THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, March 9, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:34 a.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.
[Translation]
The Chair: I would ask senators to introduce themselves starting at my left.
Senator Dalphond: Pierre Dalphond from Quebec.
Senator Clement: Bernadette Clement from Ontario. Welcome.
[English]
Senator Jaffer: Good morning. I’m Mobina Jaffer from British Columbia.
Senator Sorensen: Hello. I’m Karen Sorensen, province of Alberta.
The Chair: I’m Brett Cotter, senator from Saskatchewan and chair of the committee. I’d like to welcome you.
This morning, we continue our study of Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation. Senators, it’s a busy morning, so I’m going to invite us to limit our question time to four or five minutes, depending on whether we have a need for additional rounds. Let me begin by welcoming our witnesses today.
From the Canadian Association of Chiefs of Police, we welcome Francis Lanouette, Chief, and Katrina Swan, who are attending by video conference. From the Ontario Provincial Police, we have Kari Dart, Interim Deputy Commissioner, who is here in person. Welcome, Commissioner Dart. And from the Royal Canadian Mounted Police, we have Wade Oldford, Assistant Commissioner, Forensic Science and Identification Services, also in person — welcome, Assistant Commissioner Oldford — and Jennifer Gates-Flaherty, Director General, Canadian Criminal Real Time Identification Services. I hope I got that title right. We’ll have a second panel after approximately one hour.
As you’ve been advised, we’ll hear from you for five minutes each to launch the presentations and then we’ll follow up with questions from the senators. Perhaps we can go in the order that people were introduced, if that’s acceptable, which invites Chief Lanouette to begin.
[Translation]
Francis Lanouette, Chief, Canadian Association of Chiefs of Police: Good morning and thank you all for hosting us.
In general, the Canadian Association of Chiefs of Police is supportive of Bill S-212 as it seeks to avoid stigmatization, reduce the over-representation of visible minorities in the criminal justice system, and promote the reintegration of offenders into our community.
That being said, the bill needs to give more weight to public safety and the rights and safety of victims of these crimes. We need to ensure that we do not put certain categories of individuals at risk, particularly the vulnerable.
In addition, the definition of “vulnerable persons” must be expanded. As drafted, the bill is particularly focused on children. The definition should also include abused women, seniors, and people with physical or intellectual disabilities.
For public safety reasons, the Canadian Association of Chiefs of Police strongly encourages the exclusion of certain categories of offences from automatic expiry. In addition to the offences found in Schedule 1 and Schedule 2 of the Criminal Records Act, the list should be expanded to include exemptions for offences against vulnerable people, offences involving violence, or an offence involving a firearm. Such offences should remain on the offender’s record and not be eligible for suspension, expiry, or pardon.
To prevent tragedies, police services must be able to know an individual’s criminal history to identify trends or escalating behaviour, and to engage in proactive efforts, where appropriate, to ensure public safety.
That is why we appreciate the inclusion of the section regarding police access to criminal records. However, we call for broader access beyond the Canadian Police Information Centre.
In our view, there are a number of grey areas in the bill that need to be clarified. To address these topics, I invite my colleague Katrina Swan to address the committee.
[English]
Katrina Swan, Canadian Association of Chiefs of Police: Thank you. Good morning, honourable senators. I’m appearing before you today from Regina, Saskatchewan, located on Treaty 4 territory, the home of the nêhiyawak, Anihšināpēk, Dakota, Nakota, Lakota and the Métis nation. The Canadian Association of Chiefs of Police, CACP, would like to encourage the preservation of section 4(2) of the Criminal Records Act. Section 4(2) expressly prohibits eligibility for a pardon for a person convicted of a Schedule 1 offence for someone convicted of three indictable offences or for an offence that is subject to the maximum punishment of imprisonment for life and for which the person was sentenced to imprisonment of two years or more.
Schedule 1 offences are primarily sexual offences and offences against minors. In the current act, there are limited exceptions for this prohibition. In Bill S-212, however, section 4(2) has been replaced entirely, and there is no limit on the types of offences eligible for expiry. This causes significant concern for the CACP.
In 2022, Public Safety Canada engaged in consultations on an automated system for the sequestering of criminal records. The final report included an acknowledgement that serious offences, particularly those involving vulnerable people, would not be appropriate for automatic expiry. It also noted that in countries where automated systems exist, serious offences are excluded from automatic expiry.
The CACP also raises questions about the disclosure to police provisions found in proposed section 6.2. In the current system, police services rely upon their own records management systems to provide up-to-date and historical investigations involving offenders. Would the automatic expiry of a criminal record include a prohibition on police services from relying upon, accessing or sharing information with other police services about offenders with expired records? Would it require the automatic purging of police investigative records? Through the debate of this bill before the honourable senators, it appears as though the answer to this question remains unclear.
As previously mentioned, access to and sharing of this information is crucial for public and officer safety, for preventing tragedies, for identifying trends or escalating behaviour and for engaging in proactive efforts where appropriate.
In addition, the bill is silent on its retroactive application. One final question is related to the impact of the proposed amendments upon the Interpersonal Violence Disclosure Protocol, also known as Clare’s Law. Clare’s Law authorizes a police service to disclose certain risk-related information to a current or former intimate partner in cases where such information can assist them in making informed decisions about their safety.
In conclusion, while the CACP is generally supportive of Bill S-212, we do believe there are some limits that should be considered and some areas that require clarification. Thank you.
The Chair: Thank you very much.
Kari Dart, Interim Deputy Commissioner, Ontario Provincial Police: Good morning, chair and honourable senators of this committee. On behalf of the Ontario Provincial Police, or OPP, I would like to thank you for the opportunity to provide input into Bill S-212.
We understand that the purpose of this bill is to address justice and fairness in the criminal justice system. However, we have some concerns about the potential unintended consequences of this bill.
A 2019 Statistics Canada study indicates that more than 53,000 people were charged with a crime in a one-year period within Ontario. Approximately 46%, or 24,000 individuals, had at least one recontact with the police. The OPP is interested in the ways in which automatic record expiry may impact the police’s ability to protect the public from persistent, serious or violent offenders whose actions are more than just a mistake or a momentary lapse in judgment. Today, I will focus my remarks on four areas of interest: public safety, police investigation, police resources and victims of crime.
In relation to public safety, an offender’s previous criminal history is vitally important. It is used to inform risk of violence during threat assessment, as well as in identifying escalation of criminal behaviour, which is particularly important for crimes relating to harassment, domestic violence, gender-based violence, terrorism, human trafficking and gang-related violence. Vulnerable sector checks are designed to protect the most vulnerable members of our society, including children, seniors and those with physical or intellectual disabilities. The validity of these checks relies heavily on an individual’s known history of criminal behaviour. Existence of criminal record is also a significant factor in the application of a firearms licence. Without appropriate access to a fulsome criminal history, police will lack required information to make informed decisions that are critical for ensuring public and officer safety.
Second, automatic record expiry will have impacts on the police’s ability to investigate crime as well as the justice system’s ability to hold perpetrators accountable for their actions. Judicial authorizations are important tools for police to address serious crime and are granted based on a variety of factors, including history of known criminal activity. Lack of knowledge regarding past criminal behaviour will influence bail conditions and sentencing requirements that may not be proportional to the individual’s true history of criminal offences.
Third, I’d like to address the issue of police resources. The province holds records of conviction for offences that can only be proceeded by summary conviction. The OPP would need to establish processes to purge records relating to summary convictions. The expectation of police services to establish processes to inform the RCMP of ongoing investigations for the purposes of halting a record expiry is monumental and not practical due to the need to respect ongoing sensitive investigations. These are large and complex tasks which will require training, policies and human resources.
The last topic of consideration relates to the potential impact of this bill on victims. Each day, police interact with victims and see the impact that crime has on our communities. Through our victim specialist program, the OPP has heard definitively from victims that conviction and the subsequent record of conviction are important sources of resolution. Many victims reference criminal convictions and the associated records as crucial contributors to their healing process. In addition, many victims, particularly victims of crimes against persons, report to police for the purposes of preventing others from experiencing the harm they themselves have suffered. We therefore ask the committee to consider the ways in which victims’ rights and perspectives have been incorporated into this legislation.
In closing, I strongly believe that Canadians deserve to be safeguarded against serious and prolific offenders. If the committee continues to support Bill S-212, we strongly encourage limiting the scope of the bill to exclude eligibility of record expiry to any offender who commits crimes against persons, including financial crime.
On behalf of the OPP, I would once again like to thank you for the invitation to speak here today. Together, with a commitment to actioning meaningful and responsible legislative change, we can and must ensure appropriate weight is given to public safety concerns when considering automatic record expiry.
I welcome any questions you may have. Thank you. Meegwetch.
The Chair: Thank you.
Wade Oldford, Assistant Commissioner, Forensic Science and Identification Services, Royal Canadian Mounted Police: Good morning, Mr. Chair and honourable senators of the city. I’m joined today by Jennifer Gates-Flaherty, Director General of the Canadian Criminal Real Time Identification Services, or CCRTIS. It is our pleasure to be with you today to assist the committee’s study of Bill S-212.
To deliver on our mandate, the RCMP’s Canadian Criminal Real Time Identification Services is responsible for the management of criminal record information and maintaining the National Repository of Criminal Records, which is comprised of almost 5 million criminal records of conviction, non-conviction information and outstanding charges. These records are made available to partners for the purposes of criminal identification and investigation, immigration screening and to support security screening for all levels of government and the public. The National Repository of Criminal Records is fingerprint-based and contains information relating to hybrid and indictable offences, as the Identification of Criminals Act authorizes the taking of fingerprints for only these two types of offences.
Strictly summary offences are only included in the national repository if submitted as part of an occurrence also involving an indictable or hybrid offence. Provincial, territorial and municipal jurisdictions hold records of convictions for offences that can only be proceeded by summary conviction.
The RCMP’s Canadian Criminal Real Time Identification Services play a supporting role in the record suspension program. When the Parole Board of Canada grants a record suspension, the Canadian Criminal Real Time Identification Services are advised and take appropriate action to ensure that applicable records are set aside in the national repository and the National DNA Data Bank in accordance with federal legislation, including the Criminal Records Act, the Youth Criminal Justice Act, the Criminal Code and the Privacy Act.
A criminal record check of the national repository does not include pardon records that were set aside under the Criminal Records Act unless authorized by the Minister of Public Safety. However, a criminal record check that includes a search of provincial, territorial or municipal information holdings may still reflect a conviction, despite the record being subject to sequestration at the federal level.
Provincial, territorial and municipal stakeholders are not compelled under the Criminal Records Act to set aside records, although they do generally comply. As well, unlike the Youth Criminal Justice Act, which requires law enforcement partners to submit convictions for young persons to the National Repository of Criminal Records, there is no such requirement for adult conviction information in the Criminal Records Act. As such, local police records may contain criminal record information that has not been submitted to the national repository.
Mr. Chair and members of the committee, thank you for the opportunity to be with you today, and I welcome your questions.
The Chair: Thank you very much, commissioner.
[Translation]
Senator Boisvenu: I apologize for being late. I was at a press briefing this morning for another bill.
Welcome to the witnesses. I think you were very much needed at our committee, because we have some fairly technical questions for you.
My first question is for Mr. Oldford.
If an offender has been pardoned and a police officer is on patrol, in Quebec, the police officer will want to check the licence plate and will have access to the Quebec Police Information Centre, which is linked to the Canadian Police Information Centre, or CPIC. If the person has a criminal record, a red dot will appear and the police officer will simply click on that red dot to access the CPIC data.
For example, a person who has been pardoned, such as a sexual predator or pedophile, is loitering around a school. The police officer thinks the person is suspicious and looks at the licence plate. Will the officer have easy access to the individual’s criminal history from his patrol car, or will he have to make a special request to the RCMP to access the file?
[English]
Mr. Oldford: Thank you for the question.
Mr. Chair, in that particular case, because the record is pardoned, it will be set aside and will not be accessible by the police officer conducting the check. The way the process is structured, the criminal records are held within a national repository, which is stewarded by the Canadian Criminal Real Time Identification Services, and CPIC, the Canadian Police Information Centre, is simply the interface police officers would use to access the criminal information within the National Repository of Criminal Records.
In the particular instance, Mr. Senator, that you noted, the investigator requesting that information would not see that pardon record.
[Translation]
Senator Boisvenu: So, it is a bit like the sex offender registry in Quebec: The police officer does not have access to the file directly from his or her patrol car. Only one police officer per police station can have access to the national sex offender registry. He must make a special request to the RCMP to access the file.
Is it the same for a pardon? Does the police officer have to make a special request to the RCMP through his police station to have access to the file? The police officer will not have immediate access to the information and will not know if the individual is dangerous or not.
[English]
Mr. Oldford: Correct.
[Translation]
Senator Boisvenu: Yesterday, I saw some pretty disturbing statistics. Every year in Canada, about 15,000 people go through correctional services, and about 358,000 people go through provincial prisons. Most of these are very short sentences, sometimes served on weekends.
Does the RCMP have access to prison-related information when offenders are released?
[English]
Mr. Oldford: Mr. Senator, if I understood your question correctly, the information that would be within the National Repository of Criminal Records, if there were a pardon, would be set aside. Then that information, whether it be a front-line police officer —
[Translation]
Senator Boisvenu: I will ask my question again and try to make it clearer.
Currently, when an individual is released from a federal penitentiary, the RCMP is notified, and it then notifies police forces that the individual who has just been released from a penitentiary represents a risk. The RCMP notifies the police. However, when an individual is released from a provincial prison, there is no information, and it is not known when the individual will be released or where he will live.
[English]
Mr. Oldford: To the best of my understanding, they would not, not coming from a provincial institution.
[Translation]
Senator Boisvenu: Thank you very much.
Senator Dalphond: My question is for Mr. Lanouette.
The police officer conducting an investigation has access to Quebec Police Information Centre data. Why does he or she need access to the Canadian Police Information Centre to get other information? These are two different systems. What is in the first system?
Mr. Lanouette: The Quebec Police Information Centre has information related to the driver’s licence and event reports that have been recorded in the police action module.
The Canadian Police Information Centre is really the place where you find criminal records. That is why there is a second transaction. There is a bridge between the first system and the second.
Senator Dalphond: In the first system, driver’s licence information is fairly anonymous up to a certain point. It is known whether an individual has committed traffic offences. If there are criminal investigations going on, this will appear in the reports of events. Who provides the information? Each municipal police force and the Sûreté du Québec will automatically enter information into the system.
Mr. Lanouette: Exactly. Each police service feeds the police action module with reports on criminal offences over their territory. This system will contain information on victims, suspects and so on. However, we have no information on convictions. So, we have to go to the Canadian Police Information Centre to find out whether the individual has a criminal record or not. That is really the investigation component within the police action module.
Senator Dalphond: As president of the Canadian Association of Chiefs of Police, do you know if every province has a centralized system of this nature?
Mr. Lanouette: I am not the president of the Canadian Association of Chiefs of Police; I am the co-chair of a committee. I do not know if every province has a centralized system, senator.
[English]
Senator Dalphond: Maybe I should address my questions to the Deputy Commissioner of the OPP.
You understood what is happening in Quebec; they have these centralized things. Do you have an equivalent in Ontario where municipal police officers as well as OPP officers will fill in all the investigations or reports of events?
Ms. Dart: Yes, thank you for your question, senator.
I can confirm from an Ontario perspective that there are municipal police agencies, as well as the provincial police. The provincial police, we have and maintain our own database where we do maintain our record-keeping, so our officers are entering investigative information. I can confirm that, very similarly to Quebec, for us to access or submit anything in relation to a criminally charged person or criminal record, we access the federal system through CPIC. That is very similar to the Quebec model.
Senator Dalphond: The Toronto police officers or the Ottawa police officers — do they also provide information to the same system?
Ms. Dart: Correct.
Senator Dalphond: Then the OPP use it?
Ms. Dart: Within Ontario, we have a couple of different databases that different police agencies use. We can communicate with each other at a provincial level, but for federal information, it is through CPIC to access criminal records.
Senator Dalphond: Thank you.
Senator Jaffer: Can you repeat that? For federal offences, there is CPIC, and for provincial offences, there is not a centralized body; is that what you said?
Ms. Dart: Yes, we have a couple of different record-keeping processes within the province of Ontario.
For the OPP, we have a record management system — an RMS system — to which we submit all of our ongoing information, provincial offences as well as our daily investigative information.
If we need to access information about a criminally charged person or a criminal record, we access that information through CPIC, which is a federal responsibility for maintenance.
Senator Jaffer: So there are two systems.
Ms. Dart: Correct.
Senator Jaffer: Yesterday, that’s also what we were told by the Parole Board and the other witnesses.
Having two different systems, are we ever going to get to a centralized system? Is there work being done? I understood from them — and I’m not trying to misstate what they said — that they are working on it, but there are challenges. How far are we? Do you know what’s happening?
Ms. Dart: I’m afraid I’m not in a position to comment or provide any information about where they are at with their review of those systems. I can tell you, confidently, there is consistency within the federal system of police agencies accessing CPIC that is being managed by our partner, the RCMP. That is where the consistency occurs across Canada, if that helps answer your question.
Senator Jaffer: But not for the provinces.
Ms. Dart: The provinces access that consistently.
Senator Jaffer: I knew that if you wanted to check on a criminal record, you went to CPIC, but yesterday, I understood there is another system. You don’t automatically go to CPIC to get the information. Am I mistaken on that?
Ms. Dart: I’m not sure what you are speaking of. My apologies, senator.
Senator Jaffer: No, that’s not your responsibility.
Could any of you answer my question about how far we are from getting the centralized process going so that we can assist people who have gotten into trouble to get out of this terrible situation? There are so many complex forms. In my experience, a lot of people who have gone to prison are very vulnerable. They cannot read or write. There are many issues. They are in this circular thing.
If anybody knows this, you two know how difficult it is to get out of that cycle, because you deal with it every day. Maybe not you, but your colleagues do.
What’s the way out? How do we make it possible for people to get their records — to get to pardon?
Ms. Dart: Thank you for your question. I can confirm to you, senator, that as the police, our primary role and sense of responsibility is public safety and enforcing the law. The OPP does welcome exploration of all alternate strategies that would support the fair administration of justice as well as enhancing public safety. However, the essence of this conversation today is that whatever options we explore, they must be options that do not compromise public safety.
Senator Jaffer: Thank you for your answer. I can assure you that I don’t think any member of this committee is also not concerned about public safety, but thank you for your answer.
Senator Klyne: Welcome to our guests. My first question is for Chief Lanouette.
In the evidence you gave at the Standing Committee on the Status of Women meeting on March 4, 2022, you discussed the Canadian Association of Chiefs of Police’s expanded focus on domestic violence and coercive control. Can you please share your thoughts with this committee on whether Bill S-212 achieves the correct balance between the rights of victims of crime and offenders, particularly in the context of domestic violence? Would expiring records automatically unfairly impact the victims of domestic violence? Should, for example, victims of domestic violence be notified of when offenders’ records automatically expire?
[Translation]
Mr. Lanouette: As co-chair of the Crime Prevention, Community Safety and Well-being Committee, I had to speak out on coercive control. The CACP believes that, as the bill is currently written, there is indeed a risk to victims. The perpetrator can be a man or a woman, but unfortunately, women are most often victims of domestic violence. So, if a man has committed certain crimes of a lesser nature, for example harassing phone calls, which could constitute a form of coercive control. Or maybe it was surveillance on an ex-wife, for example.
By automatically deleting the information, the police will lose track of these offences, and by the same token, they will not be able to properly inform the victim — or the lady who calls the police because she is a victim of some form of domestic violence — about the risks associated with the individual. This is where we believe that the broader definition of vulnerable people should include the elderly, but also women or men who were victims of domestic violence.
[English]
Senator Klyne: Thank you. Chief Lanouette, alongside Ms. Katrina Swan, you discuss in your June 29, 2022, remarks, in a position statement on behalf of the association, that you believe that automatic record expiry would enhance offender reintegration. Can you discuss this in further detail, including how Bill S-212 would address the overrepresentation of Indigenous people and visible minorities in the justice system?
[Translation]
Mr. Lanouette: Indeed, we have taken a position, which is that we are generally in favour of the bill. We are well aware that there may currently be some difficulties with the pardon system for racialized people, Indigenous people or people who live in remote and isolated areas. It is difficult for these people to apply for a pardon, since it often requires them to go back and forth to the police, to check with the courts and so on. We are aware that the system is currently cumbersome for certain categories of people. Generally speaking, we are in favour of the automatic expiry. However, we do not want that rule to apply to all offences. In our opinion, offences related to violence should not be included in the automatic expiry.
[English]
Senator Clement: So many witnesses and so little time. I will focus my questions on Commissioner Oldford. I do want to thank you all for the work you’ve chosen to do as your careers. It is much appreciated.
When the Youth Criminal Justice Act came into force, the criminal legal system didn’t have a way of separating a person’s record from the active criminal records stored on file, and under the Young Offenders Act, youth criminal records were treated virtually identically to adult records. Twenty-one years later, the system for youth criminal records stored in CPIC is a robust, extremely successful automated system where there is access to that youth criminal record for a certain time, and after that it’s removed.
I would like to know how police systems, specifically the RCMP, were able to adapt to this change for youth records and how we can learn from those experiences. That’s question number 1.
Number 2 is around RCMP capacity. We’ve heard from you all that you manage a national database. I think you said it’s 5 million criminal records that you manage; it’s massive. So there is capacity there. What would you need to be able to manage the changes that Bill S-212 would bring about?
The third question is on the vulnerable records check. We know there are police checks and vulnerable checks that capture people who have had a record suspension for sexual offences and how we should talk about that, as well as an extra protection for public safety. So: one, two, three.
Mr. Oldford: Thank you, senator. First of all, with regard to the Youth Criminal Justice Act, if the legislation is clear, the criminal record can be set aside within a certain period of time or once a period of time has elapsed, and we can do that internally. That just would be the process and the program software we use to store the records.
To do that with an adult record, there may be a little more difficulty, depending on the conditions that are placed on it, for example, if there were a record scheduled to be expired and set aside if there were no ongoing criminal investigation. But if that were the case, how would we know that? As my colleague said, it would be difficult for information to be passed from police services with respect to an individual who may be part of an ongoing criminal investigation to help us make that decision.
First of all, the practicality of that would be very difficult, and, secondly, some of the investigations are sensitive in nature to begin with. Even the information itself is held closely within the police service.
I think there lies the difference between what we can do for the Youth Criminal Justice Act and how it would be a little more different, complicated and complex for an adult record suspension.
As to the capacity, I’m uncertain exactly how much more we would be impacted. We would probably be impacted to a certain extent, but most of the records that are being discussed as being set aside would be those summary conviction offences, which we would not keep anyway.
We would just keep the indictable and hybrid offences, and there are a small number of summary convictions that would fall in if they are part of a larger list of convictions. A lot of that capacity discussion would probably fall to the provincial and municipal police services doing that work because those would be the enforcement bodies that would hold that information.
The vulnerable records check, if there were a pardon for an individual who had a criminal record related to a sexual offence, then we flag those types of offences. Then, if that individual did reoffend and we could go back into the criminal records, which we would have set aside — and because of the flag, we would be able to look at that — then we would go to the Minister of Public Safety to receive permission as per the legislation for that record to be released or not, based on the totality of the situation.
Senator Batters: Thank you very much, all of you, for being here today. Interim Deputy Commissioner Dart of the Ontario Provincial Police, I wanted to give you more time because you made a number of important points about this bill in your opening statement about the impact on public safety; that criminal history is important to the police, especially about harassment, human trafficking and gang-related violence; that a criminal record is a significant factor in the application of a firearms licence; that this bill, Bill S-212, will influence bail conditions in a way that is not proportional to the actual risk of the perpetrator; and then also about the impact on victims and that convictions and records of convictions are important to the victims’ ability to move forward. I wanted to give you more time to be able to expand on some of those points.
Ms. Dart: Thank you, senator, for the opportunity to expand a little further. If I were to capitalize on that opportunity, I would share with the committee that you heard me talk about excluding crimes against persons, and we are spending a lot of time here — justifiably so — speaking of vulnerable persons in the sense of human trafficking, exploitation of children, sexual assaults.
One thing that we haven’t necessarily talked about is financial crime. That is also very much a crime against persons. Financial crime we know right now to be the highest-reported crime but also the most under-reported crime. It is important for us that when we are talking about vulnerability of victims, we recognize that that broad lens is important for public safety.
As it relates to investigations and our need to be informed as police, as the keepers of public safety, we take that role incredibly seriously and discharge our duties responsibly.
As for the importance of our having access to information to properly assess, for example, I mentioned threat assessments, so often as police we find ourselves evaluating prolific offenders in the sense of their known criminal activity and records, so that we are in a position to best assess and respond to the threat that they may pose in the community. It is critically important for us to have access to that information to be able to be informed and make our policing duty decisions very carefully in that regard.
It is our position that limiting such access to that information will impact our ability to achieve public safety.
Does that answer some of your questions?
Senator Batters: Thank you. For the RCMP witnesses, yesterday, our committee heard from Mr. Ian Broom, who is the Director General, Policy, Planning and Operations at the Parole Board of Canada. I asked him a question about the efficacy of the flagging system proposed in Bill S-212. He thought this would be a question better directed to the RCMP, so I’ll ask you.
Could you comment on the flagging system proposed in Bill S-212 for when a previously convicted sexual offender applies to work or volunteer with children or vulnerable adults? In your view, is this particular system that is set up in the bill an appropriate and sufficient approach to deal with those with a sexual assault conviction?
Mr. Oldford: Thank you for your question, senator. I think that’s perhaps a question best answered through the consultation and discussion across the country, as Public Safety Canada would have those discussions around Bill S-212.
For us, within the CCRTIS, the National Repository of Criminal Records, we could set up a system that could set up the flags as required. For the broader question, that’s a larger discussion.
Senator Batters: Given your decades of experience, what are the risks in having such a flagging system be the only system for dealing with convicted sexual offenders who apply to work with children or vulnerable adults? I’m sure you must have an ability to comment on that.
Mr. Oldford: Thank you. I would refer to my colleagues in our contract Indigenous policing area within the RCMP who would be responsible for the day-to-day ongoing criminal investigations to perhaps provide a response.
Senator Batters: Ms. Gates-Flaherty, did you have anything to add?
Jennifer Gates-Flaherty, Director General, Canadian Criminal Real Time Identification Services, Royal Canadian Mounted Police: Not at this time.
[Translation]
Senator Dupuis: Thank you to our witnesses for being here. I would like to come back to Deputy Commissioner Dart. What you said that I thought was important was the fourth point you made about victims.
I would like to know if you have any more specific data on the position of the victims with whom the Ontario police maintains relationships, because you said that there is a relationship with the victims on an individual basis. Have any consultations been held? Do you have any data? Have you researched groups that represent victims and have they presented their general position on the criminal record to you?
You said it provides additional safety for victims, but I would like to hear you again on that. I would also like to ask you about the economic exploitation of the elderly. There is data in Quebec on operations carried out by the Sûreté du Québec regarding the economic exploitation of the elderly. Can you tell us what you do with this data? How do you discuss these issues in Ontario? Thank you.
[English]
Ms. Dart: Thank you, senator. Specifically to the victims’ perspective and data within the Ontario Provincial Police, through the administration of a victim-centred approach team — which is relatively new to our organization, within the last few years — we are currently exploring utilization of victim needs assessment. Our police officers, through victim specialists, are having a much more intimate relationship with victims of crime in the sense of our hearing specifically what their needs are and our having those conversations with victims.
We take great pride in our ability to support victims of crimes navigate the system in the sense of the policing environment, as well as supporting them with accessing community-based support services as they have their journey through the criminal justice system.
Specifically to the data, that would be something I would have to take away, senator. If that is something you are interested in, I will take that back, speak with my team and then report back to the committee with some of the data specific to the OPP.
The second question you have, related to financial crime — specifically, our elder abuse concerns — we do know, through the Canadian Anti-Fraud Centre, that through “grandparent scams,” for example — that is exactly what they call it — our elders are incredibly vulnerable right now. They are being targeted. These offenders are prolific and they are repeat offenders in that sense. The level of victimization experienced by those in the financial crime sphere can be as intense as victimization with other types of crimes against persons.
It is important for me to ensure that this committee considers that. Thank you, senator, for your interest. It is an important thing for us to be mindful of as we are evaluating the opportunities within the bill.
As it relates to the data in that sense, the Canadian Anti-Fraud Centre is actively reporting that data publicly, and that is something we could access. I will go back to my team and we will bring forward additional data specific to that type of crime.
[Translation]
Senator Dupuis: I have one last question for any of the witnesses. What is the impact of Bill S-212 on police officers as individuals?
[English]
Ms. Dart: I can start. I won’t speak for my colleagues, but I know that was a consideration. You heard me mention in my opening comments the considerations to officers’ safety. Thank you, senator, for highlighting that.
This goes back to my earlier comments about our needing to make informed decisions. As we approach any offenders, investigations or situations, access to data is incredibly important to us, not only for the investigation but also in the spirit of officers’ safety. We have to be incredibly informed about the offender’s propensity for violence so that we are best prepared to approach that investigation or interaction in the safest manner, both for the individual as well as the officer. That was the context of my statement in that regard.
Mr. Oldford: My comments were elegantly summarized by my colleague.
[Translation]
Mr. Lanouette: I would say the same thing. I think that our colleague has summed up the situation well in terms of the importance for police officers in the field to know who they are dealing with.
[English]
The Chair: Colleagues, we are about to begin a second round. Given the enthusiasm that we and our witnesses have shown, my suggestion, with your consent, is that we might go an extra five minutes. Having said that, this will still limit each of the second-round folks to two minutes each, so I encourage you to ask concise questions in order to get concise answers.
[Translation]
Senator Boisvenu: My question is for the RCMP. For years, some provinces have passed legislation to allow women to learn about a new spouse’s criminal history if he shows signs of violence. More and more organizations that work with young people — I am thinking of scouts, daycares, minor hockey leagues — can now access an employee’s criminal history at the time of hiring.
So, if a daycare owner hires a man and goes to his local police station to get information on that man, but the man has been pardoned two years prior, would the daycare owner be able to access his criminal history information?
[English]
Mr. Oldford: Thank you for the question. Initially, as for access to that record that had been pardoned, you would not have access to it. However, if the pardon record had a flag because of some sexual nature to the offence or conviction, as I stated earlier, senator, we would identify that through the flag, but we would not be able to release it without the approval of the Minister of Public Safety.
[Translation]
Senator Boisvenu: So, it would be complex. Would a woman who is in a relationship with an abusive partner be able to access the criminal history of her new partner at the local police station?
[English]
Mr. Oldford: I’m not familiar, based on the legislation provincially or otherwise, on who would have access, for example, via Clare’s Law. I would suspect they would be reaching into the National Repository of Criminal Records to seek what information we hold and we would release what we could. As I mentioned earlier, if we had information that was set aside in the pardon that had a sexual nature to the conviction, then we would do what we would need to do to release that. With regard to what is released provincially, that would rely on the provincial legislation.
Senator Dalphond: My first question is to Commissioner Dart. You said there is the OPP central system where all the charges and pending investigations would be recorded. Would that also include summary convictions?
Ms. Dart: Yes.
Senator Dalphond: If it’s a charge by local police, do they have the obligation to enter that into your system? You mentioned that there are also other systems.
Ms. Dart: I do apologize, senator. I may not have been clear enough. The databases we possess are used for record-keeping and our investigative information. That is where all of our staff, our members, record that information.
Senator Dalphond: OPP only?
Ms. Dart: Correct. I’m not here to speak on the behalf of other municipal police agencies. However, I am aware that they also have record-keeping databases. For us to access the federal system for the accuracy of the information with respect to convictions of crime —
Senator Dalphond: I’m more concerned about pending charges or investigations that are going on. In Quebec, I understand that the municipal police will also fill in the provincial system, but there is no equivalent in Ontario. So it would be the OPP system, the Toronto police system, the Ottawa police system, yes?
Ms. Dart: Yes, we do have the ability to communicate with each other across systems.
Senator Dalphond: Do you have automatic access if you punch the right link?
Ms. Dart: I would love to give you a demonstration here today. It would probably provide some clarity, but our systems do speak to each other.
Senator Dalphond: Okay. And somebody referred to sensitive investigations. What does that mean? Is it that if it’s sensitive, they don’t want to share the information, so that won’t be recorded in the system?
Ms. Dart: Yes, I made the comment earlier about sharing sensitive information. When I had a preliminary examination of the proposed changes, one portion — I forget the actual section, sir — there was a reference that police services would be required to report to the RCMP of any suspected person for the purposes of flagging for declining a record expiry. My concern, being the OPP, is that that is monumental. We conduct thousands and thousands of criminal investigations.
Second, there are a number of investigations that are highly confidential, even within the police, when we categorize someone as a suspect. Even within our own systems and databases, we have to protect the integrity of that information and limit access until such time as we’re in a position to be able to share.
Does that help answer your question, sir?
Senator Dalphond: Yes. Thank you.
Senator Klyne: I have a couple of quick questions for Ms. Katrina Swan of the Canadian Association of Chiefs of Police. I’ll get rid of the preamble.
You have mentioned that one of the pitfalls of Bill S-212 is that people legally changing their names could lead to their names not being matched with existing records, in fact, when it is the offender in question. Can you please discuss in further detail — we have limited time — how Canada and the provinces in Bill S-212 could better address this issue?
Ms. Swan: Thank you for the question, senator. I don’t know that I have a specific answer to that question. If I could just touch a little bit on the previous question, I can inform you that, in Saskatchewan, unless there’s an information-sharing agreement that goes on between the services, we don’t have interagency access to each other’s databases. Unless the information is in the Canadian Police Information Centre and unless the offender is identified through fingerprints, we may never know whether or not the name has been changed. The lack of having the fingerprints could potentially pose a problem.
Senator Klyne: There was another grey area you mentioned: Expiring records is a grey area that must be cleared to benefit from the system. Can you share with the committee any recommendation on how this ought to be applied to automatic expiries?
Ms. Swan: I am sorry; can you repeat the first part of the question?
Senator Klyne: It was a grey area that you said needed to be cleared, including to limit offenders to benefit from this system. You said currently people are entitled to one pardon application in their lifetime, and applying this philosophy to automatically expiring records would be problematic.
Ms. Swan: In the current draft of Bill S-212, it’s my understanding that if they get through the crime-free period and there are no further offences, then they would get a pardon automatically; it would expire automatically. As I understand it, that pardon could be revoked, but I think it’s a little bit more complicated with the automatic expiry.
Senator Clement: Do any of you have any comment about the fact that the application process for a pardon is something that prevents people from being able to move on with their lives? We haven’t really delved into that today with this panel, focusing more on capacity, but people will remain in the criminal system if they can’t somehow find their way out. I don’t know if any of you would have a comment to make about that.
Mr. Oldford: I really do believe that’s a public policy discussion, and perhaps it involves some of the work that’s ongoing and being led by our Public Safety colleagues. Again, no one is necessarily opposed to having the right folks see their offence being set aside — if it’s the right offence — so they can continue on effectively. Then it’s just the logistics around that with respect to what that process looks like and simplifying it as much as possible to ensure that the other pieces are still in place as well, as my colleague had mentioned.
The Chair: That will bring this session to a close. I thank the witnesses for their very direct and helpful responses to our questions. It’s been a very dynamic session, and we appreciate that very much.
Joining us by video conference on our second panel today to continue our consideration of Bill S-212 are, from the Canadian Bar Association, Tony Paisana, Executive Member of the Criminal Justice Section; and from the Canadian Association of Black Lawyers, Raphael Tachie, President, and Rosemarie Davis, Vice-President. Welcome.
As you’re familiar with our operation, I’ll invite each of your groups to make a presentation of five minutes, followed by a second presentation and then questions by members of the committee. I’m now going to invite Mr. Paisana to begin his presentation.
Tony Paisana, Executive Member, Criminal Justice Section, Canadian Bar Association: Thank you, chair. I’m an officer and past chair of the CBA’s Criminal Justice Section. The Canadian Bar Association, or CBA, represents approximately 36,000 lawyers, students, academics and jurists across Canada. The Criminal Justice Section, in particular, comprises a mix of both Crown and defence counsel. It is from this balanced perspective we appear today and offer our comments on Bill S-212.
The CBA section supports the spirit of this bill and offers some commentary and suggestions to address specific concerns the CBA has identified regarding the use and misuse of criminal record checks and also to comment upon the record suspension system.
Criminal record checks have proliferated in our society. They are now a routine feature of everyday life. They are needed for job and volunteer applications, adoption applications, applications for post-secondary education and many other routine and important activities. The stigma associated with historical convictions is real and directly impacts and, more accurately, inhibits the abilities of thousands of Canadians from making pro-social advances in their lives. We also know that this problem disproportionately affects persons from marginalized communities, who historically have had greater and more negative interactions with police.
With respect to record suspensions specifically, our section supports a faster, more reliable way to expunging or removing historical convictions that no longer have relevance to the public at large. Historical convictions carry significant prejudice and create impediments for Canadians in achieving pro-social goals such as employment, volunteering and education. The record suspension system, while improved from years past, remains difficult to navigate and is a time-consuming and lengthy process. Shifting to an expiry system as proposed in the bill would alleviate some of these concerns; however, the bill won’t address another problem which routinely arises in criminal record checks, namely, the dissemination of non-conviction information held in police databases like CPIC.
“Non-conviction information” is a term used to describe police information collected in databases to record interactions that did not ultimately result in a criminal conviction. This could include files describing a person as a suspect, an arrestee, a victim of a drug overdose, a person apprehended under a mental health law, and so on. These highly prejudicial outcomes from police interactions are recorded and disseminated to the public in record checks, even though the individual was never convicted of anything.
These records are prevalent. For example, in a study conducted in Vancouver, 72% of all criminal record checks that recorded a hit, or what we might consider a relevant result, comprised solely non-conviction information. That means those 72% of applicants, everyday people, would have had to explain why the police had suspected them of criminal activity without ever having been convicted and, in many instances, without ever having been charged. This problem has attracted the attention of many groups, including the CBA, the CCLA, or the Canadian Civil Liberties Association, and the John Howard Society.
Privacy commissioners have reported on the misuse of non-conviction information. More recently, the Ontario provincial government introduced groundbreaking legislation that would severely limit the dissemination of such prejudicial information in criminal record checks by provincial police forces. The Uniform Law Conference of Canada issued a uniform act to address these issues in 2018.
The CBA supports the spirit of Bill S-212 in the sense that it seeks to limit the prejudice and stigma arising from historical convictions which no longer have relevance to things like employment and volunteer opportunities. Once a conviction loses this relevance and becomes historical, it only remains prejudicial to the individual’s attempts at rehabilitation, much like non-conviction information. Our position is that this same logic should extend further and cover non-conviction information. For this reason, we recommend that the bill be amended to prohibit the dissemination of that kind of information from federally held police databases.
The Criminal Records Act already does this in respect of offences which resulted in a discharge: I invite you to look at sections 6.1 and 6.2. We argue that the same protection should logically extend to records where an individual is not found guilty at all but, for whatever reason, had a negative interaction with the police. To be clear, this would not limit the police from having the information for investigatory purposes. The proposal of the CBA is to limit the sharing of this information to the public at large. Thank you.
The Chair: Thank you, Mr. Paisana.
Raphael Tachie, President, Canadian Association of Black Lawyers: Thank you very much for having me. Before I speak, I would like to introduce my vice-president at the Canadian Association of Black Lawyers, Rosemarie Davis, who leads our advocacy team.
I want to thank in particular Senator Pate for her efforts around this bill. In 2021, the Canadian Association of Black Lawyers, or CABL, joined a coalition of other organizations, including the Black Legal Action Centre, or BLAC, in Ontario, in support of a record suspension regime that would help address inequities and systemic biases in our criminal justice system that disproportionately impact Black individuals.
In our view, this bill broadly aligns with our goals to institute an automatic record suspension regime. While CABL’s criminal justice reform committee continues to review specific details of the bill, such as an application-based mechanism that the bill proposes for individuals who face additional convictions, charges or investigations, it is our view that the bill provides a concrete starting point for discussion in addressing and introducing the spent records regime we would like to see. CABL is supportive of a regime generally that would involve and address specifically the disproportionate impact of the criminal justice system on Black communities.
The legislation ought to consider anti-Black racism, and systemic discrimination needs to be addressed. For Black accused, automatic expungement of criminal and non-criminal conviction records can have a positive impact in successfully completing their sentences. An automatic expungement program would not include an expungement of vulnerable sector records, but we would advocate for a reduction of the waiting period for an individual with an indictable summary offence that is deemed to be eligible for a record that would be automatically expunged.
The Chair: I’m sorry to interrupt you. The sound coming through to us is not good enough for our interpretation. I wonder if it would be possible to now turn to Ms. Davis.
Rosemarie Davis, Vice-President, Canadian Association of Black Lawyers: I apologize; I was going to be tagging the president’s remarks, so I believe our position is to provide the content in writing so that everyone can have the opportunity to review it at their leisure.
The Chair: If it turns out we have questions for Mr. Tachie, we might communicate them through you, since I think it will be problematic for him to answer orally, given our technological requirements here.
Ms. Davis: I’d be happy to.
The Chair: Let me turn to questions from senators.
Senator Dalphond: Thank you for being with us this afternoon. My question is for Mr. Paisana from the Canadian Bar Association. You’ve raised two concerns, one was about the non-conviction actions. Could you expand a bit more on that? You say that most of the research done through the Canadian system is about this type of information. Is that because there’s a loophole in the current legislation that this is not covered?
The second is about “no sharing at large.” What do you mean by that? Do you want the information to be shared with the police for investigation purposes, but not, for example, with employers?
Mr. Paisana: I’ll try to address both those questions, senator. Non-conviction information is a problem that is emerging due to the significant ability of the police to record and maintain information concerning police interactions that don’t ever result in convictions and, in many instances, don’t even result in charges. For example, an individual is pulled over by a police officer and is suspected of drug trafficking, but nothing ever comes of it. The police officer records that in their police database. Many times, it’s a local police database.
In British Columbia, it’s called PRIME-BC; it’s an acronym. About 85% of British Columbians are in PRIME-BC for one reason or another. Sometimes it’s innocuous — you called 911 because you’re a victim of a crime — but sometimes it’s not innocuous, and many times it isn’t. It’s some kind of interaction like I have just described — the police suspected of you some wrongdoing and recorded it for their investigatory purposes. But let’s fast forward a few years. You conduct a vulnerable sector check because you want to coach your son’s soccer team, and all of a sudden this information comes up as a record. It’s not a conviction; it’s not even a charge, but you’re faced with the sigma associated with that suspected criminal activity and are forced to explain it, creating barriers to your ability to obtain employment, volunteer opportunities and so forth.
There’s a loophole in the legislation because, ironically, if you were found guilty but discharged, you would have that record expunged from the system, according to the Criminal Records Act. But non-conviction information is not defined or applied in the act and is routinely disclosed as part of these vulnerable sector checks. In response, the Ontario provincial government has done something about it, but it’s the only government in the country that has done so. At the CBA, we see room for the federal government to intervene in the Criminal Records Act to close this loophole.
Senator Dalphond: I understand that you referred to information that is in the database run by provinces or by specific police forces and not by the federal government or the RCMP.
Mr. Paisana: Yes. There are two layers of police databases. There are the federally held databases, which we acknowledge is the only thing your body can do anything about, but it is an important first step to the process. CPIC is the one we’re concerned with in respect to federally held information, which contains similar information to that which exists in provincially held databases.
The one thing I will point out to you, though, is that we conducted a study on behalf of the Uniform Law Conference of Canada that indicated the provincial police forces follow the lead of the Criminal Records Act when it comes to discharges, even though, technically speaking, it is a federal act. That is, out of respect and, perhaps, a paramountcy concern, provincial police forces are following the lead of that legislation, which I think is a positive sign for the federal government that they should also take a lead in this area to make sure this very prejudicial and lacking in probative value information is not disseminated freely.
In terms of my comment about public at large, senator, what I meant was people are applying for everyday routine things like jobs, volunteer opportunities, schooling. We are not talking about prohibiting the police from accessing this information for legitimate purposes.
Senator Dalphond: Thank you.
Senator Jaffer: Thank you to all the witnesses for appearing. I have a question for you, Ms. Davis. You are an advocate on this issue and you’re aware of what the challenges are. Can you explain to us what exactly the challenges are for Black people who are convicted? Why are they not able to get the discharge easily?
Ms. Davis: Thank you for your question. There are a number of reasons why individuals who identify as Black encounter challenges. One focuses on housing. Often when you are applying for new housing, there is a perception and there are stereotypes that are built into how Black individuals are treated. There is a perception that you may have too many kids or that you are coming with a criminal record. That in and of itself provides and creates a barrier for those who may potentially have criminal records.
There are studies that have been done that have shown that individuals — Black individuals in particular — who may not have had a criminal record have far more challenges finding employment as compared to their White counterparts who do have a criminal record. It really goes back to anti-Black racism and how it affects the individual’s existence. It is something that is built into our everyday life experience. It really revolves around the various stereotypes that are built into the systems that we live within.
Senator Jaffer: What other challenges are there?
Mr. Tachie: If I may add a comment, the other challenge is that the expungement process is expensive. To apply to engage the system to get a record removed requires you to have resources that don’t always exist for Black accused. The financial challenge of that current expungement process alone proves to be a barrier when somebody needs to deal with a criminal record suspension.
The other piece Mr. Paisana was speaking to, CABL often gets a lot of requests to intervene in a number of ways where an employer or a potential employee has access to a criminal record check to deny employment in spaces where that should not be the case. For certain Black individuals, a record suspension or expungement process that removes the cost of doing so becomes a critically important piece, as it affects and permeates, as Ms. Davis was saying, housing, employment and other areas of daily living.
Ms. Davis: If I may add to that as well, we recognize that the record suspension cost has been reduced, but that in and of itself is not sufficient because there are additional costs of actually gathering information, gathering supporting documentation for purposes of getting the record suspension. Those are things that need to be considered as well.
The Chair: Thank you.
Senator Jaffer: Ms. Davis, you mentioned housing. What about education? What about reintegration and rehabilitation? What are the challenges around that?
Ms. Davis: Those are absolutely challenges. If it takes longer to get a record suspension, it’s going to impede an individual’s participation back into the workforce. Individuals who identify as Black have been disproportionate. We know that Black individuals are disproportionately represented in the criminal justice system, and as they come out of the system and are trying to re-enter the workforce, if they are not able to have a suspension, it prolongs that status.
Senator Jaffer: You mentioned a report, can you please provide that to the clerk? You said that there are all kinds of studies. Can you provide one report to the clerk so we can read it, please?
Ms. Davis: Yes, I can do that. Would I do that after?
Senator Jaffer: Yes. Whenever you have time, send it to the clerk. Thank you.
Ms. Davis: I will be happy to do that.
Senator Clement: Thank you to both witnesses for your testimony today.
My first question is for the Canadian Association of Black Lawyers, whoever wants to take it. In 2021, when the government announced it was decreasing the processing fee for a criminal record suspension, Moya Teklu, who was the Executive Director of the Black Legal Action Centre, said in a statement:
Reducing the application to $50, will not make the process any less long, any less cumbersome, or any less complex.
In fact, she questioned even taking halfway steps of simplifying the application system or providing funding to assist with applications when we can just automate the system and deal with all these issues.
Considering how there is already a lack of trust — there is overrepresentation of Black and Indigenous people in the criminal justice system for all kinds of reasons that you have just outlined — can you share your thoughts on Bill S-212 directly on an automatic process and how that might address some of the mistrust that Black and Indigenous populations feel towards the criminal justice system?
Mr. Tachie: I will take a stab at it and, Rosemarie, feel free to add to it.
Senator, Moya Teklu is a top leader in this space, and I spend a lot of my time reading what she puts out and her and BLAC’s thoughts on this space. The automatic regime works well when you don’t have to engage a system first. Sometimes a lot of the challenges that a Black accused might have are around the access to information on what to do. So the process of engaging a record suspension or expungement is as a result of some kind of negative or adverse encounter with an employer, housing, that leads to someone wanting to address these issues. The automatic expungement or record suspension removes the barrier and allows people to fully integrate into society as full participants.
The process to facilitate and to address the systemic bias that exists in our criminal justice system and the perception in all communities that Black and Indigenous accused face an increasingly disproportional negative experience with the criminal justice system is a step forward. One way of addressing this bias is to make sure that once you have encountered the system and you have done and paid the required penalties under the law, we will find ways to expedite your integration into society. To me that is something worth celebrating and working towards.
Ms. Davis: I agree with that. When it is automatic, the additional steps, as was mentioned before, of having to provide additional records, the copy of identification, having to fill out the record suspension application form — those additional steps themselves are barriers. They are barriers to allowing a Black individual to reintegrate into society. When it is automatic, it removes those layers. As Mr. Tachie indicated, it is a very loud statement as to efforts taken to combat anti-Black racism.
Senator Clement: The next question is for anyone who wants to answer. It relates to the Canadian Bar Association’s 2017 document Collateral Consequences of Criminal Convictions: Considerations for Lawyers, which highlights some of the issues around not being able to access a pardon so as to be able to move on once you have served your penalty. Can you please comment on the importance of ease of access to criminal record suspensions for reintegration, and could we maybe start with the Canadian Bar Association, since I am referencing that report?
Mr. Paisana: The main attraction to an expiry system is alleviating the need to go around collecting records.
Let me give a practical sense of what that looks like. When you complete a pardon or a record suspension application, you have to do your fingerprints, your criminal record comes back and then it notes the things that the government says they know about. You have to then go off and go to every courthouse you have ever been found guilty of anything at and retrieve the court documents that more or less corroborate what the government already knows. You are trundling around to go and get, for example, a record of proceedings to show it was an indictable or summary matter to satisfy the government of the information they should already know. That can take months if not years to do.
What we find attractive about an expiry system is that it completely does away with what seems to be a due diligence process that should be, frankly, at the hands of the government to do, not the individual applicant. It will quickly do away with a lot of the difficulties the applicants have with the time-consuming process of a pardon.
From a more practical perspective in terms of what it means in a collateral consequences sense, criminal records follow people, and the stigma follows people considerably. You can imagine that two qualified candidates who are faced with a competition, one having a criminal record and the other not — even though that criminal record may be 20 years old — that one will always be put at the bottom of the pile because of the associated stigma. The criminal record or the non-conviction information that may be put forward on behalf of the applicant is a distraction in many cases because it isn’t relevant to what the applicant is asking to do, particularly with the passage of time.
Senator Batters: My questions are to Mr. Paisana. We have heard that the application process is lengthy, costly and onerous, leading to many sometimes giving up on the process altogether. We have also heard from witnesses that there is merit and value in retaining an application process, especially for certain types of crimes, and that an automatic expiry may not be feasible or appropriate.
Would you be open to a better, more simplified process for applicants rather than the automatic process proposed in Bill S-212?
Mr. Paisana: My simple response is that we have been chipping away at this problem for long enough that I think a more revolutionary change is necessary. The record suspension or pardon system has been the subject of much debate for the better part of 25 years, and we don’t seem to be improving it in any scalable way that seems to be making a difference for Canadians.
The financial impediments introduced about a decade ago were actually a step backwards as opposed to a step forward, and now we have basically come back to where we were a decade ago in terms of the financial impediments. The process itself is the same. Those problems remain the same.
As I say, with the record-keeping capabilities of government, it is shocking to me that we are putting individuals, many of whom suffer from mental health difficulties or otherwise, through the process of collecting information that the government should already have at its disposal. In my respectful view, the time has come for a more significant change in light of the difficulties we’ve had with this problem for the better part of three decades.
Senator Batters: In an exchange with Senator Pate, the sponsor of the bill, Federal Ombudsperson for Victims of Crime Benjamin Roebuck stated that with Schedule 1 offences that might involve sexual crimes against children, “. . . five years isn’t necessarily sufficient, particularly with crimes against children with multiple victims.”
Senator Pate responded that:
One of the previous iterations of the bill did include those offences, but they are now excluded, for the most part, from the automatic process.
Is that your understanding of the bill? Because the way I read it, it seems that Schedule 1 and Schedule 2 offences are treated slightly differently than other offences, but they still may be eligible for automatic expiry if the offender had been of good behaviour for the required five-year waiting period. It seems like Schedule 1 or 2 revocation is only possible if the offender was not of good behaviour in the preceding five years and misrepresented information in that person’s application to the Parole Board of Canada. Is that your understanding of it?
Mr. Paisana: What I will say is with respect to Schedule 1 and Schedule 2, the committee is well positioned to hear from the various witnesses in terms of what the appropriate time frames, expiry periods and criteria are. I’m not necessarily here to comment on the wisdom of all of those points.
My comment is more about the mechanism through which these records become expunged as opposed to the individual criteria that the government deems appropriate and the time frames deemed appropriate for that to happen. Our main concern is the time-consuming process that we seem to be engaged in to get to these end outcomes as opposed to the individual criteria.
I can’t speak with authority on the specific question you have raised. I would need some time to go back and specifically analyze that particular question, but if you are asking us to provide you with that analysis, I am more than happy to do so.
Senator Batters: I would appreciate it, yes.
Mr. Paisana: It’s a very technical, legal question that no one gave me heads-up I would be getting.
Senator Batters: No, I recognize that.
Mr. Paisana: Leave it with us, and we will definitely provide a written response with respect to how it is that Schedules 1 and 2 seem to be treated by this legislation.
Senator Batters: Yes, I would appreciate that because we have heard from many witnesses so far, and I do not feel like I have gotten clarity on that but, frankly, maybe more confusion. Given that you are here representing the criminal justice system of the Canadian Bar Association, I think you would be well placed to answer, absolutely given some time to review that and let us know because I think it’s significant.
Mr. Paisana: Yes. And it’s a highly technical question, so I don’t want to give you an answer off the top of my head that is incorrect.
Senator Batters: Absolutely. I would expect nothing less. Thank you very much.
The Chair: Thank you for that answer, Mr. Paisana. If I could request that when you send the response, send it directly to Senator Batters.
[Translation]
Senator Dupuis: If I may, I would ask for a copy at no additional cost for the committee members. Since you are asking that the invoice be sent to Senator Batters, I would ask that copies be shared with the other committee members at no charge. Thank you.
I thank our witnesses for being with us today. My question is for Mr. Tachie and Ms. Davis first. Given that you can see both sides of the story, including people who have been convicted as well as victims, can you tell us if it is problematic from the victims’ point of view to have an automatic expiry system? In your view, should the expiry provisions apply in all cases, regardless of how serious the offence is?
[English]
Mr. Tachie: We’re not advocating for an automatic expungement or record suspension for all offences. In our written comments, you see that we exclude offences against vulnerable people. We expect that this is not a tenable situation.
Having not been a victim myself, I can’t purport to speak for all victims or any victims, but what my view is based on my experience in the community is that the challenge we face as a community is much more on the over-surveillance and over-policing of Black bodies that lead to these criminal records that follow you throughout your life.
I suspect, at least from the communities that we represent, that you will see incredible support for this bill if it passes and becomes legislation because Black bodies in Canada tend to be the focus of over-surveillance and over-policing, and the impact of that affects generations of families. For me, that is the overriding concern and the reason why I think this bill will be a celebrated step towards making our justice system fairer and more equitable.
Mr. Paisana: Senator, I represent both accused persons and victims fairly routinely. What I can tell you, the first thing that came to mind in response to your comment was that an accused one day is often a victim the next, and vice versa. It is a remarkable phenomenon in terms of the police interactions with marginalized communities that one is interchangeable with the other in many contexts. So I don’t think that if we take a more nuanced view of the victim profile, if I can put it that way, that there would be a lack of understanding in terms of empathy and progressive thoughts regarding the use of criminal record checks.
The second point is the criminal justice system and the Criminal Code are predicated on the idea that when someone is sentenced, they are to be rehabilitated and reintegrated into society. That reintegration and rehabilitation cannot be complete until the person no longer suffers the stigma of a criminal conviction. Once that stigma is no longer relevant, there has to be a point in time in which the criminal conviction lacks its probative value and relevance.
As I said a moment ago, it’s up to this august chamber to figure out what that period of time is, but there is a period of time. If we don’t ascribe to such a belief, then we don’t believe in the criminal justice system as we have articulated it. We must believe in rehabilitation, and that includes the concept of reintegration many years after a conviction.
Ms. Davis: If I may add for further consideration, I think the record suspension could itself assist in lowering the rate of reoffending. I think that is certainly a key concern and consideration. Because when you remove the barriers, that will allow individuals to enter stable employment, and then there is more reason to be law-abiding. So I think that’s something that is key for consideration here.
The Chair: Thank you.
I have one very general question that I might pose to each of you. It seems to me that we ought to be able to design a system that removes access to criminal records for people who make inquiries for illegitimate or irrelevant reasons, and at the same time, that information ought to be available for legitimate purposes. This is a very large question, not even specifically focused on this bill. We have heard from policing communities that for the purposes of criminal investigations — and I expect in various parts of your work — for prosecutors and police it’s important to have access to that information for legitimate reasons. One would have thought that designing it just required some gift of figuring out the different databases where this information is held and then putting in place the mechanisms that can manage that. Am I missing something about the general concept here and why we seem to struggle to get there? Maybe I could ask Mr. Paisana first.
Mr. Paisana: You’re putting your finger on something that has troubled many lawmakers and analysts. The best way I can answer is this: There are two ways of approaching the problem. One is what I will call the negative approach, the prohibition approach. You stop people from sharing things. The other way, the positive approach — and I don’t mean that in the way of it being good or bad; it is just to explain myself — is a release-of-information approach, meaning we are going to define in legislation what we will release as opposed to defining in legislation what we won’t release. The act has both in it, and it can be quite confusing. For example, when it comes to discharges, we prohibit the dissemination of certain information, but with other pieces of information, we allow for the dissemination of information. One of the ways to simplify the process is just to make a decision about how to approach it, from a very fundamental perspective in that way.
I think the simpler way of doing it is to prohibit the dissemination of information, to indicate the defined categories of data we will prohibit from being disseminated to individual bodies, be it the public at large or, in some instances, the police — if the information is dated enough — or what have you. I think that’s the simpler way of going about the problem.
In the broader societal scheme of things, the CBA generally agrees the police should have a more liberal access to information than the public at large for the reasons you have articulated. There is very little reason for the public at large to have access to information like non-conviction information, and that’s one of the things we highlighted earlier because that information is of a different quality. It does not carry the same kind of relevance as conviction information.
Mr. Tachie: I would generally adopt Mr. Paisana’s remarks. The only addition I would make is the history of how criminal records and information about involvement in the criminal justice system have been used, a scope creep of how that information — we have a history of doing that already. So the availability of certain information becomes a reason to use it for another purpose. In some instances, you become aware of somebody who maybe has an immigration issue, but you can’t really deal with it, but you find out they have been subject to the criminal justice system in some way, and all of a sudden that information is relevant for immigration purposes. It is the scope creep that impacts and makes the keeping of such records difficult.
I agree with Mr. Paisana’s comments that police officers should have liberal access to information for investigative purposes, but it is really defining when that ends, and that is the challenge because it easily bleeds into these things.
As I mentioned earlier in my comments — hopefully that came across — CABL has been involved in a lot of requests to do interventions where Black employees are offered roles, and, all of sudden, the role gets pulled away from them, and the strong suspicion is somebody ran a background check and asked for information that was not relevant to the role they had applied for. These things find their ways into places that impact the lives of formerly accused people, not even currently accused or having been convicted.
The Chair: Thank you.
Ms. Davis: I was going to reiterate everything that has been said so far. One point I wanted to make and to support what Mr. Paisana said was that you draw a line in the sand. In the same way that there is a process around use of records and it not being available under the Youth Criminal Justice Act, you draw the line in the sand in the same way that you would in this instance.
The Chair: Thank you very much.
I think that concludes our round of questioning. Let me take a moment to thank the witnesses, in particular Mr. Tachie for hanging in there as we worked our way through that technological challenge, and just a reminder, Mr. Paisana, that you have undertaken to provide a little more insight to the committee in response to Senator Batters’ question.
Mr. Paisana: Chair, if I can invite Senator Batters to articulate the specific question in writing, that would assist me as well.
The Chair: On that topic, to help Senator Batters, we might access the transcript and share that with you, and that might be a guide for you. Would that be acceptable?
Mr. Paisana: Yes. I just want to make sure I captured the nuance of her question.
Senator Jaffer: I had the second round, but I know we have run out of time.
The Chair: Oh, I’m sorry. We do have another minute or two.
Senator Jaffer: I had a question for Mr. Paisana.
Mr. Paisana, you have been practising criminal law for a long time, and I was wanting to ask you, and if you could put that in writing — sorry to give you so much work — on the challenges of Indigenous people when it comes to getting pardons. Not, of course, a paper or anything, but just in point form, that would be very helpful.
Mr. Paisana: Do you want that in written form?
Senator Jaffer: Yes, because we have run out of time. Sorry. I apologize.
Mr. Paisana: Very well. Yes. No problem.
Senator Jaffer: Thank you, chair, for indulging me.
The Chair: I won’t repeat my thanks in depth, but we very much appreciate your joining us again to guide us in the work of the committee with respect to this bill. Thank you very much and thank you again, senators, for your patience and insights and your questioning and dialogue with our witnesses. At this point, with your permission, I will declare the meeting adjourned.
(The committee adjourned.)