be subject to this. We’re still suggesting that, but they would be sequestered in different ways, similar to what the government actually proposed in Bill C-31, which died on the Order Paper: It would still be accessible for vulnerable sector checks. In fact, any issues around vulnerable sector checks would be obviated by that.
It would also allow folks who have records to have the assessment of their situation actually not rely on their means or their ability to navigate the application process as it currently stands. As you know, the government has — and Minister Mendicino very appropriately — and most everybody was very appreciative — reduced the fees. So one of the issues was that, in the process, this would be something that would not have a fee attached; it would be an automatic process and wouldn’t require an application. One of the two main impediments that people have raised is the fact that the application fee has become so exorbitant.
Those of you who watched “La facture” recently probably saw that the other issue that comes up is the number of companies that have proliferated, taking people’s money when they do have means and then not actually assisting them, with those people basically losing money. The cost is a huge issue.
We also know that there are many groups that have come out in support, women’s groups and anti-violence groups. In fact, the Fresh Start Coalition was started up specifically with the express purpose of achieving the objectives that the government said they would undertake when they came into power and then did not. I’m hoping we’ll hear from some of them.
We also know that it’s something that was on the government’s agenda, and I understand it might still be. We’re hopeful that this will assist the government in meeting its objectives and part of their party platform.
I also commend to you the information sheets that we have provided. We tried to provide a summary, because in five minutes it’s hard to do justice to the whole process. I believe each of you have available in both official languages an overview of the key features of the bill and some of the history.
For those of you who may be concerned that the wait times have changed, in 2012, the wait times were increased. The wait time of two years for summary convictions takes us back to when pardons were first introduced. They were increased to three years in the 1990s and then to five years in 2012. Now the waiting period for an offence prosecuted by indictment is 10 years. I have all kinds of testimonials if people are interested. Since we’ve tabled this bill, many people have called saying they’re waiting for this, that they could actually apply for a pardon now or they would be impacted directly if this happened, and that they’ve been out of work, not able to get education and the like because of it.
I look forward to your questions.
The Chair: Thank you for your self-discipline on the time, Senator Pate.
[Translation]
Senator Boisvenu: Welcome, Senator Pate.
My first question is about resources. Currently, people applying for a pardon go to the Parole Board of Canada. If your bill passes, the board will have to review all the records of criminals who will be released to determine whether they are subject to criminal record checks.
Have you confirmed with the board that they have the resources to do this work?
[English]
Senator Pate: That’s an excellent question, Senator Boisvenu.
I have. One of the challenges is the electronic system, but almost all records are already on the CPIC, Canadian Police Information Centre, system that feeds into the Criminal Records Act process and the repository. There are some issues with some summary conviction offences that may not be there. That would require some agreement between federal and provincial governments to agree to include them in the repository.
The assessment of some of the individuals I’ve spoken to is that many of those would be either so insignificant or potentially so old, if they weren’t on CPIC, they may not be relevant. Nevertheless, it’s something that could be done by the computer system that exists.
My understanding is, and from the board as well, while they would review if something was flagged, it would only be flagged if the person had come to the attention of authorities in between. Not necessarily just a new charge, but a new charge would definitely prevent moving forward.
[Translation]
Senator Boisvenu: Have you asked the board about the potential error rate, given that it will be responsible for assessing all of the cases without access to criminal records? Have you asked the board about the error rate that could occur if people are released without a criminal background check? Do you have any idea what the error rate might be?
[English]
Senator Pate: If it was an error rate, it would have to be after they had been flagged. If they were flagged and had not provided full information or there was some way — then there’s the mechanism to review that as well to bring it forward.
[Translation]
Senator Boisvenu: In Canada, those who commit crimes of a sexual nature get less than two years. That is the case in Quebec provincial prisons, where there are four times more sexual predators than in federal penitentiaries. The province decides when to release these people. In Quebec, they still release people after they have served one sixth of their sentence.
How will the connection be made between the federal government and the provinces, Quebec in particular, when these people are released with specific conditions? How will you make the connection to ensure that the National Pardon Centre, which will have to manage pardon applications... How is that complex link going to be made between the provinces and the federal government?
[English]
Senator Pate: If they’re in for a sexual offence as Schedule 1 or 2, they would have had fingerprints and be in the CPIC system. It wouldn’t require them actually sending documents from Quebec.
I do want to correct, though, a bit of misinformation. It’s been a long time since, and it’s very rare that, people are released at one sixth, particularly on sexual offences. But I do take your point, and we have had this discussion around this table a number of times, especially lately and especially in relation to your bill, Senator Boisvenu, that the issue of how seriously violence against women and children has been taken historically is a legitimate issue. The existence of a record doesn’t necessarily protect against that. In fact, because of that situation, many people don’t have records, plus the recidivism rate that the Parole Board has —
[Translation]
Senator Boisvenu: According to the bill, even repeat offenders will be eligible to have their records suspended. This is of great concern to me, especially with regard to crimes against children.
Statistics show that the recidivism rate for sexual predators — pedophiles — is very high after parole or during the waiting period for conditional release. In the case of pedophiles, for example, their criminal record is automatically suspended as soon as they finish their probation period, which lasts two or three years.
That said, I have two concerns. First, the recidivism rate after probation is very high among pedophiles. Second, police officers will no longer have access to records.
Basically, there are two systems that allow police to retrieve information from a license plate. In Quebec, it’s the Centre de renseignements policiers du Québec, or CRPQ, and federally, it’s the Canadian Police Information Centre, or CPIC.
In the case of criminals who receive a discharge or whose record is suspended, will the information related to their record be available in the police officer’s patrol car?
[English]
Senator Pate: Right now, what happens is that even with the record suspension, those records aren’t necessarily erased. They’re retained by the provincial or policing or court authorities, but there is an indication that they are to be sequestered.
[Translation]
Senator Boisvenu: My question is not about that.
I understand that the record is not erased. The RCMP manages pardon records. What I’m saying and what concerns me is that the recidivism rate for pedophiles, for one, is very high after probation, because they often don’t feel they’re being watched, so they tend to reoffend.
If police are patrolling around a school and they run the licence plate of an individual who has been convicted multiple times — because your bill states that repeat offenders can have their records suspended — that means that police officers will no longer have access to the individual’s criminal record because it is no longer available from the Canadian Police Information Centre, or CPIC. It’s kind of like the sexual predator registry: the only way to access the information is if a crime is committed. The police can search for the information. However, if no crime is committed, but police want to monitor a prowler in a school zone because they know he is a sexual predator or a repeat offender, for example, the information will no longer be accessible.
[English]
Senator Pate: If someone was a multiple recidivist, hypothetically recommitting at the rate you are suggesting, then they would never have access to this conviction expiry.
In fact, the recidivism rate for sexual offenders is relatively low. The data from the Parole Board and the Correctional —
[Translation]
Senator Boisvenu: That is not what your bill provides. Your bill says that repeat offenders can have their record suspended. That’s what your bill says, if I read it correctly.
[English]
Senator Pate: Only if it’s five years after the completion of their last sentence. The reality is that if someone has been coming to the attention of the police regularly, they would likely be flagged in this process because Schedules 1 and 2 are all likely to be reviewed.
You’re right, the bill doesn’t say they absolutely have to be, but they are flagged. Therefore, the likelihood is that they would be reviewed.
[Translation]
Senator Boisvenu: With respect to a sexual predator who has been pardoned or whose record has been expunged, under your bill, the question is clear. If a police officer runs their licence plate, will the information be available in the police car indicating that there is a high-risk offender in front of them, a sexual predator?
[English]
Senator Pate: Only if they have been granted conviction expiry. But because it’s flagged, it would be reviewed, and if there was behaviour still outstanding — One of the requirements is that people are engaged in lawful behaviour and that it wouldn’t bring the administration of justice into disrepute. Presumably, if the police were concerned about that, they would flag. It would not be proceeding. Then the individual has the ability to try and apply separately, in which case there would be a more thorough investigation.
So no, it wouldn’t happen automatically if someone is reoffending multiple times or even reoffending once. Even if they’ve come to the attention of the police for something different, they would be flagged.
Senator Jaffer: Senator Pate, thank you very much for your work on this issue. I’ve often heard you talk about people that have been really punished by this non-suspension of records. What I understand is that the current system of suspensions is incredibly problematic, especially for the most marginalized and disadvantaged in Canada. They don’t have the resources or the support to go through a tedious and punitive system and are stuck dealing with the stigma and hardship of having a criminal record. The current system makes it almost impossible for most people to realistically get a pardon.
Can you tell this committee about the people you have encountered who have faced barriers with the current system and how, in your experience, they would benefit from this bill?
Senator Pate: Certainly, as I mentioned at the beginning, a number of people have reached out even just since this bill has been tabled. I’ve spoken at times about the number of women I know in particular — as well as men — who have wanted to, for instance, have children, coach teams or volunteer in their schools.
One did testify, but not on this particular bill. She wanted to become an elevator operator, which would give her a great job. She had to go through all kinds of steps and get all kinds of people to sanction and support her before she could even get into school to get access to that. Then when it came to going to her son’s school — her son has special needs — the school required her to have a Vulnerable Sector Check. They didn’t require a Vulnerable Sector Check for her education, but they did want references. She was honest about her record, and so it took her some time to get into school. But when she went to her son’s school to volunteer, she couldn’t. The teacher even wanted her to volunteer. She was completely transparent with everybody about what her record was for. She sold drugs to actually pay for food and rent when that child was born. The teacher went to bat for her. The school went to bat, but she was still not eligible. She comes up for her tenth anniversary in another year or two, and then she’ll apply. However, now that child is out of school, and the benefit of having his mom be a personal support when there were no aid workers in the classroom was lost at a time when she didn’t have work and was trying to get her life back together. So she’s one example.
There is also a woman who is here at the university finishing her PhD. She had an injury and developed an addiction. I can’t say it better than Senator Campbell said it last night. She had an injury. She was on opioids. She became addicted. She ended up selling drugs. She was in an abusive relationship. She ended up in jail. In one year, she would be eligible for a conviction expiry if this bill comes into effect, but right now she has to wait another six years. Meanwhile, she’s in school and doing her education, but it will be difficult for her to move on and get a job after that if she still has the record.
Senator Clement: First of all, I would like to thank you for your work and for being here.
I’d like you to go further into what “La facture” talked about in terms of vulnerable people. Because it’s not just the cost of this application. It’s the actual process. When people are poor and vulnerable and from Black, racialized and Indigenous communities, there are all kinds of levels of barriers — not just financial. The longer they’re unable to contribute to society, the more likely they are, it would seem, to just stay in that circle of poverty and despair.
What data and research did you use to support the bill? Could you lean into how this impacts Black, racialized and Indigenous communities more than others — if it does?
Senator Pate: It’s the research that Correctional Service Canada, Public Safety and the Parole Board itself has. Most recently, we’ve got really recent research because of the cannabis legislation and the LGBTQ2S+ purge and how few people have actually availed themselves of that process for a number of reasons. One of those reasons is that it’s still an application process. Some whom I have spoken to and some who have spoken to the Parole Board folks have said that yes, the cost is gone, but there’s still the stigma. Some of them were convicted before the internet, and they fear that coming forward now will dredge it all up again. Some of them are grandmothers or grandfathers, and their own children may not even know they had records or that they were kicked out of the military for being gay or whatever.
For the racialized population, we know that the intersections of poverty and race are predominant in who is in prison. Yes, many of the people who “La facture” talked about have actually had some resources — not a lot — but it was disproportionately not racialized people who could even afford to put the fee in.
If someone is on welfare and trying to survive on social assistance, $50 could be half the grocery budget. So that’s out of reach. Many people don’t think of it because $50 still sounds pretty reasonable as opposed to the six-cent stamp it was when pardons first came in.
Many people don’t apply, and that disproportionately keeps them in the very poverty they are in. Even those who have a bit of money — I know another woman who had a fairly lengthy record years ago. She had been out of jail for 20 years and finally decided she wanted to get a passport and travel. She was born in the Netherlands. Her parents were Canadian and working there. She wanted to go back and visit family. To get the passport, she had to get a pardon. So she applied. She paid thousands of dollars to one of these services, because she couldn’t figure out how to use all of the documents. Then, at the very end, she was told that she probably owed a fine somewhere. No one could find it. It was a $100 fine nobody could account for. She was a kid in prison and everybody, including the Parole Board, agreed that the chances were that fine had been paid by time served. Everybody agreed. Anybody who knows the system said that if she had been in prison after that, there’s no way that fine wouldn’t have been dealt with. They wouldn’t release her without it being dealt with. In that context, she actually had to do an affidavit. They had to go back, and eventually the Parole Board was able to use its discretion. But it took almost five years to do that process. That was someone who had been clean and out and working in the community for 20 years — and is Indigenous.
The impact is that the more the intersections of poverty, race, gender and class are there, the more likely it is. Then, if you have ongoing mental health issues and challenges in the community, those are added to it. It is huge, yes.
Senator Clement: Have you had conversations with civil society about their reaction to this type of bill? We are always asked what is possible. Have you heard anything about what Canadians are thinking or understanding about this type of legislation?
Senator Pate: Thank you for asking. I am sorry for being so excited about your question that I almost interrupted you.
Yes, civil society is supportive, but they think that it does not go far enough. A number of folks thought it should go much further and should also deal with other things. It does not affect, for instance, the sex offender registry. It should go further. Some people thought there should be a right to disappear — basically have a requirement that the internet be scrubbed. That would be way beyond anything that is in this bill.
Civil society, particularly those who work in this area, both with victims and with people who have been convicted, has been very clear that providing an opportunity for someone to get on with their lives does not just help that person but avoids further victimization of families and community where that person might otherwise be able to contribute.
Senator Batters: Thank you, Senator Pate.
I have a number of questions. First, you have stated that this will not result in more lenient sentences, but we all know that an offender’s criminal history is often critical in sentencing decisions. Senator Boisvenu, in his second-reading speech, pointed to several decisions and legal opinions to this effect, including R. v. Angelillo where Justice Charron, former justice of the Supreme Court of Canada, wrote:
. . . the objectives of sentencing cannot be fully achieved unless the information needed to assess the circumstances, character and reputation of the accused is before the court.
. . . There is no doubt that the court may take prior convictions into account in determining the appropriate sentence. . . . The sentence imposed on a repeat offender may well be more severe, but this is not contrary to the offender’s right not to be punished again. From the standpoint of proportionality, the sentence imposed in such a case is merely a reflection of the individualized sentencing process.
So we can certainly understand difficulties that convicted offenders might have when it comes to housing and employment, but when it comes to a criminal conviction, especially of a serious offence, wouldn’t a record expiry erase critical information, possibly to the detriment of a victim?
Senator Pate: I think it would depend what the charge was. Justice Charron’s comments there are taken in the context of the question: Should the sentence be longer if there is a record? That is the general standard, yes.
In this situation, if it were shown that there was a reason that you could go back in, there are provisions that allow for you to go back in and revisit those records. I would think that most Crown prosecutors, as they do now, would have someone in their office google the name and things would pop up that, even if there were a record expiry, would be evident.
It is highly unlikely — the records or the data that Correctional Service Canada and the Parole Board have collected have shown that when someone has been in the community for a few years crime-free, their likelihood of recommitting another offence is the same as any one of us, anyone who has never been convicted of an offence.
Is there a chance that something might happen? Yes. I thought one of you might raise Graham James as an example, which was the impetus for the bill changes during the Harper era. This provision — or the way that we have framed the bill — if someone had access to a conviction expiry and did not disclose information — let’s say there was an investigation ongoing — that would be grounds to open the situation up again.
It is important to also look at the Federal Court and the Supreme Court of Canada’s decisions where they have talked about the importance of expungement as a way to assist people in moving on and to look at another principle of sentencing, which is that rehabilitation is a part of what we are hoping to happen as well.
Senator Batters: Senator Pate, something you just were saying as a part of your answer is that we would potentially be relying upon Crown prosecutors having to google information rather than having an appropriate criminal record system check. Wouldn’t it be more appropriate to have the correct information rather than having to rely upon the fact that a news article has been written about it or some information that someone could google? Wouldn’t that be a better way to do this?
Senator Pate: If that were the only tool available, absolutely. I was trying to use the example that if the unlikely happened and that it is 10 to 20 years after someone’s record has been expunged, then — and, remember, it is five years after the termination of their sentence. It can be a very long period between when someone finishes their sentence, or when they get out of prison, if they are in prison. So it can be a very long period.
Now it is 10 years; the same argument could be made of 10 years, as well.
Senator Batters: Another question I have is around proposed subsection 4(2) of your bill, dealing with no waiting period for record expiry for children. It says:
If the person referred to in subsection 3(1) was a child at the time when the offence was committed, the expiry of their record . . .
— there is no waiting period.
When it says “child,” I assume that that means under 18. So, would that apply even to someone who was, yes, perhaps under 18 at the time they committed the offence, however, for one reason or another — a very serious crime or something like that — they were sentenced as an adult? Would that apply in that situation as well under your bill?
Senator Pate: Not if they were sentenced as an adult, but if they were sentenced under the — it actually goes back to the way the system operated prior to the Young Offenders Act, under the Juvenile Delinquents Act, where the minute someone reached the age of majority, no matter what their record was, it was expunged.
The reason for that is to recognize that people often do things when they are kids that may not continue forward. We know that some of the ways the numbers have gone up, particularly for young Black and young Indigenous people, has been that they have sometimes relatively minor records, but an accumulation of records follows them into the adult system; then they attract a jail sentence. That is in the context where everyone used to be treated as a first-time offender from the juvenile to the adult system.
It is looking at that. It takes up from the recommendations or the move that was made in the Youth Criminal Justice Act to allow expungement.
Senator Batters: Perhaps you can do this later, but could you point me to the part where it actually makes a distinction between someone so that it shows me that this particular provision would not erase, with no waiting period, the record of someone who was under 18 but who had been sentenced as an adult?
Senator Pate: That would be under the previous Young Offenders Act.
Senator Batters: Okay. So this does not change that particular section?
Senator Pate: No.
Senator Batters: Okay. All right.
My last question on this round — and perhaps I would like to go on second round — is that there have been concerns raised that this is potentially, in effect, a reverse onus on the Parole Board to prove why an offender’s record should not be erased. Do you view this as a reverse onus, and do you see an increased risk to public safety, particularly in the case of a repeat, violent offender?
Senator Pate: No, I do not think it is a reverse onus at all.
This was put in because it was one of the recommendations that a number of bodies had made to streamline the process using current data capacities to say that individuals would be flagged. The only way they would come to the attention and require the Parole Board to review it is if they’ve been flagged. That will be some people. It could include people who have stops for things that are not criminal convictions, but it allows the board to review those cases so that, if there is some reason to be concerned about behaviour — as we know, people could have come to the attention but not necessarily been convicted. That does not mean there may not be a perceived risk. So it provides for that.
Senator Dalphond: Regarding the procedure, you propose to lower the ten-year period to a five-year period for the most serious convictions, and from five to two years for summary offences. What is the basis for these numbers?
Senator Pate: When the pardon process was first introduced, that was the time frame for them. It was two years for a summary conviction and five years for indictable. It was increased to three years for summary in the 1990s. It was increased from three years to five years for summary conviction in 2012 and from five years to ten years in 2012. Really, it is going back to the original and, in part, because it is such an impediment to be ten or five years respectively waiting for that process to be undertaken.
Senator Dalphond: Was it recommended by any group or organization, or are you just saying that you tried to revert to the original situation?
Senator Pate: It has been recommended by a number in civil society. I am trying to recall. The Fresh Start Coalition is one of the groups. I think they recommended a more liberal process than we have here. They are a coalition of 60 groups that include women’s groups, anti-violence groups, groups working with people coming out of prison and resettlement, academics and researchers as well.
Senator Dalphond: You referred to the previous government’s policy to increase the periods, but has the current government expressed any views on that?
Senator Pate: Yes. They did not reduce the wait time with Bill C-31, but they were proposing changes that would streamline the process. It died on the Order Paper. It was part of the government’s agenda coming in to revert to the pardon process, which would have meant going back to three and five years. So that position was taken. I will have to go back and check. I know the Canadian Bar Association has weighed in on this on occasion as well, but I don’t know recently. It would be the subgroup, the prison lawyers’ group, who did some work on that.
Senator Dalphond: You refer to the consensus in favour of a change attributed to the former Minister of Public Safety, Ralph Goodale. The quote here is an excerpt from what he said.
In his comments, did he say that we should revert back to this initial period? When you said that it was moved from two to three and then three to five, was it all under the same government?
Senator Pate: No; it wasn’t.
Senator Dalphond: I understand the Chrétien government increased it from two to three, and the Harper government increased it from three to five.
Senator Pate: And five to ten.
Senator Dalphond: And for the five to ten, that was also done by the Liberals or by the Conservatives?
Senator Pate: No, by the Conservative government.
Senator Dalphond: It remained at five when they increased from two to three?
Senator Pate: Yes.
When he was before the committee on the cannabis bill and the record expungement for cannabis, former Minister Goodale said before this committee that he would like to see a more streamlined process, but one of the challenges was that not everything was in the records. One of the changes to this bill, from the last version, was to say that if a record was to be counted in the criminal record, it needed to be in the CPIC system.
Senator Dalphond: I want to come back to the questions that Senator Boisvenu asked at the beginning, not about the procedures but about proposed sections 6 and 6.1, expunging and its effect.
I understand that if they find somebody’s fingerprint somewhere, they could go deeper in the system to retrieve things that were no longer retrievable. I understand the need for access to work, access to proper lodging and all of these things. I understand that, I think. What would be the impact of this on a police inquiry? “Fingerprints” assumes that a crime or something has been committed. You do fingerprinting and discover things and then make associations. Before that, however, there may be ways to prevent a crime from happening.
Will the police have access to these records or not? That is the line of questions from Senator Boisvenu, I think. I am interested to hear more about this.
Senator Pate: The model that we were trying to use is similar to what Bill C-31 would have done, which was introduced by Minister Blair when he was Minister of Public Safety but died on the Order Paper. It would have allowed for a sequestering for certain purposes, for instance, for a police investigation, for Schedules 1 and 2 in particular.
If there was an investigation — and, an investigation is not just done by fingerprints, as we know; there is intelligence — and it was found that someone had hidden any information, or had failed to disclose any information, that would be grounds to terminate the conviction expiry, if you will. That is one of the ways to try to address it.
Does that answer your question?
Senator Dalphond: Not really, because I understand there may be negative consequences. The fact is that there is a police inquiry going on and they are trying to identify a person or something.
Senator Boisvenu gave an example of someone who was parking next to a schoolyard. A teacher realizes that the person is parked there every day at the same time and calls the police to report it. The police car then comes along and the police check into their database. They will have the licence plate that will correspond to the name of the owner of the car. However, if the owner of the car has an expunged record, will it appear that he was convicted seven years ago for something related to sexual offences relative to children, for example?
Senator Pate: For sexual offences, yes, and related to children, most definitely.
Senator Dalphond: The police would have access to that right away, just by checking the licence plate?
Senator Pate: Yes. That is why there are still vulnerable record checks as well. It will show up. Actually, I take that back. I don’t know about police practices. I don’t know how checking a car, if it’s your car or if it’s a rental car, works. I don’t know the details of how the police would trace through a licence plate.
Having been involved in a different context around some of these sorts of cases — both in terms of being a parent, being around schools and as someone who has worked with folks convicted of these offences — the police would not likely run a licence plate. It is likely that they would speak to the person and want to have a meeting with them. If they refused to do that, that would also provide grounds for further investigation.
Senator Dalphond: Perhaps my time is up. In the next round, I would like to hear about proposed subsection 6.1(2) and the effect of the record expiration. It says that even the existence of the record may not be disclosed to any person. I don’t know if that means that even the police don’t have access to it. That is the sense of my question. I am sorry if I was not clear enough in my questions.
[Translation]
Senator Dupuis: Thank you for being here today, Senator Pate. I have a question regarding clause 7 of your bill, which deals with the order after review, subsection 4.1(1). The board must, on application, order the expiry of the applicant’s record if it is satisfied that the record expiry would sustain their rehabilitation in society as a law-abiding citizen. There are two conditions. The second condition is that it would not be likely to “bring the administration of justice into disrepute.” I understand the next part, section 4.1(4), which says that the applicant has the onus of satisfying the board that the record expiry would sustain their rehabilitation. In the case of the second condition, that it “would not bring the administration of justice into disrepute,” the criteria are unclear and are listed in subsection 4.1(5). There are three criteria that the board must consider in determining whether record expiry would bring the administration of justice into disrepute. Going back to the first condition, those criteria haven’t been established. Therefore, if someone wishes to make an application, how do they convince the board that the record expiry would sustain their rehabilitation?
In other words, criteria are provided to help make a decision about disregard for justice; criteria are provided to guide the board, but criteria are not provided to guide the individual who wants to apply. How would the person sustain their rehabilitation? Could you explain to me what that might look like, if you have had a chance to think about it? In other words, how do we help people who are going to apply, so that they have an idea of suggestions they need to make in order to get their record suspended? If they don’t, it won’t happen.
[English]
Senator Pate: This applies to individuals who would want to do so in advance. Let’s say they want to be able to go across the border. One of the issues raised by the Parole Board is the number of people — men who get out of prison who have an opportunity to do truck driving. They need to be able to cross the border. There would be situations like that where an individual might be able to apply, and it would be at the discretion of the board to determine. It would presumably be for a job. You’re raising a good point. It would be a good thing to perhaps flag to be put in regulations or a procedural process.
Right now, there are no clear guidelines for folks at all, but because we’re putting in a provision to allow for early application if, in fact, there were good reasons for that, we try to flag that it would be for the purposes of rehabilitation, so presumably it would be for treatment, for housing, for some of the things now that would be precluded by a record.
The most common issue that was raised, and part of the reason we put it in, was the number of times where parole officers, the police, everybody, were supportive of a person getting this specific job to support themselves and their family, but they can’t get it because they have a criminal record.
The Chair: Thank you.
My question, Senator Pate, is a fairly direct, factual one. In the documentation you provided, you identified the decline in applications as a result of the challenge of the process and cost, I take it. Can you give me an idea of the likelihood of success when people make applications? To what degree is it relatively pro forma? To what degree is it that those applications are rejected?
Senator Pate: I do have that. I’ve asked for more up-to-date information from the Parole Board.
The Chair: If it’s not at your fingertips, a note a bit later would be just fine.
Senator Pate: Yes, I apologize. I don’t want to misstate it. I did ask for that information, and I’m just looking.
Not surprisingly, the grant rate is relatively high, but it’s not a foregone conclusion. One of the main reasons for grants not happening, I’m advised, is things like fines — like the example I gave you of the woman with the $100 fine — fine payments being discovered, which will then relaunch the clock under the current process. Even if the error were an administrative error in the courthouse, or anywhere, so that the fine wasn’t registered or it was registered incorrectly — for example, it was registered as paid when it had only been partially paid — again, it would relaunch the clock.
I do know on the conviction expiry for — there are about 400-some, the last I checked, for marijuana offences, when they predicted there may be as many as 10,000 people eligible. For the expungement of any records of convictions for criminal offences involving consensual sexual activity with a same-sex partner, there were hundreds eligible, and I think seven applied. And they all got it.
The Chair: I’m less interested in how many and the decline and more interested in whether the application process is so highly approved that it’s a pro forma exercise. If the Parole Board has those categories and you are able to share that, that would be appreciated.
Senator Pate: I will check with them. I don’t know if they’re coming, but if they are, we can ask them for those as well. I’ll double-check that.
The Chair: Thank you.
[Translation]
Senator Boisvenu: I am very concerned about this bill. The senator tells us that she does not know much about police operations, yet this bill will greatly affect police operations as it relates to crime prevention.
Senator, currently, when a criminal receives a pardon, the information disappears from the police officers’ radar. So police officers, in their patrol car, no longer have access to the criminal’s history. All the information is recorded with the RCMP. The only way for a police officer to get background information on a criminal who has been pardoned is to contact the RCMP if, and only if, a crime has been committed. Otherwise, the police cannot ask questions about the RCMP file. It’s somewhat like the sexual predator registry: You can only ask questions related to the registry if a crime is committed in a specific area. My question is, how will the board be able to do checks to prevent a record from expiring without a criminal applying?
[English]
Senator Pate: It would be flagged if, in fact, there had been criminal involvement and certainly a new conviction, but it would be an automatic process at the fifth anniversary of the end of the sentence, that the individual could indicate that they didn’t have a record and there would be notification to other bodies through the legislation that, in fact, they needed to sequester or not release their files.
I need to go back. When I said I’m not familiar with what comes up when you check a licence plate, when I worked with the RCMP, it certainly is not true that they would not have access to that information. They need to indicate why they wanted access to that information, and then it will be provided.
As of late — and this may be what you’re referring to, Senator Boisvenu — is some police forces have been concerned about the release of information before there is a conviction or before there’s sufficient information, this issue particularly being raised by Indigenous and Black communities about the stigma that then attaches if it’s out there that they have been accused. The police have sometimes become more cautious about releasing names and instead have released descriptions in the ways that we know has happened. However, if it is something involving a risk to a child or an immediate risk to personal safety, then that information is being released.
Senator Batters: First of all, just a quick comment on Bill C-31, which you have referred to earlier, the federal government’s reform of the Criminal Records Act. Yes, that one died on the Order Paper, but it was tabled right at the end of that particular parliamentary session, tabled in June 2021. It was even in the last week, perhaps, of that particular legislative sitting, and then the election was called by the federal government that summer. It’s never been reintroduced, and now we’re a year and a half plus into this particular Parliament. I just wanted to make that point.
When Senator Clement was asking you an earlier question about the reaction of “civil society” and you replied that civil society has had a positive reaction, did you mean the Canadian general public? Because I’m just wondering what basis you have for thinking that the Canadian public would have a positive reaction to automatic free criminal record suspensions for serious criminals after quite a short period of time. Given what we’ve seen lately, I think quite a large portion of the Canadian public would actually have a very negative reaction to this, particularly with all the serious crime that we’ve seen throughout Canada, including recently and including in our very largest cities.
Senator Pate: By civil society I mean the groups that have formed together and are non-profit, as well as women’s groups, victims’ groups and people who are working with people coming out of prison, such as John Howard Society and Elizabeth Fry Societies as well —
Thank you for coming back to Bill C-31, because I did check the numbers. They were going to reduce from ten to five years and five to three as well.
Senator Batters: But they haven’t reintroduced it.
Senator Pate: They haven’t reintroduced it yet, that’s true.
Senator Batters: Is it in anyone’s mandate letter to reintroduce that?
Senator Pate: I know Minister Mendicino is interested in the conviction records review process and has indicated interest in an automatic process, but no, he hasn’t tabled it at this stage.
Senator Batters: When you said that women’s groups support this, which women’s groups? Aren’t they concerned about this situation?
Senator Pate: As you probably know, many of the women who are in prison have also been victims. These are women working with battered women and in shelters, groups like the Barbra Schlifer Clinic and Luke’s Place, some of the ones involved in addressing violence against women but also dealing with women who themselves have been both victimized and criminalized.
Senator Batters: So it’s particularly women’s groups that are dealing with those who have been convicted and not just victims, correct?
Senator Pate: But we heard from the office of Dr. Roebuck, the Federal Ombudsperson for Victims of Crime, about support for an enhanced criminal review process.
I think Public Safety did consultations in January 2017. At that time, they found that the general public — 9 out of 10 participants that they consulted with — were supportive of moving into a more streamlined process of cutting the fees. Again, to their credit, the government has cut the fees back to what they were prior to the 2012 increases, but they are still —
The Chair: I’m going to interrupt you there, Senator Pate. Some of that is in the information sheet as well. I want to make sure other senators have the opportunities to ask questions. We have three minutes left.
Senator Dalphond: Maybe you remember my questions, but there was no time to answer it.
Senator Pate: I’m sorry. I have forgotten.
Senator Dalphond: It was about the police’s ability to access a record in the course of an investigation.
Senator Pate: Yes. So if there was reason to believe that it had been hidden or there was some other issue, and it was a sexual offence, yes, there is an ability to go back and access it.
Of course, if it’s a very serious offence that carries a life sentence or an indeterminate sentence, that would never apply.
Senator Dalphond: I’m not sure we are speaking about the same things. You seem to be talking about after the fact. I am referring to prior to the fact, in order to prevent something.
Regardless, I have other questions. Don’t you think we should see a distinction between the most serious crimes and indictable offences and summary offences? Maybe we could have an automatic regime for summary offences but not for indictable offences. Maybe in those cases the person should apply. The person was charged with a more serious crime. The Crown decided to charge the person with an indictable offence rather than summary when it was a hybrid offence. So if the Crown has exercised its discretion to go for a higher way — an indictment instead of a summary conviction, because they felt it was a more serious issue — in such a case, should we consider that it’s better to leave it to the person to apply for it?
Senator Pate: As we saw when we were looking at mandatory minimum offences, the reality is that many of the individuals whom Senator Clement was discussing are individuals who are racialized and/or poor, and they may have been convicted in a context where they were responding to violence. Especially when we’re talking about women — Indigenous women, particularly — often they’re convicted of violence offences for their response to the violence first perpetrated against them.
Given the way the numbers are going — quite frankly, that was one of the big priorities and why it’s important to provide an opportunity for them to move on with their lives — the number that don’t have access to employment, housing or —
Two summers ago, I was dealing with a woman who had dementia, and she couldn’t get access to a seniors’ home.
The Chair: Thank you, Senator Pate, for your frank responses to the questions. You will be able to take your seat at the table for the next round.
I want to thank the senators for their disciplined questioning of our witnesses.
For our second panel, I’d like to welcome Dave Blackburn, former member of the Parole Board of Canada, who is here with us in person; and Professor Sheila Wildeman, associate professor at the Schulich School of Law at Dalhousie University, joining us via video conference. Professor, I know you are arriving with us on short notice. We appreciate you making yourself available this evening.
I will invite Mr. Blackburn to begin his presentation. You have five minutes each for presenting, to be followed by questions from senators.
[Translation]
Dave Blackburn, Former Member at Parole Board of Canada, as an individual: Mr. Chair, honourable senators, first of all, I would like to thank you for inviting me to your committee today to allow me, as an individual, to present some thoughts, issues and considerations with respect to the bill under consideration.
My name is Dave Blackburn and I am currently the Dean at the Université du Québec en Outaouais. Previously, I was a department head, professor and researcher in the field of mental health at the same university. I have a doctorate in social sciences with a specialization in the sociology of health. I also have a master’s degree in social work and a bachelor’s degree in criminology.
I am a former senior health services officer in the Canadian Armed Forces. I was deployed to Afghanistan in 2006, was responsible for mental health services in Europe from 2007 to 2011, and was the national manager of mental health education and training in the Canadian Forces.
However, it is because of my experience as a former commissioner in the Quebec office of the Parole Board of Canada from 2015 to 2018 that I am with you today.
During my tenure at the Parole Board, I helped review, analyze and make decisions about applications for criminal record suspensions, most notably during the 2016 to 2017 catch-up period.
From the outset, I must say that I have significant reservations about the bill before us, in terms of the substantial impact that its passage could have in Canadian society, in our communities, and for certain individuals, in this case victims of crime.
While I applaud the intent and foundation of the bill, which is to attempt to reduce the stigmatization of people with criminal records, particularly in the areas of housing and employability, I am compelled to recognize that this bill, in the form presented, will significantly weaken a link in the public protection net, which is made of the mosaic of measures in place to protect ordinary people, and therefore communities, and to ensure that people who have committed crimes make progress and achieve their social reintegration.
The criminal record suspension process is one link in the public protection net. It is certainly not perfect, but it is operational and functional.
In my humble opinion, the automatic suspension of criminal records after two or five years is problematic and will directly contribute to weakening the safety net and advocating a one-size-fits-all approach. It thwarts two essential notions in the process of successful and sustainable social reintegration: empowerment and accountability of individuals.
Social reintegration is an individual, multidimensional and long-term adaptation process. In all cases, this process does not end at the end of a sentence and does not de facto become fully realized two or five years later. A crime is the result of numerous contributing factors. The offender has to work on those factors and achieve self-improvement. This journey and fulfilment may take time depending on the individual and is directly influenced by the degree of empowerment and accountability.
By proposing the automatic expiry of criminal records, this bill eliminates this final step of empowerment and accountability for those who have committed a crime. Worse, the bill shifts the responsibility and burden of proof from the individual, who previously had to demonstrate that he or she has become a law-abiding citizen, to the Parole Board of Canada, which already has its hands full with conditional release cases. From a mechanical and operational point of view, it is already foreseeable that the passage of this bill will throw sand in the gears.
I have personally reviewed and ruled on many criminal record suspension applications, and the vast majority of the applications I have dealt with have been granted, as the person who had once committed a crime was able to demonstrate their journey, their reflections on their past actions and the impact of their actions on victims or society in general. In short, the person had been able to demonstrate accountability and empowerment for actions that had been committed, while also projecting into the future to ensure the sustainability of their social reintegration.
Why would Canada stop favouring a system that works properly? Should we not instead improve the process currently in place to facilitate access to criminal record suspensions at a reasonable cost?
In closing, I would be remiss if I did not mention the lack of consideration this bill gives to victims of crime. These victims are often scarred for life by what they were subjected to. The pain, the distress, the psychological or physical impacts do not end two or five years after the end of the sentence of the offender. They are often lifelong and create collateral victims. Victims absolutely must be at the heart of the criminal justice system, the parole process and, in this case, the criminal record suspension process.
This bill is, in my opinion, a missed opportunity to get it right and to see these women and men as victims first and as stakeholders in the process to hold offenders accountable and empower them.
Thank you for taking these few thoughts into consideration.
[English]
The Chair: Thank you Mr. Blackburn. Professor Wildeman, the floor is yours. Please go ahead.
Sheila Wildeman, Associate Professor, Schulich School of Law, as an individual: Thank you. I come to you from Nova Scotia, from Mi’kma’ki, the ancient and unceded territory of the Mi’kmaq. This is my first time appearing before a Senate committee. I’m grateful to have been called to provide testimony, albeit with but 24 hours’ notice. My apologies, therefore, if there are gaps in some of what I have to provide to you tonight. I see myself as introducing evidence and arguments that I expect will be coming from other witnesses along the way.
I’m a law professor at Dalhousie University, and I expect I was invited because of my work in the areas of administrative law, disability and law and prison law, as well as for my role as a co-chair with a community organization called East Coast Prison Justice Society. That’s a collective of individuals and organizations that are engaged in service and advocacy with and for prisoners. We deal with matters affecting fundamental human rights, including through a phone line that we have arranged with provincial jails through which we get reports and interact with folks in provincial jails. So we get reports about jail conditions. We’re publishing an annual report on that work in about one week’s time.
A lot of my work with the East Coast Prison Justice Society and the research I do engage with barriers and forms of exclusion that prisoners face upon exiting jail and federal prison and the kinds of deep challenges that reflect intersectional forms of oppression and types of intersectional oppression that we know well, on the evidence, characterize the vast majority of folks who are in our prisons and jails.
I want to bring three key points to your attention as you think about the merits of this bill. The first is the importance of centring intersectional substantive equality. I’m going to try to unpack that later in my remarks, but I am talking about centring human rights, the rule of law and the obligations of the state to remedy the kinds of deep systematic harms that have been experienced by the majority of folks who are in prisons and jails. I’m referring, in part, to the large numbers of Indigenous peoples in Canada’s prisons and jails. In some provinces, it’s the vast majority of folks who are in provincial jails, but there is a whole set of marginalized experiences and identities.
So centring intersectional substantive equality is my first point.
My second point goes to the risk considerations. I’m looking forward to engaging on some of those fine points that people have been raising and asking some of my own questions. But we have to be very careful to respond to concerns about risk, again, with attention to the rule of law and to the importance of evidence and evidence-based policy-making and law-making. We have to be very careful about putting in the hands of a whole range of folks who have access to criminal records information — employers, landlords and others — information that they then will use to inform their discretion in a manner that is fuelled by concerns about risk and very much ignorant of the facts and evidence.
So my second point is regarding risk.
My third point is that the bill arguably does not go far enough. In particular, I’d like you to think about the requirement of payment of fines imposed through criminal law sentence as a prerequisite to records expiry. I think that’s another barrier that we have a chance to remove.
As I am coming close to the end of my time, I want to tell you a story about my dad, who I called when I was invited to come here. I wanted him to remind me of a story that he used to tell about a bad thing that happened one summer when I was three years old. It was a bad thing that happened through my dad’s attempt to defend his family and assert his rule-following personality. It got him into a bit of trouble with the law. His neighbourhood, his friends, circled around him and guided him through the criminal law process for the brief time that he had that encounter. Everyone has mostly forgotten what it was all about. At some point, he received some kind of documentation that removed that from his record. I feel very much that my ability to sit here and address you today goes back to that pivotal moment when my father, because of his position and those who gathered around him to assist him in navigating the process, was able to lift the weight of that criminal sanction or charge, whatever it was. That, I think in a really concrete way, has enabled me to be with you here today. Thank you.
The Chair: Thank you, Professor Wildeman. We will begin questions now with Senator Pate, the sponsor of the bill.
Senator Pate: Professor Wildeman, you said that it does not go far enough. You have written a book, Habeas Corpus Unbound. In that book, you state that, demographically, imprisonment correlates with several indicia of social subordination. You mentioned indigeneity and racialization. I know that you have done a tremendous amount of work on mental health disability, poverty, homelessness, low education and, in particular, how this has impacted those who identify as women.
Could you talk a bit more about that and what you would recommend we do in terms of going further, given that is one of the comments that you have made? Also, what kind of services and resources do you know that exist now to assist people to deal with their record expungement process?
Ms. Wildeman: Sure. Thank you.
There is a lot there in your questions. Substantiating those intersectional forms of oppression that characterize folks involved in the criminal justice system and, in particular, folks who are incarcerated is something that has been done in a wide range of forums.
I tend to rely a fair bit on work that is lost. Fiona — her last name starts with “K.” I’m always mispronouncing it, but it is a very long name. She is an Ontarian who has done a lot of work on the kinds of barriers that prisoners face in accessing health care. Her work, and the work of the Office of the Correctional Investigator, has brought together a lot of substantiation around low income rates and high, high rates of mental health disability. In your remarks, you referred to Indigenous and Black Canadians being significantly overrepresented in both the federal and provincial carceral systems. In terms of provincial, in Nova Scotia in 2021-2022, while 6% of Nova Scotians were Indigenous, 15% of those remanded pretrial and 8% of those sentenced were Indigenous. In 2021-2022, African Nova Scotians made up 2% of the population but 10% of those in pretrial custody and 11% sentenced. To speed up and go beyond the substantiation and the statistics and so on, I would be happy to send some of that to senators after this, if you would like it.
I want to speak to the fines as one aspect. That is, the requirement of having paid fines as a precondition to expiry as a further burdening of the population who this bill is attempting to assist.
In one way, the bill is responsive to the kinds of barriers that have been documented by the John Howard Society. I believe that you may be hearing from a future witness, Dr. Samantha McAleese, who has written a thesis that goes into her empirical work documenting the various kinds of barriers that people have experienced in accessing the record suspension process. One of those barriers goes to literacy and the ability to navigate what has become a fairly complex, multi-staged process. That adds to pre-existing problems that people living in poverty experience every day.
One of the courses I teach is poverty law. One component of that, as we introduce students to the law and social assistance, we thematize as “Poverty: The administrative burden.” We make the point that people living in poverty must shoulder a back-breaking, bureaucratic burden of meeting their subsistence needs. That means documenting their lives down to the smallest details: all purchases, all gifts, and so on.
The administrative burden is a piece that I see this bill responding to through the automation, as it were, of record expiry. That is an incredibly important thing. As I say, I will not go through the evidence that I have seen, but McAleese and others have documented just how those complexities tend to function as barriers.
The fee payment as a precondition —
The Chair: Professor Wildeman, I must stop you there. We have a number of questioners. We anticipate Senator Pate to request a second round, if we get there.
Ms. Wildeman: Absolutely. I will put a pin in that and say that the requirement to pay those fees is something that will be an added burden to folks living in poverty.
The Chair: Thank you.
[Translation]
Senator Boisvenu: Welcome, Mr. Blackburn, and thank you for being with us this afternoon. I have two questions for you.
The first is about the new process that is in the bill. You explained very well that the burden of proof, which rests on the offender — who is responsible for making the application and proving that he or she has become a good citizen — would rest on the board, which would have to determine whether or not the expiry of the criminal record is problematic from a public safety standpoint.
As a former board member, do you think it is reasonable to believe that the board... Do you believe that the board will really be able to do all the necessary checks in real time, particularly with police forces, to ensure that the individual meets all the criteria specified in the law? Considering the heavy workload of the board members, do you really believe that the board will be able to have all the information in real time to make a good decision?
Mr. Blackburn: I can talk about the time I was there. Hypothetically, if human and financial resources are allocated to this and there is excellent coordination with the police forces, it could perhaps be done. In the context that I experienced, there is a delay between each of the actions in terms of obtaining information. At the time, the offender himself had to show evidence of his progress. A pre-analysis was done by the team in Ottawa that dealt with pardon and record suspension files, so that took a certain time. Then a board member had to study the file, and it also took some time. Not all board members can suspend criminal records, but only the ones who have received specific training — after a certain period of time — and who have worked on conditional release cases. There are a limited number of board members in each regional office who work on this type of file. Again, it takes time.
At the time, you would try, with all the information in hand, to process about 20 files in a seven and a half hour day, which was sometimes a heavy and difficult challenge. There are some very simple and clear files. There are others, as I mentioned, where a one-size-fits-all approach does not work, because there are many different types of files to look at.
A board member needs a certain time to analyze a file, unless there is a team that prepares the files for the board member and gives him or her a preliminary analysis. In addition, there is a need for coordination between the different police forces. We know very well that they do not necessarily all work in the same way. I work with police forces in the field of mental health; they have a shortage of manpower. For some police forces, it would take longer to get that information. Realistically, it could be very difficult. Based on my experience when I was there, I do not think it would be realistic.
Senator Boisvenu: My other question is this: The bill states that there is no possibility of revoking an application or deleting a criminal record if an offender reoffends after the expiry date. Knowing that individuals who might reoffend after that date will not be considered repeat offenders in the justice system, because they have been pardoned and have a clean record, could this not cause an increase in the recidivism rate for certain crimes? I am thinking especially of sexual predators, where the rate is already quite high.
Mr. Blackburn: For sex crimes, studies have shown this. In fact, just recently, Professor Lussier, from Université Laval, carried out a meta-analysis which showed that the recidivism rate for sex crimes is currently around 7%. Yes, recidivism does exist.
Of course, there are issues regarding that. In the past, the board had a more limited number of responsibilities when making a decision on cases. We were able to get information from the person applying, because they had to justify what they had done over the last few years to show that they wanted to rehabilitate themselves and that they really wanted to succeed in their social reintegration over a continuous period. If all the information related to the case is no longer there, in my opinion, this raises issues of public safety. As we know, some people do not necessarily return to the criminal justice system, and they may commit other offences or continue to favour a criminalized lifestyle.
Senator Boisvenu: Are you concerned about the error rate? The board will not be able to review all the files. Do you think the error rate will be high?
Mr. Blackburn: It is possible. It is plausible that there are mistakes, of course. Let us not forget that the priority cases for the board are conditional release cases. The main part of the work is done if the board has the time to study these files and assess them properly, if the whole mechanism is well set up. Otherwise, I find it difficult to see how the board, with 75 members in Canada and relatively limited teams in the regional offices and in Ottawa, can manage to put all this together properly so that we can study these files in real time, given the fact that there are other people who have a role to play in the process.
Senator Dalphond: Thank you to our participants, and thank you to those — and especially to the one — who accepted the invitation on short notice. My question is for Mr. Blackburn. You just mentioned that there is a 7% recidivism rate, according to metadata studies on sex offences. Is the analysis more refined and does it show us that the rate of recidivism is higher among those who have applied for a pardon and received one, particularly for offences of a sexual nature? Is it comparable?
Mr. Blackburn: I am unable to answer this question. Professor Lussier’s meta-analysis does not go that far. It was a study of the studies conducted over the last 70 or 80 years in Canada on 55,000 cases, and it aimed at assessing the evolution of the recidivism rate.
Senator Dalphond: My question could be worded differently. In your experience as a board member, have you denied applications after five years where the person was convicted of a sex offence, because you were concerned about recidivism? The 7% rate of recidivism is real. Have you looked through the records to try to identify recidivists?
Mr. Blackburn: Yes. I can tell you that there are some that have been denied. We process 20 files in one day. There may be different grounds for refusal. We used to ask specifically for evidence of the person’s positive contribution to society, and questioned lifestyles that were associated more so with criminal behaviour. Applicants had to share their progress and accept responsibility for their crimes. We also assessed the measures taken to manage the risks of recidivism.
Sometimes, in the document they provided for analysis, if certain sections were not filled out or filled out incorrectly, this raised red flags for the board members, who might come to a negative conclusion in that case. There are other cases that I recall where some people tried to get their record suspended, but their behaviour was by all appearances delinquent, and in that case, their application was denied. I would not say that the majority of cases were denied, but there was a certain percentage of the 20 files that were studied in a day.
Senator Dalphond: You say that there is a protection measure that leads to a denial. You said earlier that we need to propose some improvements to the current system. What improvements would you propose if you were in our shoes?
Mr. Blackburn: I know that one of the things that limits a person from making an application is the administrative burden of the process. It is not easy and for many, it requires help from external resources. There needs to be a simplified, clearer process and a person’s record needs to be taken into consideration from their level of education or the resources they have at their disposal to be able to follow the steps of the process. I am referring to financial resources. If the trial costs $600 or more and, in some cases, if fingerprints need to be provided, not everyone has access to that.
Senator Dalphond: Would you like it to be free?
Mr. Blackburn: Not necessarily free, but maybe a symbolic amount. The connection with the introduction is the whole issue of taking responsibility and empowerment. When people filled out the document, made progress and socially reintegrated into non-criminal activities, they were able to be introspective and put their progress on paper. The process helped them close the loop on their criminal past. There was value added to this type of procedure when the burden was on the offender.
[English]
Senator Batters: Mr. Blackburn, my question is for you.
Bill S-212 incorporates a flagging system for incidents in which a previously convicted sexual offender applies to work or volunteer with children or other vulnerable people. A record check would detect and flag records related to the sexual assault convictions. In your view, is this approach sufficient in dealing with those who have a sexual assault conviction? Why or why not?
[Translation]
Mr. Blackburn: Sex offences, especially involving children, are the most difficult files to deal with. As a board member, I have reviewed some. They are complex and difficult and even though there has been some improvement over the past few decades when it comes to treatment and programs, these are files where nothing is ever certain in the reintegration process.
In my opinion, the more protective measures we have for society, the more solid the safety net will be for ensuring that average Canadians and their children are protected. In this type of case in particular, I think more measures are better than not.
[English]
Senator Batters: To cover similar ground but go a little bit further, as Senator Dalphond was just saying, Senator Pate, who brought this bill forward, has told us that the application process for record suspension is onerous and costly. I think, but in your view, is it important to preserve some sort of application process? I think you were just saying that you think it is and that it is an important component here. If you could, tell us a little bit more about things that you have seen in the system and additional ways to improve it. You were speaking about some of those things, I wonder if you had anything else with more time to reflect.
[Translation]
Mr. Blackburn: In my view, as I mentioned to the senator, the application process is an extra step for the person working on their social reintegration. It allows the person to take a look at their situation, their life and where things stand compared to the past. As I was saying at the outset, social reintegration is multidimensional and occurs over a very long period of time. A series of factors lead a person to commit crime and adopt criminal behaviour. Sometimes family history plays a role and can take a lot of time to address. However, the possibilities are there.
I have seen success stories at the board and cases where people went through the process and steps of conditional release. These people are sent back to the community, take professional training or have a job, and are able to function very well in society. This part of their life, where they committed offences and crimes, is now part of their past.
I think the application process takes introspection and putting what happened into perspective, which helps close that chapter of an individual’s life all while considering the victims. I am talking about the victim, society, crime in general, but also victims who suffered deeper wrongs. In some cases, during the process, we even see work being done with the victims or reconciliation among the victims with respect to the crimes committed. In my opinion, this needs to continue to exist.
From a financial perspective, I find the cost to be very high. You have to understand that not everyone successfully goes through the parole process and fully reintegrates into society. In some cases, people do not have the means to pay the fees associated with the process. This creates barriers in some contexts. I believe that the application process needs to stay intact and the fees around the process need to be symbolic.
[English]
Senator Batters: Thank you for all of your work in this area. I appreciate it. Thank you for your valuable perspective today.
Senator Jaffer: Thank you to both witnesses for being here. I will start with you, Mr. Blackburn. I was very interested in what you said. I’m sure that you agree that the waiting time is a long time. Because you worked inside the system, do you think there are some cases that do not need to go through this extensive process, like summary offences or some offences that could be dealt with in the way that Senator Pate is saying? Then you would have more time to deal with the more serious cases. Do you see? What I am asking you is, what is the way out? This is not working, so what is the way out?
[Translation]
Mr. Blackburn: That’s a very good question. That was kind of my point at the outset with respect to the universal approach. The approach cannot be the same for everyone in this context.
Senator Jaffer: I agree. That is why I asked the question.
Mr. Blackburn: Some crimes are minor. For example, possession of marijuana in 1980, something a person would never be convicted of again, is quite different from cases where we are talking about assault or an offence involving sexual assault. For crimes that are considered to be less serious, less significant or for which the harm to society or the victim is less considerable, this five-year period may seem very long.
In the context of more serious crimes, I keep saying there needs to be an application that includes a plan and proof of what has been done to earn this privilege. Indeed, it is a privilege to have one’s record suspended. An approach that might be described as two-tier instead of a universal approach seems much more appropriate than putting all crimes, except for Schedule 1 crimes, in the same basket.
[English]
Senator Jaffer: Going back to my question, I used to be a criminal lawyer. Marijuana cases flooded the courts, and I am sure that they flooded your parole board also, so now that is out. Do you think that there are some cases in which this method could be used in front of Senator Pate’s bill?
[Translation]
Mr. Blackburn: Possibly for some crimes, as you mentioned, because there are many. It is no secret that among the applications for a pardon or record suspension that the board received, many had to do with possession of marijuana. The approach was very restrictive and criminalized. For that type of crime, which is no longer applicable today because the rules have changed, this might be an option worth considering.
[English]
Senator Jaffer: Mr. Blackburn, since you have come here and have really thought about this, if you have time, could you send something to the clerk to tell us what crimes or offences you think that Senator Pate’s bill could be used for, please?
I do not know the process of the Parole Board completely. You were saying that you would assess if somebody had a job. I heard you saying that. What I have heard is that it is very hard if you have a criminal record to get a job. How do we deal with this? It becomes a vicious circle. To get through the Parole Board process, you have to have a job, but you cannot get a job because you have a record. What do we do with that?
[Translation]
Mr. Blackburn: As mentioned in the previous comment, this may be part of a simpler approach and the fact that the person with a criminal record has a more intimate knowledge. Not everyone fills out an application. Before I came here, I was looking at the numbers on applications for record suspensions. The majority of applications for suspension, when I was a member of the board, came from people who had received provincial prison sentences of two years less a day. Generally, it was for less serious crimes.
Some of the information is definitely not getting to the people who received federal sentences because very few of them submit applications. In some cases, they exceeded the 5- or 10-year time limits. Better knowledge of the program and a simpler program would lead these people to apply for a record suspension. I think that is the key issue at this time.
The suspension applications may not be as consistent with optimal standards as they could be if the offenders had better knowledge of the program or if the process were simpler. We have to consider the fact that some criminals are not very educated and do not necessarily have access to help. Many organizations help them in getting a legal record suspended. However, that comes at a cost. These people may not be able to afford it. Perhaps some guidance could be provided to some people to help them get a favourable response if all the criteria are met.
Senator Jaffer: Thank you, Mr. Blackburn. I really appreciate your work.
[English]
Senator Clement: Thank you to both witnesses for being here and for your work. I will ask my questions and then get out of the way.
I have one question for each of you. In your understanding of the bill, if it were adopted, would there be any changes to the factors that the Parole Board would be required to consider before allowing someone’s record to expire? Does this bill change that in any way?
The second question is for Professor Wildeman. You talk about risk considerations and policy-making fuelled by risk. I worry about that too. If you could lean into that, policy-making fuelled by risk, and I would add fear, as opposed to fuelled by evidence-based data. If you could comment on that.
[Translation]
I thank you, Mr. Blackburn. I have often represented clients through the process of applying for a pardon. They served their time. They are in my office because they’ve taken responsibility and they want to work. They served their time, they worked on themselves, they are living in the community and they want to work to support and encourage their families. Often, the process is so difficult that they’ll tell me, “Ms. Clement, we’re so discouraged, we’re going to move on.” Another thing, I don’t know what it is, but I can tell you that there is a feeling of deep discouragement. I’m not sure what you would have to say about that.
[English]
The first question was for both of you. Then there was one question for Professor Wildeman and one question for Mr. Blackburn.
The Chair: Just to facilitate the process, Mr. Blackburn, could you respond to both of those, firstly the Parole Board criteria one and then this latter one about impediments in two minutes? Then, Professor Wildeman please respond firstly, again, to the question about Parole Board criteria and, secondly, to the question about risk.
[Translation]
Mr. Blackburn: As for the Parole Board criteria, the board currently has criteria in place to make the decision on whether to grant the record suspension or not. From my perspective, those criteria allow us to cover the entire record we have when it comes time to sit and make the decision. That whole set of information allows... Yes, there’s the document that the person fills out, there’s the police information, and there are other documents attached to all of that, as needed. So, right now, I believe there are criteria in place that allow for making informed decisions in line with the paramount consideration of the law, which is the protection of the public and social reintegration.
What I would say is that, changing this approach that works but has elements that make it difficult for people to navigate through all of this, to start the process and get a criminal record suspension, as you mentioned in your second question. I think that’s what needs to be changed, the way we work and how we make the process more agile, flexible and accessible, rather than changing the criteria currently in place that help board members make informed decisions with a view to ensuring the protection of the public and the reintegration of the individual.
[English]
The Chair: Thank you, Mr. Blackburn.
Professor Wildeman, on those two questions Senator Clement posed to you.
Ms. Wildeman: Thank you.
On the question of the factors for the board to consider, I want to take us back to the default, which is an automatic suspension of those records after a certain amount of time. In some regard, that’s saying that after that amount of time, we understand the sentence that was judicially imposed to have been proportionate and to have done its work. So that’s done.
I do think it’s important to be mindful of those residual questions where after that period, on one basis or another — and we could go through it — the board has some continuing carriage. I’m looking at proposed subsection 4(3), where it says:
The Board must, on application, order the expiry of the applicant’s record if it is satisfied the record expiry would sustain their rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.
If the board is satisfied on those grounds that the record expiry would sustain their rehabilitation, then they should order it. That’s something to put into context around evidence.
I’m looking at a document from the public safety minister, which is the Federal Framework to Reduce Recidivism, and that’s following from the Reduction of Recidivism Framework Act from 2021. That’s one that recognizes lack of access to the social determinants of health that are also, in the obverse, social determinants of criminalization, which is what I was trying to say earlier with reference to Fiona Kouyoumdjian and her research, which is so wonderful.
That document speaks to evidence about who it is that is incarcerated and the kinds of challenges they face reintegrating. Those are challenges around housing, access to housing, access to employment and access to other bases of social reintegration.
Drawing on that one document, it says:
. . . approximately 30% of those released from both federal and provincial institutions will face homelessness within the first two years of their release . . . being homeless increases the risk of offending and being released without stable and secure housing leads to a greater risk of recidivism.
The Chair: I need to interrupt you there, Professor Wildeman.
Ms. Wildeman: Sorry about that. Did I take too long? You get the point —
The Chair: Close enough. Thanks very much.
Senator Klyne: Thank you to the witnesses for their opening remarks and their active engagement.
My question is for Professor Wildeman. Professor Wildeman, your research focuses, to a certain extent, on social exclusion. Few things are more exclusionary than a criminal record. Having a record can prolong the process of or prevent people from achieving successful reintegration and lower the probability of civic engagement, getting a job, an apartment or even a volunteer position.
Would allowing criminal records to expire ease some of the social exclusion issues experienced by those trying to re-enter the community and move on with their lives?
Ms. Wildeman: Absolutely. There’s no question. We’re following on work that’s been done in the U.S. with records expiry legislation and other jurisdictions that have done similar things.
Back to this risk question. We have to question the connection between a criminal record and protection of society against risk. I don’t see that connection. I see a much deeper connection to what you just mentioned in terms of the existence of a criminal record and the imposition of barriers of many sorts that particularly affect people in those first few years following release but then continue to affect them. Some folks talk about a criminal record as a life sentence to poverty and one that affects not only the individual but their entire family in terms of economic resiliency. There have been studies done measuring the percentage of low-income folks following release from incarceration, the deep levels of unemployment, lack of access to education and housing, as I said, at a time when it’s roundly recognized that access to those social bases of resiliency and success is essential, both to avoiding recriminalization and recidivism and to contributing positively to the community.
To sum up, I do not see the connection between a criminal record and protection against risk. We have regimes like the dangerous offender regime and long-term offender regime. They have their own problems, but those are judicially imposed based on justification as opposed to a blanket assumption that folks who carry a criminal record are somehow presenting risk to employers and landlords and so on. Thank you for that question.
Senator Klyne: Thank you.
[Translation]
Senator Dupuis: I thank both our witnesses. Something that struck me in both your presentations, Mr. Blackburn and Professor Wildeman, was your emphasis on the notion of empowerment and taking responsibility through the parole process. I would like to begin by asking Professor Wildeman a question.
Can you go back to what you described to us as a story from your father’s life? What struck me in what you told us is that there is a kind of support system for the person who is struggling with the justice system. I don’t know whether it would be feasible for us to have that kind of... In other words, some people who are otherwise rehabilitated are not going to read the information that is out there about how to get a record suspended.
They have never, for whatever reason, had any problems getting a job. All of a sudden, they learn that they can no longer continue their contracts for skilled jobs... I’m talking about a specific case, a subcontractor who works for a federal government department building a provincial prison. Isn’t there something else we could put in place?
Mr. Blackburn, you mentioned community organizations that can provide support. Whatever the goal, whether it’s empowerment or support for the person who wants to be rehabilitated, isn’t there something that needs to be built into this system at some point? It’s not just about the money. Even if there were no fees, it doesn’t mean more people would apply. Isn’t there something else that needs to be done? I would like to bring up providing legal aid for people who, for all sorts of reasons, did not use the resources they could have used.
I have a more specific question for Professor Wildeman. What do you take from the circle of support that your father relied on during his brush with the law?
[English]
Ms. Wildeman: Thank you for that.
The Chair: A minute and a half each, if you could. Professor Wildeman first.
Ms. Wildeman: That’s a story about how, in an early stage of his life, you’re right, my father was able to find or be supported by what you might call a circle of natural supports; that is, neighbours who surrounded him.
I want to be very careful to take this back to my fundamental point. I do not see the value in criminal records extending beyond the period that’s set out in this bill. I see the automatic suspension to be an efficient use of resources.
It’s absolutely true that there are organizations like the Elizabeth Fry organization that here in Halifax runs clinics for folks to help them with criminal records suspensions. There are other organizations that do that, but I can’t help but think about the other ways that those resources could be used to assist people in finding housing or to provide them housing. We’re investing in what I would call a Kafkaesque bureaucratic system. What we are not asking is what is that actually adding in terms of value? What it is adding is a mechanism by which landlords, employers and others can apply what is effectively a discriminatory basis for denying people access to the kinds of social supports and determinants of well-being and community well-being that they need.
I’m just redirecting a bit. I so appreciate your question about circles of support, but my counter-question is, support for what?
The Chair: Thank you, Professor Wildeman.
[Translation]
Mr. Blackburn: There are other groups who have trouble with employability and housing. People with mental health issues come to mind. I work with them, I’ve done research with them. So, yes, that consideration is important. Connecting with community organizations is part of the solution.
I’ll give you a quick example. When I was in the Canadian Armed Forces, we had problems with the transition from military to civilian life. Our soldiers would leave the forces to go back to civilian life and then would be completely lost. They had been living a certain lifestyle for 5, 10, 20 or 25 years. What happened? We looked into the problem and were able to identify the soldiers’ needs when reintegrating into civilian life. Programs were put in place. These programs were actively promoted and publicized. Case managers talk about this during the exit interview. Thanks to several initiatives, very effective programs have been set up to ease the transition from military to civilian life. These programs are working. Today, we can see how the programs have benefited military members who return to society to work.
I think that, yes, it would be useful to develop a mechanism to promote knowledge of the record suspension process; however, this mechanism would have to be linked to community programs and community organizations that focus on social rehabilitation. All regions have a few of these. In Quebec, there is even an association that deals with this. One of the main issues is that it is underfunded. This association doesn’t have any money, so it has a hard time reaching the public it serves. Its people are literally fighting for the survival of their organization.
Investing in a community program and in community organizations, in my view, is also part of the solution to help those who are trying to reintegrate socially.
[English]
The Chair: Thank you, Mr. Blackburn. I know there are a number of others who have questions. I think it’s a compliment to our witnesses that you have inspired the engagement of all senators this afternoon, but our time is concluded now for this round of meetings.
I want to extend my thanks to Mr. Blackburn for coming in person here and to Professor Wildeman, who attended on such short notice to provide insights to the committee.
As a reminder to the committee, we will be meeting again tomorrow in the first hour to be considering and hearing from additional witnesses in relation to this bill. In the second hour, we will be spending time as a committee deliberating on the shape of the report that we’re required to produce with respect to Bill C-28. I look forward to seeing all of you late tomorrow morning.
Senator Dalphond sneaked in a little question — if I can call it that — which was really a suggestion particularly to you, Professor Wildeman, about whether you would have available the studies in relation to other jurisdictions to which you referred. If you do, and if you were able to share that with the committee, I think that would be a welcome addition to our work.
Once again, thank you both for your appearance today.
(The committee adjourned.)