THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, June 1, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:32 a.m. [ET] to consider Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good morning and welcome to the meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
Before we begin, I’d like to ask the senators to introduce themselves.
Senator Boisvenu: Senator Pierre-Hugues Boisvenu from Quebec.
[English]
Senator D. Patterson: Dennis Patterson, Nunavut.
Senator Klyne: Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe.
[Translation]
Senator Dupuis: Renée Dupuis, independent senator, Laurentians, Quebec.
[English]
The Chair: I’m Brent Cotter, senator for Saskatchewan, from Treaty 6 territory and the homeland of the Métis. Welcome, senators.
I’d like to begin in a moment by welcoming our witnesses. This morning, we are continuing 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.
We have two panels today. With the first panel, let me welcome, from the Fresh Start Coalition, Tareq Bawwab, Member of the Community Expertise Committee, joining us by video conference; from the Black Legal Action Centre, Khaldah Salih, Community Legal Worker; and as an individual, Rachel Fayter, PhD Candidate. Welcome to the three of you.
As I think you were reminded before we began, I’d like to invite you each to speak for five minutes, and following that we will engage with you in discussion and questions with the senators who are attending the meeting today.
If I could ask you, Mr. Bawwab, to begin.
Tareq Bawwab, Member, Community Expertise Committee, Fresh Start Coalition: Thank you, senator. Hello, everyone. Thank you for giving me the opportunity to speak today. Ladies and gentlemen, I would like to begin by introducing myself. I am Tareq Bawwab, an individual member of the Fresh Start Coalition representing those with lived experience. I am a graduate of the University of Toronto with a double major in history and political science. I have been working with the coalition for almost two years, pushing forward our campaign. As a member of the Community Expertise Committee, which includes members of the community with lived experience being affected by the Criminal Records Act, I have lived with the systemic barriers which the current system entails.
I commend the Honourable Senator Kim Pate for her efforts all these years to reform the current record suspension regime. The current regime has a number of significant problems and barriers to the reintegration of ex-offenders into society. I was charged a decade ago and convicted nearly a decade ago of a charge which I incurred as a result of being in a mental health crisis.
As my colleagues have suggested, Blacks, Indigenous and people of colour, as well as the mentally ill, are significantly overrepresented in the criminal justice system.
Furthermore, I would like to highlight some of the major issues and barriers with the current record suspension regime and how Bill S-212 rectifies our concerns.
First of all, the increased wait times for summary offences changed from 3 to 5 years and for indictable offences from 5 to 10 years, which is a significant doubling of the wait times, which goes against the fundamental principles of justice. If one was to wait 10 years after sentencing, which may include probation, they are often going to wait even more than a decade for a pardon. This increases chances of further police contact and discrimination in the system as it currently stands.
As suggested by one of my colleagues, a five-year reduced wait time would allow someone to possibly finish a degree and further their education while waiting for their pardon. But 10 years would negatively affect anyone’s mental health to their detriment and leave them in a state of hopelessness and despair.
There are many factors regarding how doubling of the wait times increases chances of police interaction and increases the chances for recidivism due to how unreasonable a decade‑plus‑long wait can be. No access to employment, no possibilities for volunteering or being able to contribute positively to society. Lack of supports, lack of meaningful employment and not being able to travel is like sentencing someone to unconstitutional double punishment by effectively killing their spirit with a decade sentence after they’ve completed their initial sentence for the same crime. This leads to basic human needs not being met due to the rigidness and complicated application process of the current record suspension regime.
Any interactions with the law after the initial conviction should not be treated as a new conviction and reset of the wait times or affect the eligibility of a pardon. Due to the over‑policing of certain communities and if new charges are discharged or withdrawn, there should not be a reset of wait times for a pardon. At the same time, there are not enough resources to accommodate the needs of the mentally ill to prevent them from reoffending in the first place.
This brings me to the good conduct clause. If you have completed your sentence, waited the awaited times but have had any interaction with the law, including even driving offences, the Parole Board of Canada can refuse you a pardon under the good conduct clause of the present regime. Furthermore, if an ex‑offender is found not to have paid a fine or victim surcharge, their wait times are reset, meaning even if you had a mere $10 fine from 10 years ago which is outstanding, you will have to wait another decade for a pardon due to outstanding fines. That’s a 20-year wait for a pardon due to the reset clause of the current regime. This is like condemning someone to a life sentence.
Hence I commend how Bill S-212 seeks to rectify the systemic racism, discrimination and over-policing of Black, Indigenous and racialized minorities as well as the mentally ill by allowing for a pardon as long as there are no new convictions. Also, fines or minor administrative portions of a sentence do not reset the wait times. The current application process has infinite hindrances to the rehabilitation of ex-offenders. Hence an automated system of pardons would rectify how marginalized groups will be freed from the constraints and complications of the application process.
If you have any further questions, I would be more than happy to address them. Thank you very much.
The Chair: Thank you, Mr. Bawwab.
Could I now invite Khaldah Salih to speak?
Khaldah Salih, Community Legal Worker, Black Legal Action Centre: Hello, everyone. My name is Khaldah Salih. I’m a community legal worker at the Black Legal Action Centre, known as BLAC. Thank you for inviting me to this hearing and thank you to Senator Kim Pate for her leadership on this bill.
Established in 2017, the Black Legal Action Centre is an independent, not-for-profit community legal clinic in Ontario that combats individual and systemic anti-Black racism. BLAC accomplishes its mission by providing free legal services, conducting research, developing public legal education materials and engaging in test case litigation and law reform. BLAC is the successor to the African Canadian Legal Clinic, which is accredited to the 2001 United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance.
BLAC has been working with other organizations and advocates as part of the Fresh Start Coalition and with the Canadian Association of Black Lawyers, calling for the criminal records system to be reformed.
We are extremely concerned with the current criminal records system because of the reality and impacts of the continued criminalization of Black people. The documented disproportionate rates of Black people in federal prisons exemplifies the systemic racism inherent in the criminal justice process, from the higher policing of Black communities to the higher likelihood of Black people receiving harsher sentences.
These are concerns also highlighted in Canada’s Black Justice Strategy currently under way by the federal government.
The impact of criminalization is deepened by criminal records, which makes it harder for people to obtain employment, housing and educational opportunities, although they have already served their sentence. We think that a new criminal records system should be automatic, have shorter wait times, apply to all convictions, and eligibility should focus on the lack of new convictions and not on police contact, for example. An automatic system for all convictions is necessary to alleviate the impacts of criminalization, and in particular, to alleviate the impacts of systemic anti-Black racism.
It is of some significance that a new system does not require police contact as a necessity to have a criminal record expire. We have a higher likelihood of contact between police and Black individuals due to increased surveillance and policing of Black communities. Black people with criminal records would face a discriminatory barrier to access that expiry. Therefore, the focus should be on new convictions.
An automatic system would shorten wait times and would lessen the barriers faced by people to start their life and reintegrate into society. The barriers created by this system perpetuate the conditions that could lead to criminalization itself, something that disproportionately impacts Black communities.
We must consider that when an individual has a criminal record and has to live with the consequences for years, it is not only that individual who is impacted; it is also their family and community. That is the nature of systemic discrimination; its impacts are felt throughout society.
There is no evidence to show that having a criminal record would reduce recidivism or increase public safety. You cannot tell, based on a past record, whether a person is more likely to commit an act of violence in the future. After a few years — much less than the 10 years required in the current system — a person with a criminal record is no more likely to become involved in the justice system than a person with no criminal record.
What we do know, however, is that a criminal record can bar access to education, employment and housing, and that those financial and social barriers perpetuate the impacts of systemic anti-Black racism, which can lead to criminalization in the first place. Thank you for your time.
The Chair: Thank you, Ms. Salih. I now invite Rachel Fayter to speak.
Rachel Fayter, PhD Candidate, as an individual: Good morning, honourable senators. Thank you for having me. My name is Rachel Fayter. I am currently a PhD candidate in criminology. I am also a criminalized woman who served a five‑year sentence in federal prison. An automatic criminal record expiry process would sustain and contribute to my ability to continue as an active, contributing member of society by reducing barriers to community inclusion.
I was released from prison in 2017. The stigma of incarceration and having a criminal record, along with constant criminal record checks, has impeded my community re-entry. I did not have a criminal record prior to this conviction, and I was very fortunate to have a strong social support network, along with a master’s degree in psychology and 10 years of social work experience, all of which are extremely rare for people leaving prison. Despite these assets, I was unable to find work in my field after sending out over 100 resumés and having dozens of interviews. After several months, I was forced to work two minimum-wage, part-time jobs, selling burritos during the day and stocking grocery store shelves overnight. This was difficult on my physical and mental health.
Even after successfully completing my sentence and parole without any violations, I have continued to face barriers accessing housing, employment and travelling outside of Canada. In Ottawa and many other cities across the country, landlords and building management companies ask for a criminal record check to obtain housing. Although I was a PhD student and doing well in the community, it was extremely difficult to find an apartment, and I had to ask my professors for letters of reference to support me in accessing housing.
As an academic and social justice advocate, I frequently must travel for research, conferences, workshops and other events in Canada and internationally. However, I am not able to enter the United States, along with several other countries, due to my record.
Having a criminal record has also made me vulnerable to police harassment. I’ve had police pull me over for no reason after they run my plates other than to check if I’m doing anything illegal. Due to my research and advocacy, I am frequently in contact with other former prisoners, some of whom are struggling with poverty, homelessness, mental illness, addictions and ongoing criminalization. Having a criminal record has resulted in police following me after meeting with other criminalized people who were under investigation. I’ve been violently assaulted and threatened by police in the past, so I experience a lot of anxiety and am re-traumatized when this happens.
The current criminal record suspension process is extremely cumbersome, time-consuming, re-traumatizing and expensive, even with the reduced government fee of $50, making this inaccessible to most criminalized people.
The penal system sets us up for failure and creates a cycle of criminalization that is difficult to escape from. Without access to housing, employment, education and barriers to obtaining health care and mental health or addiction treatment, people are forced to break the law sometimes to survive, engage in unhealthy, abusive relationships or return to jail for food, clothing and shelter. This cycle of criminalization costs taxpayers billions of dollars a year that could be better spent on building healthy, well-resourced communities, which would reduce incidents of law breaking. It also excludes the most marginalized people in society, which is a shame in a country that espouses values of equity, diversity and inclusion.
These punitive policies and practices do not contribute to public safety. Am I not considered a member of the public? The Canadian government is supposed to ensure Canada is a just and law-abiding society, with an accessible, efficient and fair system of justice. However, the current punitive legal system imprisons already marginalized and disadvantaged populations, destroys lives and kills people. I lost everything when I was incarcerated and saw people die inside prison and on parole due to systemic violence. I may be successful now, but I am an outlier. I constantly feel vulnerable and am still healing from the trauma of imprisonment. Thank you.
The Chair: Thank you, Ms. Fayter.
[Translation]
Senator Boisvenu: I thank our witnesses. My question is for Ms. Fayter. You said you were incarcerated for five years. What crime did you commit back then?
[English]
Ms. Fayter: Yes. I was incarcerated for drug trafficking.
[Translation]
Senator Boisvenu: I see. The bill before us makes no distinction, when it comes to the erasure or disappearance of criminal records, between offenders who have committed rather minor offences and those who represent a high risk to society. I’m thinking, among others, of sex offenders.
Does your opinion mean that prolific sex offenders should be treated the same way as an offender who has committed minor offences?
[English]
Ms. Fayter: Thank you for your question. First of all, these violent convictions represent a very small proportion of criminal convictions. I don’t think a legal system should be designed based around these rare examples. Sexual violence, as well as murder, is commonly linked to intergenerational trauma, living in unsafe neighbourhoods and systemic or structural violence. We currently live in a society that perpetuates violence against women and gender-diverse people, along with racism and sensationalist media reporting.
[Translation]
Senator Boisvenu: I’ll go back to my question. You say that sexual assaults are a minority, but 30% of cases in the courts deal with sexual assaults and 30% deal with domestic violence. In many cases, the accused are repeat offenders.
I’ll repeat my question. You’re a woman, you live in a neighbourhood. Would you feel safe if the system ensured that all criminals, regardless of the seriousness of the crimes committed — I’m thinking, among others, of sexual predators — were released from prison and that, a few years later, their record disappeared completely from the police radar? Would you, as a woman, feel safe?
[English]
Ms. Fayter: I don’t condone sexual assault in any way. I am a victim of domestic violence and many years of abuse. In my experience, when there were police interventions, it made me more susceptible to violence because the person wasn’t necessarily taken into custody or they became angry. When I was incarcerated, I saw many women in prison who were being sexually assaulted by guards. I know people who have been sexually assaulted by police as well. I think there are other things we can do to keep people safe in these situations.
[Translation]
Senator Boisvenu: You haven’t quite answered my question.
What I mean is that the current bill makes no distinction between a record that would be completely erased — because you have to understand that a record that disappears is a record about which the police no longer have any information.
So, I’ll say it again. You live in a neighbourhood, and very dangerous sexual predators are released — as some of them get out of prison and are still very dangerous. Are you in favour of this bill making a distinction between an automatic pardon for a minor offender and an automatic pardon for someone who is dangerous when released?
[English]
Ms. Fayter: I’m not sure of the best way to answer this question because there are lots of complicated issues surrounding this. As a woman, I don’t feel safe in the community many times as it is.
[Translation]
Senator Boisvenu: Thank you.
[English]
Senator Klyne: My first question is for Ms. Fayter. Going back to your criminal record, it’s obviously made life difficult trying to reintegrate into society and enjoy some of the privileges of that. You named a number of things, but how does Bill S-212 respond to the issues or elements you’ve experienced first-hand, and how will it help others that you know of in other circumstances similar to yours?
Ms. Fayter: Having a shorter wait time would certainly assist with accessing housing, employment and, as I said. Also, it would facilitate my research and advocacy work. It’s difficult for me to gain access to prisons and jails, to meet with people or meet with people who are on parole. Also, having an automatic record expiry process would make things a lot easier for people.
I’m eligible for a record suspension soon, and I’ve been looking into the process. Even though I’m a graduate student, it’s very complicated and difficult. There are many steps. I will also have to go to police stations and contact courts, and these are places where I don’t necessarily feel safe. I recognize that I’m very privileged and there are other people who struggle with literacy, don’t have access to technology or don’t have money. It’s very difficult as it stands right now. There are lots of people who deserve to have access to education. I have several friends with a record who have not been able to enter different university programs because of their record.
Senator Klyne: Thank you.
I have a question for Khaldah Salih. I have a quick question in terms of the stigma of a criminal record jeopardizing the future of marginalized people who seek employment, as we’ve heard, and those hoping to secure housing, as we’ve also heard, in their respective communities. From your organization’s perspective, can you please comment on how Bill S-212 might improve access to housing and employment for marginalized people with prior convictions?
Ms. Salih: Thank you for your question. Essentially, the stigma of a criminal record, the idea that it would expire with a shorter wait time, the idea that it would also be automatic and that an individual wouldn’t have to go through an application process, all of that would make the ability of someone to reintegrate into society and access these things really important.
What we do know from reports about these issues is that Black, racialized and Indigenous people — obviously, our organization focuses on Black communities. We know that Black communities have difficulty in accessing housing, for example, facing discrimination by landlords when trying to rent. That, in addition to the stigma of a criminal record, is something that would increase the discrimination that an individual is facing and limit that reintegration into society. Similarly, in trying to access employment, as was previously mentioned in another meeting by the Canadian Association of Black Lawyers and as has also stated by the Black Legal Action Centre, there are reports that show that a Black individual without a criminal record is less likely to obtain employment than a White individual with a criminal record.
There is discrimination faced by Black people even without criminal records when they are trying to access employment or obtain jobs. The increased stigma of a criminal record again limits access to employment, which, of course, obviously means limiting access to financial freedom, supporting families, all of those things. Obviously, we know that housing, employment and educational opportunities are extremely important.
It is about the fact that a criminal record, coupled with racialization, that intersection is what increases stigma, discrimination and is perpetuated throughout a community, society, and all the individuals a person could be responsible for or tied with. That’s the community aspect.
Senator Klyne: I have a short question if I can get a short answer; we have a limited time. Again to Ms. Salih, can you explain how amending Canada’s record suspension system offers support to victims of domestic violence and sexual offences?
Ms. Salih: I don’t believe I’m an expert on this topic. My work is focused more on racialized people. Perhaps Ms. Fayter might speak to this issue more, but I don’t think I can. However, I can put together a statement if that’s better and send it to you.
Senator Klyne: Thank you.
Senator Pate: Thank you to all of the witnesses for appearing today. I’m interested in hearing from each of you about what else we could be doing as senators to assist in terms of the integration process and records, as each of you has indicated how records inhibit that, but also the intersections and the extent to which the presumption that the knowledge of a record actually keeps people safe. We know that, as Senator Boisvenu pointed out, many cases of sexual assault are never even reported to police. The presumption that knowing about a record will somehow keep us safer is something that I know some of you have done work on. If each of you would be comfortable speaking to that, that would be great.
Mr. Bawwab: From my experience in having a criminal record, I’ve been trying to apply for meaningful and gainful employment for a decade now. I’ve been rejected by many. After conducting many interviews, the simple background check question inhibits me from obtaining meaningful and gainful employment. Prior to my conviction, I graduated with a degree from the University of Toronto with a double major in history and political science, and I was unable to apply myself to my degree and gain meaningful employment in my field. I was restricted from many opportunities due to having a simple criminal background check conducted on me. Even the simplest jobs outside of my field — the only positions I was able to obtain were labour-intensive and there was no application of my academic progress.
In my opinion, it doesn’t keep people safe. For anyone doing a criminal background, it’s just discriminatory, rather than keeping people safe — especially if the conviction is unrelated to the job and what it entails.
Ms. Salih: Thank you, senator, for the question. I echo a lot of what Mr. Bawwab said. I also want to add that essentially it is during the process of sentencing when it is determined what “punishment” an individual is supposed to experience due to their conviction. The process of a criminal record increases that criminalization and the impact on an individual.
It has been shown throughout these meetings — and also through my colleagues here — that it is really about the stigma of a criminal record, the idea that society feels safe, rather than whether this will actually lead to safety.
What others have also shown is that this increases the likelihood that an individual might, for example, engage in criminal activity if they are unable to find meaningful employment or safe housing, and the impacts of being financially precarious because of this. There is also the risk that an individual could engage further in criminalization, and that has an impact on public safety. Rather, the idea that individuals feel safe when, as Mr. Bawwab said, the job doesn’t have to do with that, then that’s not the case. Thank you.
Ms. Fayter: I don’t have anything to add to what the other two witnesses shared. I would have said the exact same thing and I agree with what both of them have said.
Senator Pate: This question is for Ms. Fayter. Congratulations on the ongoing work you’re doing.
Would it surprise you to hear that I frequently hear from folks I’ve known for years that their inability to get work means they are often driven back into poverty; that, sometimes, is the only jobs they can get, if they can’t get labour jobs — as we have already heard from Mr. Bawwab — they end up doing things that could cause them to be further traumatized, whether that’s engaging in stripping, sex work and other areas where often they feel the need to anaesthetize themselves to deal with the past trauma that is invoked by that.
Would that surprise you? Is that something that you know of other folks who have been faced with those kinds of options? Any of the rest of you might want to speak to that as well, but I’ll start with Ms. Fayter.
Ms. Fayter: Thank you for your question, Senator Pate. I would agree with that. From my experience, that does not surprise me. The current system and having a criminal record, as we’ve heard, promotes stigma and discrimination and excludes people from society. People are out on the streets because they cannot find housing. They are frustrated because they cannot access education. They’re not able to obtain regular, meaningful employment. I know of many people who have been forced into sex work, including stripping. Sometimes people have mental health crises or are struggling with addictions or might end up in unhealthy relationships, as I said earlier. Some people might get into drug trafficking or stealing in order to survive, feed their family, have shelter and that sort of thing.
Mr. Bawwab: I would echo some of the suggestions that Rachel Fayter proposed.
A lot of people end up having to engage in criminal activities because they can’t attain any form of employment. Even in the environments where they are employed, there could be negative influences. They could have mental health issues or be facing addiction issues. That spirals them into a vicious cycle of recriminalization and further interactions with the law. Access to record expiry would alleviate the need or inclination towards reoffending in general.
Senator Clement: Good morning to you all. I want to make a disclosure statement. I am a proud legal clinic lawyer and have been for the past 32 years. I remain connected to the Roy McMurtry Legal Clinic in Cornwall. I wanted to state that publicly because I may be in conversation with Ms. Salih on these questions.
I also want to acknowledge the fact that you spoke from a lived experience place here. In this committee, we often have witnesses who do that and it’s very powerful. I get chills every time. I want to express gratitude to you for that and acknowledge that this comes with a personal cost. Thank you for your courage.
All of you spoke in favour of an automatic records expiry process. Healthy community participation is the key to a healthy life as a human, and you all made that point very compellingly.
I want to ask you specifically about the Parole Board and whether you feel that the Parole Board is the right body to administer an effective record expiry process. The Parole Board has a very specific function. Do you think they should be the ones to do this? I would like all of your comments on that.
Also maybe turn your minds to your thoughts about whether the RCMP would be able to do this process because they are record holders and have experience with that. If you could comment on those things, I would appreciate it.
Mr. Bawwab: I find that it’s problematic for the Parole Board of Canada to be involved in this process due to the fact that they offer certain discriminatory policies in the application process itself. Putting the onus on the ex-offender to initiate why they would benefit from a pardon is one major obstacle.
Everyone knows the systemic barriers — lack of employment, housing, opportunity, ability to volunteer and to travel to certain places outside of Canada, such as the United States.
Also, there is an element of the application process called the “good conduct” clause where, if you’ve had any police contact — even driving offences are included in this. If you have unpaid parking tickets, they can refuse you a pardon based on that alone. Further police contact is something that happens to marginalized communities, and the mentally ill especially, as well as racialized minorities. This is very common in these communities. They are over-policed and targeted.
Someone who is not of sound mind may have an interaction with the law that may result in either a discharge due to their mental health state at the time or a complete withdrawal of charges, and this could be during the waiting period. What contributes to the vicious cycle of further interaction with the police for someone who is already a vulnerable person with a mental health condition would be the fact that they may experience symptoms of their mental illness due to being traumatized by the inability to get access to employment and reintegrate into society and, as you said, have a healthy relationship in society.
On top of that, especially during the pandemic there was a lack of resources for the mentally ill, so you find a lot of them having interactions with the law after their conviction. It is spiralling out of control.
Bill S-212 offers a remedy for this by taking the Parole Board out of the equation because of how judgmental they could be, and having further interactions with the law that were withdrawn, meaning there are no new convictions. That should be the only way to determine whether a pardon is not administered in these cases. That’s something I firmly stand by as part of the Fresh Start Coalition and from my personal lived experience.
Ms. Salih: Thank you, senator, for the question. I don’t want to repeat a lot of what Mr. Bawwab said. The only thing I want to add is looking at the aspect of experiences of Black and racialized communities. The current system requires an increased interaction with these criminal justice institutions, and, aside from potentially being retraumatizing, there’s already increased surveillance of Black communities, racialized communities, people that live in poverty and people with mental illness. Having a system that increases that interaction with these institutions and those aspects of surveillance is extremely harmful, perpetuates discrimination and is an aspect of why certain communities are more likely to be criminalized as opposed to other communities. An automatic system and limiting interaction with these institutions is important and key.
Ms. Fayter: I don’t believe the Parole Board is a good way to look at record expiry because, as my colleagues said, they are discriminatory. Also, there is not much diversity among Parole Board members. Most of them are White, and a lot of them are ex-police or people who have worked in the system.
On that point, the RCMP also would not be a good venue. If there had to be some kind of a committee that did decide on this topic, I think it should be a diverse group of people, different stakeholders that have different areas outside the criminal justice system.
[Translation]
Senator Dupuis: I thank the three witnesses.
For my first question, I’d like to go back to what Rachel Fayter said. I also invite other witnesses to add comments afterwards.
Should we set up a system where people outside criminal justice or the police would manage the issue of criminal records? You’ve answered that question.
However, I’d like to come back to what you said. I was quite struck by the expression you used when you described yourself as an outlier. I’d like to understand, and maybe you can explain it to us: How do you evaluate the way the person you were — whom you describe as an outlier — managed to make her way, after five years in prison, back into society, to find a job and be accepted at university?
I’d like to better understand to what you attribute the fact that, in the end, you managed to be accepted into a PhD program, for example. I don’t know your background in academia, which isn’t known for being an easy environment either.
Would you be willing to be a little more specific about what you think has gotten you through, so far?
[English]
Ms. Fayter: Thank you for your question. In my experience, what really helped me to succeed was being able to access education while I was in prison through a program called Walls to Bridges that brings university professors and students into the prison to learn together with other incarcerated people. Before that program, I thought my academic career was over, that my life was basically over, but I was able to meet people who respected me as a person and supported me. I actually met my current doctoral supervisor through that program and was corresponding with her while I was incarcerated. I had people in university who were able to support me when I was released along with some other people in the Walls to Bridges community who provided a lot of social support and care, and that is an extremely rare thing for most criminalized people.
[Translation]
Senator Dupuis: Mr. Bawwab, can I ask you the same question?
[English]
Mr. Bawwab: In my experience, I finished my degree just prior to my mental health crisis, which may have been related to the stressors of the final year of university. When the crisis spiralled out of control, I was criminalized in the system. During my stay inside, I was in a manic state, which means I was not of sound mind, and the decisions I made to plead out led to a conviction; whereas if I was in the right state of mind, I may have had a fighting chance to overturn the charge, given the fact that I have evidence to suggest that I was under the influence of mental illness at the time of the conviction.
Once you graduate, and you have the hindrance of a criminal record, you can’t apply yourself in society. You can’t reintegrate. Having a 10-year-plus wait period leaves you in a destitute state.
I have had further experiences of mental health issues due to my inability to access gainful employment and supports. I have had housing issues; I’ve faced homelessness; and, I’ve been hospitalized. And this is all attributed to my inability to reintegrate into society due to the systemic barrier of a criminal record according to the current system.
I believe that Bill S-212 will finally give me a chance with a reduced wait time. The requirement that there be no new convictions versus having any interactions with the law would inhibit you under the current regime of receiving a pardon. Having no ability to reintegrate into society leaves you in a traumatized state and leaves you facing these barriers alone without supports.
The Chair: Thank you.
Senator D. Patterson: I would like to thank the witnesses and echo what Senator Clement said; that sharing your personal experiences with us is appreciated and respected.
I want to say that I am supportive of the bill. I come from a region with the highest majority of Indigenous people in the country by far. Whether it’s over-policing, as some would say, or the pervasive intergenerational trauma from residential schools, we have a very high proportion of citizens who have criminal records. They, in fact, are such a barrier to employment, for example, that whether someone has a criminal record or not is often overlooked by employers because otherwise they wouldn’t be able to find candidates. I’m very familiar with the issue.
I’m curious about one thing. Ms. Fayter and others have outlined how extensive these requests for criminal record checks are in their experience with respect to housing, education, employment. I know the bill is not about this but I wonder if you have any comments about whether there is justification for asking for criminal records in all these areas you have mentioned — housing, employment, education. Do you accept there may be valid reasons for asking for criminal records by such institutions? Maybe I could ask Ms. Fayter and Mr. Bawwab in particular if you are willing to make a comment on that.
Ms. Fayter: Thank you for that question. In terms of accessing housing, I don’t think there is any reason for a record check. I think that every human being has a fundamental human right to having shelter. I would also say that for education.
Now, in terms of employment, I recognize that there is some value in vulnerable sector screening. Right now, it is a bit difficult and maybe it needs to be looked at to change, but if people are working with young children or elderly people, then there does need to be some protections to ensure that they are not going to be vulnerable to violence.
That being said, I think the same is true for people who are working as police or prison guards because I have experienced violence at the hands of these people and have seen it many times, and they are still allowed to work in these institutions.
Mr. Bawwab: Thank you very much for your question. I would begin by saying that when it comes to certain fields of employment involving children or vulnerable persons, then the vulnerable sector check, which is what this bill also includes, is sufficient enough to vet people who may pose a risk to vulnerable persons.
When it comes to housing, I would like to echo what my colleague has said, that everyone deserves a right to have a home. Now, I’ve heard objections before when it comes to people with sexual offences, and whether they should be on a registry. That is already maintained. Whether they get a pardon or not, they’re still on the offender’s list in terms of risk to communities.
The bill fundamentally doesn’t take away from police information about persons. What it does is keeps the records separate with regard to employment opportunities, perhaps travelling to the United States, trying to gain housing and work opportunities or to further your education.
After my conviction, I tried to apply to further my education at the university, and I was told that because of my conviction, I’m banned from campus. There is a very real discriminatory process with having a criminal background check for even attending school. If you’re trying to do the right thing by re-educating yourself and reintegrating into society, there are many obstacles due to having a criminal record, according to the current system.
The Chair: Thank you, both. I have a brief question of my own. It’s for Ms. Salih.
Does your legal action centre deal with clients who have issues regarding trying to address their criminal records and achieve suspensions? We have heard from many people, including Ms. Fayter, that it’s a complex process, even for reasonably well-educated people who might be more familiar with the system. I’m curious about whether that shows up in the line of work you do and whether it, in some ways, adds to the administrative burden of the work in a clinic that probably has plenty of clients without this.
Ms. Salih: Thank you for the question. No, we don’t work directly with clients who are applying for criminal record suspensions, but what you are pointing to is accurate. I think that due to our capacity, we wouldn’t be able to do this work.
The Chair: Thank you very much.
[Translation]
Senator Boisvenu: Thank you very much to our witnesses. My question is for Ms. Fayter. You said something very interesting. You said that, for people who work with the elderly or children, the organizations that employ them should have access to information on the employees’ criminal history, especially if they are sexual predators.
In Canada, in almost every province, there’s Clare’s Law, so women who are involved with a man who is behaving violently can now go to the police and find out about these men’s history of violence to protect themselves and sometimes even save their lives.
This bill will now prevent police officers from giving out this information, as it will no longer be available. Do you still believe that this bill may endanger certain women or certain organizations, such as daycares, if this information is no longer available? I remind you that, contrary to what Mr. Bawwad said, for crimes of a sexual nature, pardons will be automatic; they won’t be in the system.
Ms. Fayter, could the bill be unsafe for people in daycares or women who have a relationship with a man with a history of violence?
[English]
Ms. Fayter: Thank you. I don’t know how much I can actually comment on that because I did not focus on that aspect of the bill. Obviously, children and people who are vulnerable, such as women, do need to be protected. I can’t really comment on that. I’m sorry.
Mr. Bawwab: I would like to jump in, if it’s possible, and make a correction here.
An automated pardon system, according to this bill, would not remove information that the police have on these kinds of people as it maintains the vulnerable sector check. There would be police information on people who were of that nature, as the senator has discussed or proposed.
People who have sexual offences or are predators would still be vetted by the police. The only thing this bill does is separate records from CPIC, which is only going to be seen by employers, at the border or people applying for housing or any other check. When it comes to police forces, they still have access to the information for investigative purposes.
Senator Pate: Thank you very much. Just to follow up on that question, I’m interested in information all of you may have from your research and experiences about the number of times that sexual offences are used to plea bargain for less serious penalties and whether you have looked at other options in terms of ways to ensure safety. I think of things like double staffing in child care centres, some of the ways that different institutions have looked at addressing this issue, recognizing the low rate of reporting, conviction and follow-up in these cases.
The Chair: Whoever would like to begin on this, please go ahead.
Mr. Bawwab: In terms of the vulnerable sector check, that’s the whole purpose of that part of this legislation. It is for vulnerable persons to be protected from people who have sexual offences. The fact of the low reporting of sexual offences, the prosecution of them may be minimal in the system as it currently stands, although there has to be further research done on this. There is a low recidivism rate of such offenders in comparison to people who have criminal records or not. I think we need to do more research on this part of the inquiry. The fact that the vulnerable sector check is there and information on such people is not inaccessible to the police, we have to emphasize this. That is how we protect people. There are other ways, as was suggested by the Honourable Senator Kim Pate, as well.
Senator Pate: I’m far older than each of you, but would it surprise you to know that my first contact with people serving federal sentences was actually in shelters, in homes for individuals with intellectual disabilities, seniors’ homes and the development of furniture and other activity centres for child care centres? We’re talking about the mid-1970s. Would that surprise any of you?
The Chair: None are old enough to know, I guess, Senator Pate.
Senator Pate: And the fact that in 1992, post-secondary education was provided and there were satellite campuses in most federal penitentiaries.
The Chair: I think that concludes our list of questions and answers and conversations with you. Let me also extend, on behalf of the whole committee, our appreciation for your joining us today and for sharing your personal stories. They are, I’m sure, difficult, and we are very, I hope, sensitive to and appreciative of you providing that context as we study this bill. It’s very much appreciated, and we want to thank you for joining us today and fielding our questions with such openness, frankness and honesty.
We will continue with our second panel, who are joining us to help us in our consideration of Bill S-212. In this panel, we are joined from the Vancouver Rape Relief and Women’s Shelter, Laurel McBride, Collective Member; and from the London Abused Women’s Centre, Jennifer Dunn, Executive Director. As you were informed, we’ll invite you each to speak for about five minutes, and following that we will engage with you in questions and conversations with the senators.
Laurel McBride, Collective Member, Vancouver Rape Relief and Women’s Shelter: Good afternoon, honourable senators. Thank you for the invitation to speak with you today. My name is Laurel McBride, and I’m a Collective Member and front-line worker with Vancouver Rape Relief and Women’s Shelter. I’m joining you today from the unceded territory of the Musqueam, Squamish and Tsleil-Waututh peoples.
We emphatically support the aim of Bill S-212 to promote community integration by removing barriers to essential needs such as housing and employment. In recognition of the class and race inequities that are rampant in our criminal legal system, the bill’s intention to shift the burden of obtaining record relief away from individuals who have been criminalized is laudable.
Reinforcing what others have raised, what we hear from women who have histories of criminalization is that they do not have the resources to navigate the cost and complexities of seeking a record suspension, and because of that, they do not get the benefit of it.
We are pleased to see a provision that will disallow the disclosure of convictions in criminal record checks for offences that are now decriminalized. Our Criminal Code, rightly, no longer — for the most part — criminalizes women who are in prostitution. However, as a result of our previous laws, many were unjustly saddled with criminal records that continue to interfere with their ability to exit the sex industry, find meaningful employment and contribute to their communities through volunteering. We are part of the Women’s Equality Coalition, and we have been calling for the expungement of all records of convictions under Criminal Code articles 210.1 and 213(1)(c), which have since been repealed.
When we examine the crisis of femicide in this country, it is clear that the state’s approach to violent men is faulty and leaves women vulnerable to homicide by their male partners. We agree with Senator Pate that criminal record checks alone will never be an effective means of protecting people from harm.
We see that time and time again, men are charged with assault and uttering threats and released back into the community with no meaningful oversight to ensure they do not make good on these threats. Last year, in B.C., five women were murdered by current or ex-male partners who were released on conditions to stay away from these women. These orders did not protect them. We desperately need robust mechanisms to ensure that women and their children are protected from men who pose grave risks to them.
Further, the state’s response to women who report incidences of sexual assault against them is abysmal. Less than 5% of sexual assault cases recorded by police in Canada result in a trial. Only 3.5% of sexual assault cases recorded by police in Canada result in a conviction of the perpetrator. It is evident that the state fails to hold men who choose to rape or sexually assault accountable in any genuine way, with women bearing the brunt of that decision.
We have long held the belief that men can change, that the misogyny that permeates our social relationships and institutions is not inherent and can be altered with sufficient political and individual will. The criminal legal system must be transformed to deliver justice, to deal with the frequency and pervasiveness of men’s violence and to finally send the message to those who would commit such acts against women that it will not be tolerated.
We appreciate that the bill makes an “exception to permanent and definitive expiry of records.” Women routinely tell us that their motivation for reporting a sexual assault to police is to protect other women from their attackers. They are told by the system that even if their efforts do not result in a conviction, it will not be in vain because the fact of his being investigated for sexual assault will be available to police should another woman report, too, and this may result in police taking a complaint more seriously knowing this is not the first time.
Issues of public safety are currently dominating the public discourse. While the causes of violence are complex and multifactorial, there are many public policy responses that can improve the lives of many Canadians and decrease the prevalence of violence in our society.
The implementation of a robust social safety net should include a guaranteed livable income; safe, affordable and long-term housing; on-demand voluntary substance-use treatment programs and mental health support; concrete support for and recognition of the rights of Indigenous women to parent their children; and, an end to the detention and deportation of migrants. A paradigm shift is needed in Canada. Our current austerity-minded policies trap people in poverty and often in criminality, rather than giving them a hand up.
With costs of essential goods rising at extraordinary rates, more and more are pushed into economic precarity. Programs that respond to their realities are not exorbitant luxuries that would be nice to have; they represent the minimum requirements for a healthy society that values everyone. Thank you.
The Chair: Thank you, Ms. McBride.
Ms. Dunn?
Jennifer Dunn, Executive Director, London Abused Women’s Centre: Thank you very much for this opportunity to speak before you today. I am the Executive Director of the London Abused Women’s Centre here in London, Ontario. We are a feminist organization that supports and advocates for personal, social and systemic change directed at ending male violence against women and girls. We are a non-residential organization that provides women and girls over the age of 12 who have been abused, assaulted, harassed, exploited, trafficked or who have experienced non-state torture with immediate access to long-term, trauma-informed, women-centred counselling, advocacy and support.
Overall, the London Abused Women’s Centre views Bill S-212 as a good tool for removing barriers to moving on after a criminal conviction. In November 2021, Honourable Senator Kim Pate said:
A criminal record is not a comprehensive portrait of a person; it is a snapshot of a moment — usually the worst — of their lives.
We believe this to be true.
I want to point out that, right now, we are very happy to see that sexual offences are not considered in Bill S-212. It has been identified by witnesses in previous meetings for this bill that our criminal justice system is extremely discriminatory, and we would agree. But we would also like to add that the criminal justice system is alarmingly patriarchal. We see it every single day. Usually we see on the ground that women suffer through the criminal justice system while men are given the benefit of the doubt. We have heard from women that sometimes their perpetrators are given every consideration, and they are left to feel as if what has happened to them does not matter.
Historically speaking, we know from our work, family courts and criminal courts do not typically work together. A lot of women are impacted by men’s criminal records not being considered in family court. The women we serve worry that an automatic record expiry might be harmful, especially in matters of family court.
Victims, often women, are serving life sentences because of the violence perpetrated against them. They rely on services like ours to help them when a traumatic event occurs. In the example of family court, you should know that London, Ontario, has two family court support workers who can help women navigate the system — two, in a city with a population of nearly half a million people.
Obviously, to have a criminal record, there has to be a conviction in the first place. Women have a hard time coming forward to report what has happened to them because it takes years to get to the point of a conviction, if there is one at all. At the end of the day, women who access our service want their perpetrators to be held accountable. Convictions are so rare, when there is one, that the record is important to perhaps show a pattern of behaviour, especially if used somewhere like family court.
We take a big position that Bill S-212 is a necessary tool for the removal of criminal records for those who were charged in the past with offences which are not criminalized now. An example would be a prostitution-related offence before the enactment of the Protection of Community and Exploited Persons Act in 2014. This is where we believe automatic expungements without an application or a fee would be of the utmost importance. There is a need to reduce barriers to reintegration into everyday life. Generally speaking, people should be able to contribute to their communities and have real opportunities. We know that criminal record checks are required for employment and volunteer positions. The disclosure of records showing involvement in the sex trade, for example, to potential employers can have adverse consequences and have unnecessary stigma attached.
In conclusion, the London Abused Women’s Centre would like to offer the following recommendations for consideration. One, the government will automatically expunge all records of convictions for those who were charged in the past with offences that are not criminalized now, specifically with regard to convictions before the enactment of the Protection of Communities and Exploited Persons Act in 2014. Two, the Government of Canada will invest in public awareness and education to address the systemic issues around male violence against women to aid in the prevention of violence against women resulting in the ability to have a criminal justice system where barriers are reduced for all. And, three, the Government of Canada will invest in organizations that support individuals with system navigation. Thank you.
The Chair: Thank you, Ms. Dunn. Thanks to both of you for your precise and timely and focused contributions to start our discussion.
[Translation]
Senator Boisvenu: I thank the witnesses for being here. Ms. Dunn, currently, criminal records for crimes of a sexual nature that appear in Schedule 1 of the Criminal Code are not eligible for a record suspension. Bill S-212 brings a radical change and from now on, the criminal record expiry for crimes listed in Schedule 1 will be automatically abolished.
Where in the bill did you read that crimes of a sexual nature are not affected by the abolition of pardons?
[English]
Ms. Dunn: Thank you for your question. I’m looking at my notes here, and I have a lot of highlighted pieces of information with all of the documents I’ve been reading around this bill.
I did read that because of the barriers to reporting sexual assault, Bill S-212 provides an exception to permanent expiry of records around sexual assault in Schedule 1 and Schedule 2.
It’s my understanding that sexual assault offences are off the table with regards to this bill. Perhaps I’m interpreting that wrong, but that was our understanding.
[Translation]
Senator Boisvenu: I think you’re right, you misinterpreted and the previous witness also misinterpreted the information. I think it’s a shame that you have partial knowledge of this bill.
My other question is for both witnesses. Currently, in cases of serious sexual violence against children, against women, especially in cases of repeat offences, it is impossible for people who have committed this type of crime to obtain a pardon.
Tomorrow, they will be able to obtain a pardon. The consequence of obtaining a pardon is that these people disappear completely from the police radar. For a police officer to have access to their record again, which will be kept by the Royal Canadian Mounted Police, a crime must be committed. If no crime is committed, the police officer will not have access to that record; this is the condition for reopening the record of a criminal who has been granted a pardon.
Do you consider it safe for women and children that a repeat offender and dangerous sexual predator can obtain a pardon and that this information would no longer be accessible to police officers?
[English]
Ms. McBride: Thank you for the question. I would reiterate what I said earlier about the lack of responsiveness of the criminal justice system to crimes of violence against women. The proportion of those who are criminalized is minute compared to the instances in our society. Our efforts should be on ensuring that all women are responded to appropriately and that there is no tolerance for crimes of violence against women. We really need to mobilize resources in the criminal legal system to respond effectively.
[Translation]
Senator Boisvenu: Some men have deviances that can never be cured. They must be under long-term or permanent control. Do you agree that, in our justice and public safety system, there should be a distinction between those who are dangerous and those who are not?
[English]
Ms. McBride: Thank you, senator. As I said in my initial remarks, we do believe that men are capable of change, that it’s not something that is inherent or immovable. It’s possible, and we should operate with the view that it is possible.
However, that also needs to be balanced with ensuring that women are protected. As I would reiterate from earlier, when women call the police, all too often they are not taken seriously; men are dismissed, they are put back into the community on the condition that they not contact those women without any meaningful way of ensuring that they’re following through on those orders. That’s where we so often see that women are murdered in those situations, where the criminal legal system is already engaged but not protecting women. That’s really important for us.
Senator Klyne: My questions are for both witnesses. In the second reading of Bill S-212, Senator Kim Pate stated that from a public safety perspective, it is more efficient for criminal records to simply expire after a certain amount of time passes. Can you please share your organization’s perspective on this?
Ms. Dunn: Thank you very much for the question. We have two sides to this answer, if that’s okay with you.
We believe that reintegration into society needs to be considered a priority, and there are not enough resources in the community through funding organizations and community programs. Everybody is fighting to keep their head above water. It’s really important for individuals who have been involved in the criminal justice system, who are vulnerable, to have fewer barriers when trying to access all sorts of things; accessing service to accessing the possibility of a pardon for their sentence. To have an automatic expiry for certain offences and no fees would be of the utmost importance.
That being said, I feel like — and this touches on my statement and what I said around our systems — still, to this day, in 2023, being very patriarchal, we’re not there yet. We’re not at a place where women are just going to be believed. Women have to go through a lot to get to the point of even reporting what has happened to them if that’s what they decide to do in the first place.
That’s one side of things. I mentioned specifically the Protection of Communities and Exploited Persons Act. Laurel McBride had mentioned sections 210 and 213 and the automatic expungement of those records. In that case, that would be of the utmost importance because those are not criminalized anymore. What is the point of having a criminal record for something that’s not even seen as being criminalized anymore? It’s only harmful.
Ms. McBride: I would echo a lot of what Ms. Dunn has already commented. We feel strongly about reintegration into the community and appreciate the spirit of the bill seeking to make that much more possible and removing a lot of the barriers that people who are trying to do that work have.
As I said in my opening remarks, we hear from women just how difficult it is once they’ve been criminalized not to have that hanging over their head. We appreciate the bill’s intention to shift the burden from the individual to the apparatus of the state. We do support that aspect of the bill.
Senator Klyne: Bill S-212 would facilitate the reintegration of criminal record holders into society once they’ve served their court sentences with the goal of allowing a near-normal return to life. Can your organization comment on this proposed objective and the impact it might have on the delivery of victim support services?
Ms. Dunn: Thank you for the question. I can speak about what we see based on our work every single day.
It is of the utmost importance to consider the value of — I’m going to speak about women in particular — women having no wrong door, if you will, women having every opportunity they can, fewer barriers, to reintegrate themselves into every day “normal” life. Women deserve wraparound supports. Women deserve education, access to health care, access to housing, guaranteed affordable income. Without those things, there’s a really high chance that women might have to do something that shouldn’t ever be a choice.
In the previous panel, I think a couple of witnesses touched on this as well. That would be the time when doing something that might result in a crime might happen. I think there’s such value here in the work that we do at the London Abused Women’s Centre supporting women where they’re at and with what they need. We see every day the benefits of that and the benefit to a woman who is vulnerable, living in poverty and can’t make basic needs or requires them to make it through the day, of a meal. The benefit of that is so great.
When you’re talking about something like what we’re talking about now, in the big picture, having every possible opportunity for reintegration and becoming part of society and community again are really important.
The Chair: Thank you very much.
Senator Pate: Thank you to both of our witnesses, and thank you for the work you do every day. My question is for both of you. It’s one of the issues that you raised, Ms. Dunn, when you appeared before the House of Commons Standing Committee on Justice and Human Rights, speaking about mandatory minimum penalties, and you alluded to it today as well. There is often an issue in terms of potential miscarriages of justice when we look at the ways that women respond to violence perpetrated against them.
Are either of you comfortable commenting on the nature of mandatory charging and gender-based violence and inter-partner violence and violence against women? Has the focus on mandatory charging resulted in an increased criminalization of women? Do you see criminal records potentially exacerbating the situations of violence that women find themselves in?
Ms. McBride: Thank you, Senator Pate. With respect to mandatory charging, I think you’re referring to women who are being abused and who are charged in the process of experiencing that violence themselves. We certainly do see instances where that has occurred. It’s not something we see with great frequency. As I said earlier, mostly, we see very few charges as it relates to violence against women. Certainly, there are charges against the men, but we do have examples of women being charged themselves for reporting violence or having the police called on them.
I don’t know that I would have anything conclusive as it relates to mandatory charging policies or criminal records themselves.
The women we work with have criminal records for all sorts of crimes, often relating to poverty. As Ms. Dunn and earlier witnesses have indicated, being in the sex industry and prostitution has meant that women have incurred criminal records themselves.
The Chair: Thank you. Ms. Dunn?
Ms. Dunn: Thank you very much for the question, Senator Pate. I feel like, for me, this will be another one of those answers that has two sides. And I feel like a bit of a broken record here when I speak about how our system is still very patriarchal.
It’s easy to say, for the women we serve, that when they are charged or have a criminal record, we see value in what we are talking about now — an automatic record expiry and things like that and reintegration into the community.
With regard to mandatory charge policies — sorry, I am all over the place — I agree with Ms. McBride. We don’t often see, in our centre, women having been charged in domestic violence situations. It’s often men who are charged, but that’s not to say it doesn’t happen. I can think of a situation right now where a woman was charged. Because our system is still so patriarchal, it’s very difficult for these women. It often does not make sense that a woman is charged.
But the value of having reintegration and the supports — I think I mentioned it before that the “no wrong door” approach and wraparound services for these women are of the utmost importance.
The Chair: Thank you, Ms. Dunn.
Senator Pate: I want to clarify. My apologies to my colleagues and to the witnesses. This is now the third or fourth iteration of this bill. While the vulnerable-sector check is not explicitly in this bill, it did come about as a result of twice putting it in the bill. We heard criticism from women’s groups and other groups working with individuals in the system that a false sense of security would be created by focusing on that alone. We focused on ensuring that there is a crime-free period. There are also the reporting and the concerns if people falsely claim they have not been involved in prior behaviour. That can be brought forward. I wanted to clarify that for the record.
The Chair: It was sort of a rhetorical question.
[Translation]
Senator Dupuis: I thank both witnesses. I’d like to make sure I understand what you’re both saying, in different ways.
Based on your experience with women, in real-life situations, in your two organizations, you’ve met women who are victims of violence and you’ve also met women who have been criminalized, but not for violent crimes.
Something strikes me about your two pieces of testimony. I don’t think you’re alone, Ms. Dunn, in saying that the criminal justice system is patriarchal and discriminates against women. We see it in every corner of the country. What strikes me in your testimony is the reasons why women come to you. I think I heard that those who come to you for crimes of violence against them are the majority, and when criminalized women come to you, they are not guilty of violent crimes. Have I understood you correctly?
[English]
Ms. McBride: Thank you for the question, senator. Our mandate is to support women who are victims of male violence. That’s the primary work that we do. However, the women we work with are often targeted by multiple forces. One of those is violence by the hands of men, but also poverty, racism, colonialism. All of these factors colliding mean that she may be criminalized herself. We support women from a variety of backgrounds, including women who have their own histories of criminalization.
Ms. Dunn: Thank you for the question. My comment would be almost identical to Ms. McBride’s. We mostly support women who have experienced male violence, abuse, assault, harassment; women who have been trafficked and exploited as well. But we do support women who might have a criminal record as well, but, you’re right, those records are mostly for nonviolent offences.
We also support women while they are incarcerated. One of our advocate counselors goes out once every single week to the Elgin-Middlesex Detention Centre to support women there. I hope that answers your question.
Senator Clement: I want to thank you both for appearing today. I want to thank you for your careers and the work that you do. I must say that your eloquence is quite beautiful. You both paint pictures in ways that are very clear. I appreciate that. Thank you.
I want to ask Ms. McBride in particular, because in your opening statement you talked about how we are talking about public safety a lot, from a law and order perspective, but not sufficiently about poverty issues, housing issues and then those issues as well. It seems to me that you’re supportive of an automatic process, a record expiry process and you use the words shifting the burden from the individual to the apparatus of government. I want you to lean into that bit more. What’s being proposed is that the National Parole Board would take on this automatic expiry. But we heard from previous witnesses that there is systemic discrimination within these institutions. Who is best, do you see, for operationalizing this bill? Who is best to do the work of the automatic expiry ensuring that it happens?
Ms. McBride: Thank you, Senator Clement.
From my position it’s a bit difficult to say who would be best positioned to oversee and implement the automatic record expiry. I think the previous panel witnesses might have a bit more expertise in that area. But what I did pick up from that conversation was, as you indicated as well, the biases that are baked into that system. I think having, as Ms. Fayter said, a diversity of people who are on that panel including civilians could be helpful to counteract some of the challenges that have arisen in the previous iterations of administering the record suspensions.
Senator Clement: Going back to your opening statement, how should we shift the conversation from the law-and-order-public-safety focus? How should we help other issues take up more space?
Ms. McBride: That’s a great question. It’s something we talk about a lot, and are always trying to infuse into any of the public education work that we do. Alongside fighting male violence against women and the patriarchal aspects of the system that Ms. Dunn has spoken to, we need to enhance our social safety net. Canadians need more. It’s apparent that we have so many people without housing, women in our transition house are struggling to find a place to live after escaping a violent male partner. The income assistance system does not provide for the essentials of life, so women and their children are left destitute in having to scrape together the resources to provide for themselves. We can’t tolerate that. I think when we talk about public safety, we need to think about safety in a really holistic sense, which provides for the essentials of life.
Thank you.
Senator Clement: Ms. Dunn, do you have any reaction or comment to anything that has been said?
Ms. Dunn: Thank you very much. I do have one comment. I feel I can’t really speak to the National Parole Board versus another organization taking this on. I can’t speak to that.
I do want to suggest that perhaps, and this would be municipally speaking, so I don’t know how this would work, so this may be off base, but having an advisory committee of community organizations on the ground — perhaps helping to review policies and procedures with regard to automatic expiries of records — might be helpful. I know that here in London, for example, there is a sexual assault case review committee that works with the police and helps review sexual assault cases as they come forward. That’s kind of where I was going with this. Whether that’s something that’s possible is beyond the scope of what I would know. But I feel like when you have the voices of women with lived experience, or those with lived experience, that’s always beneficial. I think it would be very helpful when looking at how this system would roll out.
Senator Clement: You both are wonderful. Thank you.
The Chair: I have one brief question. I wonder if each of you can speak to the issue of whether there are, or ought to be, boundaries with respect to the automatic revocation process. Are there certain types of offences, in your view, that ought to be off limits to the process that this bill would achieve? Without even speaking to what the bill does or doesn’t do, based on the line of work you do and the work you do on behalf of significantly vulnerable communities, how do you think through that question? Maybe Ms. McBride first and then Ms. Dunn.
Ms. McBride: Thank you, senator. We do think that there is value in having the vulnerable sectors check be accurate when we’re considering employment that works with people who are vulnerable, whether it’s children, or in care homes, in hospitals.
But I would say once again and, as Senator Pate alluded to, the false sense of security, that although there may be that check done, it doesn’t necessarily pick up everyone who has committed those crimes, only those who have been convicted of such. It’s not representative of those who have histories of violence or who might be a risk to the population.
Thank you.
The Chair: Ms. Dunn.
Ms. Dunn: Thank you very much for the question. My answer is going to be a little bit different than Ms. McBride’s. I would suggest that based on how our system is set up right now, and based on the fact that it is so difficult for women, young women, to come forward to report a sexual assault, for example, I would suggest that sexual offences should be off the table with regard to automatic expiry.
I think that having maybe an application process where there is a view of a bigger picture would be beneficial. That’s how I would like to answer that question.
The Chair: Thank you very much.
[Translation]
Senator Boisvenu: Once again, I thank our two guests.
My question is for both witnesses. Are you familiar with Clare’s Law?
Clare’s Law states that a woman who engages in an emotional relationship with a man who behaves violently has the right to go to a police force and to learn about the man’s history to save her life.
If this bill is passed, women will no longer have access to that information. Do you agree with putting these women at risk by not giving them that means of protection?
[English]
Ms. McBride: Apologies. There was a delay in the translation and I thought you were done earlier. I will answer your question now. I don’t live in a province where Clair’s law has been implemented. I can speak to what I understand about the mechanism. I believe it could be helpful in some situations. However, we would really reiterate that our emphasis is on ensuring that women who call the police have a proactive response from them and that the court, institutes, protective measures to ensure that those men are not able to reoffend while under condition that women need the protection of the state in that particular regard and that something like knowing a man’s history doesn’t necessarily protect women. Our emphasis would be a little bit different. Thank you.
Ms. Dunn: First of all, thank you for the question. I would agree with Ms. McBride, but I do think that based on where we are today and how our systems are set up, it’s really important that the safety of women and girls is protected. Now, a record of something, a piece of paper, a condition is not necessarily going to stop a perpetrator from doing something. We’ve seen that so many times. In instances of having a condition where an accused person is not supposed to be within a certain amount of geographical area as a victim, and we’ve had a woman receive a text message from her abuser saying they were in the parking lot while they were accessing service here. Those types of things don’t actually do anything. But for a woman to know or to be informed of what has happened and stay on top of charges and convictions and things like that, it is important. We’re not in a position yet in our system where we can trust that what is being done is in the best interests of women and girls, unfortunately.
Sometimes we do see that the best predictor of future behaviour is past behaviour, unfortunately. That’s where we sit today and how it is right now. At the same time, we do agree that proper supports, resources and opportunities would help overcome those types of barriers.
Senator Pate: It’s my understanding that both of your organizations also work in particular with Indigenous and other racialized women. I say that because, as you may know, the rates of incarceration and criminalization of racialized women are on the rise. I’m curious as to how many of the women you work with who come for supports because they have been victimized are racialized and also have criminal records, if you know.
Ms. Dunn: I can start if that’s okay. Thank you very much, Senator Pate. I don’t have any numbers off the top of my head to present to you, but through the clerk I can provide the committee with some statistics from our agency if that would be helpful.
Senator Pate: Great, thank you.
Ms. McBride: Thank you for the question. I too do not have the numbers off the top of my head, but I would say that a large number of the women that we work with are Black, Indigenous or otherwise racialized. In particular, for the women who use our transition house, they are the women who have the least resources in the world, and really rely on the existence of our transition house and other such community resources to be able to flee a violent man and establish themselves independently in the community.
We don’t have much in the way of records as it relates to also being criminalized themselves, unfortunately.
Senator Pate: Just to clarify and I probably should have articulated this a little more clearly: Would you refuse a woman service because she had a criminal record, even if it’s for a violent offence?
Ms. McBride: No.
Ms. Dunn: Absolutely not.
Ms. McBride: We’re both on the same page there.
Senator Pate: Thank you.
The Chair: I think that concludes the questioning. I want to extend on behalf of the committee my thanks, Ms. McBride and Ms. Dunn, for joining us and for being so precise, articulate and helpful in both of your presentations and in response to our questions. It’s an important bill and study we are undertaking and you have assisted us greatly today.
Senators, that concludes our discussion with respect to today’s consideration of Bill S-212. Let me remind you that next week we will turn our mind to Bill S-12, sponsored by Senator Busson, and we will be receiving the Minister of Justice, the Honourable David Lametti, to be in those deliberations. With that, I will bring the meeting to a close. Thank you for your contributions today.
(The committee adjourned.)