THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, February 16, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:31 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, and to examine and report on the matter of self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law, including in relation to section 33.1 of the Criminal Code.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Let us begin the meeting. I would ask senators to introduce themselves starting at my left.
Senator Dupuis: Renée Dupuis, independent senator from the senatorial division of The Laurentides, Quebec.
[English]
Senator Klyne: Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: Pierre Dalphond from Lorimier, Quebec.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Pate: Kim Pate from here, the unceded unsurrendered territory of the Algonquin Anishinaabe.
The Chair: I’m Brett Cotter, Chair of the committee and senator for Saskatchewan. 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.
We welcome three witnesses today. Joining us by video conference this morning we have, from the John Howard Society of Canada, Catherine Latimer, Executive Director; Samantha McAleese, Adjunct Research Professor and Instructor, Department of Sociology, Carleton University, as an individual; and, from the Canadian Civil Liberties Association, Laura Berger, Staff Lawyer.
Senators we’ll spend approximately an hour in this dialogue and then turn to a discussion of the extreme intoxication legislation. For each of the witnesses, just a reminder that you have about five minutes to make your presentations and then we’ll hear from all three of you. That will be followed by a round or rounds of questions from the senators.
I invite you to begin, Ms. Latimer.
Catherine Latimer, Executive Director, John Howard Society of Canada: Thank you, Senator Cotter. It’s a pleasure to be here this morning. We’re grateful for the opportunity to share with you the perspective of the John Howard Society of Canada on Bill S-212.
As you probably know, the John Howard Society is a charity committed to effective, just, and humane responses to the causes and consequences of crime in promoting public safety by supporting the safe reintegration of formerly incarcerated people into our communities. We know the barriers posed by spent criminal records to those who are leading crime-free lives.
We’ve done a lot of research on this. We’ve received some funding from the Canadian Bar Association. Years ago we did some consultations for public safety, and we have some pretty strong ideas about how this could be fixed. We appreciate Senator Pate’s bill, which endeavours to reduce the act of discrimination in housing, employment and engagement in community experience by those who have fully discharged the sentences for their criminal acts and live for many years after as law-abiding members of our communities. We agree that protecting people from this form of discrimination should be done through an operation of law without expensive fees, complicated application procedures and arbitrary results.
We are very concerned about having an effective regime for the relief of criminal records. Once the records have been suspended, pardoned, or whatever term is used, then the Canadian Human Rights Act and human rights codes across the country provide relief from discrimination in key sectors. There can be little doubt that it is the impoverished and marginalized who often meet the criteria for relief but don’t have the funds or the know-how to apply who loses out now. We hope Parliament’s collaboration on the federal framework to reduce recidivism will include removing unnecessary discrimination against those who have demonstrated the commitment to live crime-free. This law reform would also support the Indigenous and Black criminal justice strategies.
Limiting access to criminal records through statutory processes has been successfully implemented as part of the youth justice system in Canada for decades. We have a precedent. We believe that some amendments to Bill S-212 could address concerns about efficient processes, resources and public safety. I’ve got four of those.
First, the RCMP, through the Canadian Police Information Centre, otherwise known as CPIC, should administer the criminal records regime. The statutory guidance should be clear on who has access to criminal records and for how long. If a person commits a further crime prior to the expiry of the crime-free period, the file remains accessible until the new sentence and the new crime-free period have been completed. There is no need for a review by the Parole Board of Canada. If the person commits a sequence offence, then they’ve lost eligibility.
Second, local police forces should be precluded from sharing criminal records for other than investigative purposes unless the crime has been registered with CPIC. Once a CPIC record, it can be shared for criminal record checks, employment purposes, et cetera, if it’s still an active criminal record according to CPIC.
Third, once the sentence is complete and the crime-free period has been reached, the record is closed and the police are prohibited from sharing any information about the criminal record, except for investigative and administration of justice purposes.
Fourth, if the person commits a crime after the period has been closed, then it is reopened. It can only be closed again once the sentence has been completed and the subsequent crime-free period has been completed. This proposed record management regime does not change the vulnerable sector registry.
In conclusion, the John Howard Society of Canada supports the direction of Bill S-212. For us, the primary objective is to relieve those who have completed their sentences and demonstrated a commitment to successful reintegration from the barriers posed by a spent criminal record. A statute-based system that closes criminal records of those who qualify without an expensive and complex application process is a much fairer and efficient approach. Provisions could be made to the statute to ensure that access to criminal records for investigative and legitimate justice purposes could be preserved. Thank you very much.
The Chair: Thank you, Ms. Latimer. Ms. McAleese, please go ahead.
Samantha McAleese, Adjunct Research Professor and Instructor, Department of Sociology, Carleton University, as an individual: Hello, everyone, and thank you for inviting me here today. I want to extend appreciation to Senator Pate for her persistence in putting forward these much-needed reforms to the Criminal Records Act.
I’m joining you from the unceded, unsurrendered territory of the Algonquin Nation, and I voice this land acknowledgement not as a passing formality but as a way to pause and reflect on the historical and ongoing harms inflicted on Indigenous peoples and communities through the various institutions and processes that make up the criminal legal system in Canada.
I also want to acknowledge that we’re in the middle of Black History Month. As we recognize and celebrate Black excellence and accomplishment, we must remain aware that Black people in communities are also disproportionately and deeply impacted by surveillance, policing, punishment, incarceration and criminalization.
Next, I want to tell you a bit about me. I recently completed my PhD in Sociology at Carleton University, where I was awarded a Senate medal for my research on the collateral consequences of punishment in Canada. My dissertation examined how front-line workers in the non-profit sector strive and struggle to support people with criminal records in their community. That research was motivated by my own experiences working in the sector during a period in which many punitive policies were enacted by the federal government. Within the dissertation, I reflect on a decade of advocacy around criminal records, which includes working with organizations like the John Howard Society of Canada; with legal professionals who have led successful constitutional challenges against the records suspension regime; and most recently, the Fresh Start Coalition, a group of more than 85 organizations and individuals from across Canada who support the implementation of an automatic spent record process.
I also come to this space as a board member of the St. Leonard’s Society of Canada, a co-chair of Ottawa’s Community Adult Justice Network, an adjunct research professor and contract instructor at Carleton University, a part-time instructor at Saint Mary’s University and as an individual who continues to advocate for an overhaul to the Criminal Records Act.
With the rest of my time, I wish to bring into this space the words of those who have trusted me over the years to mobilize their experiences to the people who have the power to make change.
I’ll start with Sabrina.
When I worked on the front line at the John Howard Society of Ottawa, Sabrina was the first person I supported in successfully receiving a pardon. She needed to have her record cleared to complete her field placement and finish her training to become a nurse. Sabrina felt lucky that she was able to receive her pardon before the changes were made to the Criminal Records Act in 2012. In preparation for a public forum that I planned alongside other advocates, academics and people with lived experience in reaction to these changes, Sabrina wrote this:
Past mistakes don’t determine who you are. We only live one life and sometimes make the wrong choices, but we shouldn’t be condemned forever because of them. Life is hard enough as it is, and when trying to build a better life, we should be supported instead of being thrown under the bus.
Sabrina’s words continue to resonate with me, as they capture the structural violence experienced by people with criminal records. The lingering burden of a criminal record is layered with the administrative burden of the record-suspension application process that prevents many from building a better life.
In my interviews with other front-line workers, they detailed the very real impacts of the current system, using words and phrases like “discouraging,” “a slap in the face,” “depressed,” “hopelessness,” “demoralizing” and “just another knife in the wound.” There is a sense that people are being held hostage by their community and like they will never break free; they describe it as a nightmare.
I talked to housing workers who can’t get people housed, employment workers who can’t find people jobs and crisis counsellors who are finding it harder and harder to lift people out of a state of struggle. For those reasons and so many others, I fully support the automatic process outlined in this bill and the opportunities it will provide to so many people to get out from under the bus.
The current regime facilitates discrimination and exclusion, and this bill offers an important solution to this harmful reality.
Thank you.
The Chair: Thank you, Dr. McAleese.
Ms. Berger, please go ahead.
[Translation]
Laura Berger, Staff Lawyer, Canadian Civil Liberties Association: Thank you, chair. Hello everyone.
My name is Laura Berger and I am a lawyer at the Canadian Civil Liberties Association. I am pleased to take part in today’s discussions. The majority of my comments will be in English, but I will be happy to answer your questions in both official languages.
The Canadian Civil Liberties Association is one of the founding members of the Fresh Start Coalition, which brings together over 85 groups across Canada to advocate for meaningful reforms to the Criminal Records Act. The coalition includes organizations that work on combatting poverty, mental illness, homelessness and gender-based violence.
[English]
What all of these groups have seen firsthand is that our current approach to criminal records creates unjust and unnecessary barriers for the Canadians they work with.
Let me say that I really believe this committee has a remarkable opportunity in considering Bill S-212. The Canadian Civil Liberties Association, otherwise known as the CCLA, believes that changing how Canada administers criminal records would have a transformative impact on individuals and communities. Introducing an automatic system for records expiry would immediately combat systemic discrimination within the justice system, labour market, housing market and beyond.
I think everyone who comes to this issue can agree on the basic values that should animate our justice system. When a person is found guilty of an offence, our system strives to deliver fair, proportionate sentences. Then, once individuals have completed their sentences, the key goals of the law governing criminal records should be to support effective reintegration, rehabilitation and community safety while combating systemic discrimination in the justice system.
Based on a rigorous review of the social science evidence, there are four key elements that we believe should be central to any amendments to the Criminal Records Act. First, it should be an automated system. As you’ve heard, the application-based system is complex to navigate, and it is inaccessible to the most marginalized groups of people. Second, we would put the focus on a lack of new convictions as the eligibility criterion. Anybody who has finished their sentence and completed the waiting period without new convictions should be eligible for a record suspension. It’s not a perfect criterion, but we’re concerned that other possible considerations, such as requiring no police contact, would entrench systemic discrimination and have a disproportionate impact on individuals from communities already heavily surveilled and policed. Third, we absolutely support shortened wait times. We support lowering the time frames, and we also support ensuring that a failure to pay a fine or another minor administrative portion of a sentence does not reset the clock on the waiting period.
Finally, we support a legislative scheme where all categories and types of convictions would be eligible for an automatic record suspension. The evidence supports including all types of offences in an automatic system, and that’s because the evidence doesn’t suggest that any particular category of offence poses greater risks of recidivism.
I’m happy to provide more details about any of those individual items, but I thought it would be helpful to give an overview of the position taken by the Canadian Civil Liberties Association. I look forward to answering any questions the committee may have.
The Chair: Thank you, Ms. Berger. We will now go to questions.
Senator Pate: Thank you to all of our witnesses for appearing here and for your lifetimes of work in this area.
If you have more information such as each of you have already provided that you haven’t provided to the committee, I would request respectfully that you send that in as soon as possible. That would be extremely helpful.
My first question is for Ms. Latimer. As someone who worked in the Department of Justice as a justice lawyer and helped lead the development of the Youth Criminal Justice Act, or the YCJA, I’m very interested to hear if you’ve actually crafted some legislative provisions around the recommendations that you made. If it’s possible, could you elaborate on those and also make them available to the committee?
Ms. Latimer: I’d be happy to do that, Senator Pate.
The biggest change that I would want to see, to make the regime in your bill more effective, is to take the Parole Board out of play. Once the criteria are met, and it should be clear-cut, has there been a subsequent conviction? We have found with the youth justice system that the managers of the CPIC system are very efficient at administering the regime and the access which, to me, is critical; who gets access to that criminal record is usually done through police forces who have significant access to CPIC.
The real damage to people’s employment prospects and educational opportunities and whatnot is through criminal record checks administered by police. I think police are the right way to go, the CPIC managers at the RCMP, rather than the paroling authorities who are used to working within the administration of a sentence, or interfering with a judicial determination for the Royal Prerogative of Mercy. This is not the same thing. The person’s criminal accountability has already been discharged, and I think they have the wrong mindset to do this effectively.
Senator Pate: For my colleagues who may not be aware of the mechanics of how the YCJA works, can you elaborate on how you develop that?
Ms. Latimer: It’s a more complicated system, because we try to protect the privacy rights of young people throughout. There’s a lot of definition throughout about who has access to records, and what constitutes a record. There are a lot of records. There are police records, court records, correctional records and you name it. It is more of an elaborate regime, but it controls access. What it does is it controls access. It’s essentially the same as yours.
Once the crime-free period has been reached, after the sentence has been completed, basically, the criminal record is sequestered in the CPIC file and nobody has any more access to it. It can’t be used in a prejudicial way against the young person. If there is a subsequent offence, that record is opened again. It would be there for sentencing purposes, or whatever seems to be necessary if there’s a subsequent conviction.
Senator Pate: It probably will surprise no one that, in fact, this bill was modelled on that process. It was the recommendations of the lawyers who were advising us that it go to the Parole Board, so I’m very interested to hear that.
I would be interested to hear from Dr. McAleese. Congratulations on your PhD, I haven’t seen you since you were awarded that, and for the medal as well.
Ms. McAleese: Thank you.
Senator Pate: Also, to the CCLA, what are your thoughts on the proposal that Ms. Latimer made?
Ms. McAleese: Yes. I can go first. Thank you for the question.
I agree with the position that the John Howard Society of Canada has put forward.
I talked briefly in my comments about the impact of the administrative burden on people who have criminal records. Any way that we can reduce that administrative burden is welcome, and to streamline a process so that people, again, are able to move forward with their lives after their formal punishment has been served.
A reminder, we’re talking about people who have served their punishment, so anything to reduce that friction, eliminate that friction actually, would be a welcome change to the bill.
The Chair: Ms. Berger, briefly, your response.
Ms. Berger: That’s not a proposal we’ve considered.
I would say our feeling is that opportunities for discretion within the system can lead to tangles for individuals. We support a system where the ceiling or the setting aside of the record is as automatic as possible.
The Chair: Thank you.
Senator Dalphond: Thank you to the members of the panel. This is very interesting.
My question would be addressed to Ms. Latimer. Can you elaborate more about the CPIC system that you referred to? You said remove that away from the commission, because these people have a different task to fulfill and they are not properly aligned to understand the purpose of what we’re trying to achieve here; in addition to that, it’s cumbersome, complex, takes time and everything else. You propose to leave it to the RCMP essentially to monitor it.
Could you explain more?
Ms. Latimer: Sure.
Senator Dalphond: What would be the result of it? Yesterday I was puzzled. I want to make a distinction between having access to proper lodging, employment, discrimination and all that, and police inquiry and police investigations.
For me, these are separate fields. I’m concerned it would prevent the police from doing their work properly because they don’t have access to some information anymore.
Ms. Latimer: Yes, that’s a legitimate concern.
The CPIC files are basically the fingerprint files. They identify people based on fingerprints. They’re an accurate record of criminal activity. They can be easily updated and monitored if there are subsequent criminal convictions.
A concern that local police forces will raise is that not all of the convictions are in the CPIC file.
My view is if the local police force wants to be able to share those criminal records for other than investigative and policing reasons, then they need to share them with CPIC. They need to send them to CPIC and get them in the bank.
Once they’re in the bank, there are strict rules about who can have access and for how long. These are professional record managers. The RCMP, if nothing, are can-do people. They can do this. They will track. If there’s another conviction, then they will extend the necessary crime-free period, the sentence and the crime-free period. They will put a tag on the file as to when it can be closed with every iteration.
To require the Parole Board to do an investigation, if there’s been a subsequent offence, doesn’t make a lot of sense to me. For some people, it takes a little while for them to get out of their crime cycles.
The problem with the Criminal Records Act, the way it is now, is it is damaging for those people who are leading crime-free lives. They have turned their lives around. They can’t get out from under this criminal record.
The people who are criminally active, nobody wants other than there to be a just, fair and proportionate response to their criminal activity. You don’t want to necessarily conceal important information from police, or from the criminal justice system.
The statutory regime that you can put in place could ensure that those legitimate purposes are protected, while at the same time ensuring that information that could affect future employment, educational opportunities or volunteering in your community are not shared and that people can get beyond their criminal record and continue to lead crime-free lives and be contributing members of our community.
[Translation]
Senator Boisvenu: I want to thank the three witnesses for being here.
I would have liked to hear the three of you say a few words about the victims. In the debate we are having here, I think we have completely forgotten the victims who are behind all these people who were convicted.
Ms. Latimer, you know that Senator Pate’s bill would allow reoffending pedophiles to get their record suspended after a five-year waiting period. We know that pedophilia cannot be cured, only contained.
Do you not think that having pedophiles who reoffended more than once... Pedophiles’ records could fall under the radar of the police because it is important to understand, as I explained yesterday, that when a person gets a pardon under the current system, as in the system Senator Pate is proposing, criminal records can no longer be accessed by patrol officers. The RCMP needs to get involved to authorize access to the records. If a crime is committed, Senator Pate’s approach would eliminate any preventive work done by the police. That is the first flaw.
In the case of criminals such as pedophiles, do you not think that applying this automatic pardon system after a period of three or five years will make that record disappear from the Canadian Police Information Centre, because it will become a confidential RCMP record, which will put children’s lives at risk?
[English]
Ms. Latimer: I think we’re all concerned about the safety of children and ensuring they’re adequately protected. I think there is a lot of misinformation about the recidivism rates for sex offending, but I won’t go into that. I think the witness yesterday said it was a 7% recidivism rate, which is pretty low. The Correctional Service of Canada, otherwise referred to as CSC, has a 23% recidivism rate generally and often higher.
I think that there is a public safety element that should allow police officers to have information for investigative purposes easily accessible to them. My concern is the police sharing information after the person has demonstrated a significant amount of crime-free behaviour in ways that will jeopardize their housing, their placement in a seniors’ home and a variety of other things. But I take your example yesterday if somebody complains that a car is continually being parked by a —
[Translation]
Senator Boisvenu: Ms. Latimer, I would like us to stick to police work. I understand that the housing situation, as Senator Dalphond said earlier, is problematic. I would like to talk about police work. Police officers currently have access to the pardon record if a crime has been committed. I am talking about prevention here. A police officer on patrol who sees a car lurking around an elementary school or a child care centre will take note of the licence plate number to try to see whether the individual has a criminal record. If the individual obtained a pardon, the information will no longer be available to the police officer.
I will repeat the question: if that is the case in Senator Pate’s bill, do you not think that we should exclude sex offenders, pedophiles who have reoffended multiple times, from this measure?
[English]
Ms. Latimer: I was proposing that files not be expunged but be held in a separate department in CPIC. My view is they should be held generally accessible to local police and others. The protection should be sharing that information with housing authorities and a variety of other things. The function should be to limit the access to the information, but you can have a statutory regime that ensures the police continue to have access to the information that they need to provide effective crime-prevention services.
[Translation]
Senator Boisvenu: In Quebec, there are 24 police forces. In anglophone provinces, there is one police force: the RCMP. We need to ensure that the information is available to police officers even if an offender obtained a pardon, at least in the case of serious crimes against children, don’t you think?
[English]
Ms. Latimer: I think that relevant information for investigative and justice purposes should be made available to law enforcement authorities but that there should be restrictions on whom they can share that with.
Senator Klyne: Welcome to our guests and thank you for your opening remarks. My first question is for Dr. McAleese. You stated to the media — and I paraphrase here — that Canada should move toward a free and automatic spent record model whereby criminal records should expire if individuals have successfully completed their sentence and lived in the community for years without new criminal convictions.
You’re reported in the media discussing how free and automatic pardons are effective in jurisdictions like the United Kingdom and Canada’s youth justice system. During the second reading of this bill, Senator Pate made reference to automatic forms of record expiry in France, Germany and New Zealand, as well. Dr. McAleese, can you briefly reference studies, evidence and precedents from other countries on both the effectiveness and disadvantages of automatically expiring records?
Ms. McAleese: What I can do is make a note to send you that information. It’s definitely information and research that is cited throughout my dissertation pointing to what work has been done in other jurisdictions. I’m happy to send you the information that I have about that.
Senator Klyne: Sure. If you could do that through the clerk, that would be great.
This question is for Ms. Berger and the Canadian Civil Liberties Association. The CCLA called on the federal government to implement a spent regime that would automatically seal a person’s criminal record if they have successfully completed their sentence and lived in the community without further criminal convictions. In a November 17, 2021, press release from the Fresh Start Coalition, the CCLA alluded to how this regime would promote reintegration and workforce participation and improve community safety.
Schedule 1 of the Criminal Records Act lists very serious offences, including sexual offences involving children and human trafficking. In your view, should offenders who have completed offences for schedule 1 offences and lived in the community without further criminal convictions still be entitled to have their criminal record expired or should they be subject to an alternate process for serious crimes? What research, evidence, precedents and policy considerations inform your view on this?
Ms. Berger: Thank you so much for those questions. Absolutely, in these discussions we often hear suggestions of a two-tier system where certain less serious offences would be subject to an automatic record suspension or expiry system, whereas other offences would require an application.
Let me explain, briefly, why we feel that there should be one automatic system for all offences.
In Canada, at the point of sentencing we have an individualized sentencing regime that takes into account the blameworthiness of the individual and the circumstances of the offence. We know that many offences in the Criminal Code can capture an incredibly wide range of conduct. That’s why mandatory minimum penalties are so problematic and are sometimes struck down by the courts because the same offence in the Criminal Code can capture situations that are relatively less serious and can run the gamut to much more serious, blameworthy, harmful conduct.
At the point of sentencing, we have judges who determine how long or how serious a sentence needs to be and that is tailored to the individual. Once the individual has served their sentence, they have paid their debt to society and they’ve spent several years crime free in the community, we don’t think there is a justification for treating different offences differently because, again, that individualization has taken place at the point of sentencing.
It’s also really interesting to note that when we look at the social science evidence, there is no evidence that particular categories of offences or types of offences lead to more recidivism. Across the board, it seems to be the case that, as time goes by, there’s less chance of reoffending. That is, there’s less chance that someone will commit a new substantive criminal offence. That’s true of all different categories. When we’ve spoken to criminologists and looked at the evidence, it’s not the case that, for instance, all violent offences have higher risks of recidivism.
What we do know is that one of the strongest protective factors against reoffending is having a job, finding stable housing and having those pro-social contacts and connections in the community. Removing the barrier that a criminal record poses and supporting someone to reintegrate into the community, to find a way of supporting themselves, to foster those connections, is the best way to protect community safety. The evidence does show that that’s how we can try to reduce crime and recidivism.
The Chair: Thank you, Ms. Berger.
Senator Batters: My questions are to the Canadian Civil Liberties Association. First of all, our committee last week heard from Benjamin Roebuck, Federal Ombudsperson for Victims of Crime, and he stated:
With schedule 1 offences that might involve sexual crimes against children or where there is continued patterns of violent crime that have occurred, I feel like five years isn’t necessarily sufficient, particularly with crimes against children with multiple victims. Often we don’t know the full extent until more time has passed and we learn about more victims.
How would you respond to those concerns?
Ms. Berger: This is probably a point about which our organization would take a different position or a different perspective than Dr. Roebuck. I think that’s because, again, we feel that sentencing is the appropriate point at which you have a judge who is looking at someone’s entire situation. They’re looking at the evidence before the court, and they’re looking at the person’s criminal history. If there are cases of multiple victims or very serious behaviour, then that corresponds to a much longer sentence. That’s the individualized moment where our justice system attempts to establish fair, proportionate sentences.
I think it is also really important to think about what purpose we think criminal records serve, right? Punishment and deterrence — that’s the role of the sentence. When we get to the point where someone has finished serving their sentence, what is the role of a criminal record or potentially a criminal record check to be used in employment, insurance, housing and volunteerism? Really, people use it because they think it’s a risk-mitigation tool. We screen volunteers or prospective employees because we think it will help us identify bad people or people who might be violent or predatory. Unfortunately — or fortunately — what’s interesting is that the evidence shows that criminal record checks in employment and in those other standard purposes are really not useful tools. They’re not a good way to predict who may cause problems in the future.
That being said, I will note that my understanding is that this bill wouldn’t displace the Vulnerable Sector Check, which continues to exist and is a bit of an exception to our pardon or record suspension system. That’s when folks are applying for jobs where they’ll be in a position of trust or authority with young people. For instance, I recently had to go get a Vulnerable Sector Check because I volunteer on the weekends teaching skiing in an adaptive skiing program. That’s an appropriate situation where a Vulnerable Sector Check could kick in.
Senator Batters: You mentioned that sentencing is the point in time where these types of things should be considered. How about making sure, then, that these types of previous criminal convictions would actually be seen if someone has received a record suspension for it? We heard yesterday that maybe the Crown prosecutors are going to have to Google to see what they can find there. Wouldn’t you say that in determining a sentence, it’s an important thing to make sure there should be an accurate reflection of the criminal record, even if that’s been the subject of a record suspension?
Ms. Berger: Absolutely, and I would draw the same distinction that Ms. Latimer made. I think it’s absolutely possible to craft a statutory regime where records are available for internal justice system processes. Justice system actors like Crown prosecutors and judges can have access to those records and use them to inform their decision making. That doesn’t necessarily mean that those records also have to be available on a standard criminal record check that someone might have to fill out to try to apply for housing or to get an entry-level job. I see no reason why this bill or statutory reform effort could not carve out that distinction and maintain those records to be available for justice system actors like Crown prosecutors. I absolutely think it would be appropriate to consider those records at the point of sentencing.
Senator Clement: Thank you to all three of you for testifying and for your careers.
Dr. McAleese, thank you for your reference to Black History Month. As a Black Canadian, I appreciate that comment. There is a lot of emotional labour that takes place this month, and I appreciate your acknowledgement.
Ms. Latimer, thank you for laying out four very practical steps. I find your discussion around CPIC just fascinating in terms of seeing them as managers. I was struggling with the witnesses yesterday to figure out why it is that requesting a pardon was also seen as part of the penalty.
[Translation]
They did not serve their sentence.
[English]
You used the word “mindset.” The Parole Board might not have the right mindset.
You made a comment about the human rights commissions providing some protection against discrimination. I would like you to comment further on that because my experience with human rights commissions is that the law is only as good as the commission’s resources to help people through that process. Could you comment on that?
Dr. McAleese, could you comment on intersectionality? I have represented clients in the application process many times as a legal aid lawyer. My clients for the most part are also victims. I know we talk about centring the criminal justice system around victims. Well, my clients were all victims themselves. Could you comment on that and how this legislation speaks to that?
Ms. Latimer: I think it’s very important to have a very fair and even-handed process for suspending sentences or closing sentences or whatever we want to call the end result of this automatic regime. That’s because it does trigger — whether it’s totally effective or not or whether there are resource implications — human rights protections under different codes. Access to human rights protections shouldn’t depend on somebody’s cognitive capacity to fill out a complicated application form or whether they have the $680 or whatever the price — even $50 is a very significant underestimate of how much it actually costs to do that.
I think it is extremely important to have a fair system that leads to these human rights protections.
Senator Clement: Thank you.
Ms. McAleese: Thank you for your question and for opening the space to add nuance to this conversation about the victim-offender binary. I appreciate that.
To answer, I’ll speak to my experience when I volunteered for Circles of Support and Accountability, or CoSA. This is a volunteer-based program that operates in communities across the country to support people in the community who have conviction records with sexual offences on their records. What I saw during my time volunteering with CoSA is that people who were convicted for these offences had also been victims themselves earlier in their lives. They were living with the trauma of that violence and harm as well as the trauma and violence of the harm inflicted through the punishment process.
It’s rarely as clear-cut as we’d like it to be, and that’s what makes these conversations hard but important. It’s why I think the conversations need to shift away from processes that inflict more harm — we have to remember that punishment literally means the infliction of harm — and toward creating space for healing, which is part of what Bill S-212 contributes to as well.
Thank you for that question.
The Chair: Thank you. I’m going to take the liberty as chair to pose a question myself.
We’ve heard a number of presentations in relation to the bill, and we’ve heard some concerns raised. Some ideas and potential solutions have been talked about here as well. I wanted to thank the three of you for your contribution to that dialogue.
I would like to go at this from a first principles point of view, and it’s really a question initially for Dr. McAleese. You wrote in a piece about a year ago and described the criminal records process as a second punishment. That invites me to ask initially with you how we should think about the nature of sentencing and sentences and the preservation of sentences, because their very preservation and access within the system do constitute, let me call it, constraints on liberty in some way that amounts to a second punishment. It seems to me in some respects we tolerate that as a society, but how should we think about that and its expungement or being brought to an end from the point of view of things like rehabilitation, deterrence, and the like? It seems to me to be part of your doctoral work, and I’m interested in your view on that.
Ms. McAleese: Thank you for the question and opening the space to talk about what people often refer to as secondary punishment or people refer to it as double jeopardy. It’s referred to in the academic literature as collateral consequences of punishment. More recently there’s been research specifically on the impact of criminalization and criminal records on families. So it’s referred to in the literature as symbiotic harm, harm that extends beyond the person with the criminal record to those closest in their lives and the communities in which they live.
When we’re talking about the ongoing impact of having a criminal record and the stigma that comes with that, we have to consider the implications that go beyond just the one person we’re talking about, and the harm it continues to pose and the difficulties and the discrimination people continue to experience.
Again, that initial punishment that is given to someone at the time of sentencing is also an infliction of harm. The sentence is the sentence, but that doesn’t often get considered. There is a report from the Canadian Bar Association that was published in 2017 that does ask legal professionals to consider the collateral consequences of punishment. I’m not quite sure what the uptake on that report has been by legal professionals, but I am a strong advocate that lawyers and judges and those involved at that front end of the system do really need to consider these long-term, persistent and pervasive forms of punishment that continue to impact people.
The Chair: Thank you.
Could I invite Ms. Latimer and Ms. Berger to offer maybe a minute on this question how we should think of the punishment dimension of records of sentences being preserved?
Ms. Latimer: Sure. I would just say very bluntly that until there is a suspension, there is no protection for people from discrimination in employment. So it’s open season in terms of being able to discriminate against people who are living crime-free lives and making a contribution. Until we have a criminal record system which is fairer and doesn’t leave the marginalized behind, we’re going to continue to have a discriminatory system.
The Chair: Thanks. Ms. Berger?
Ms. Berger: Yes, I would agree. Sentencing is the point at which our society thinks about punishment, thinks about deterrence and denunciation of the offence. That’s up to the sentencing judge to extend that punishment beyond the time when a person has served that sentence to me is inconsistent with the fundamental rights and freedoms embedded in our justice system and at the point where someone has served their sentence, paid their debt to society and is now moving forward with their lives, I think we need to focus instead on the community and public safety. What the evidence shows is that supporting those folks to find employment and reintegrate is what serves community safety.
The Chair: Thank you very much.
I’m going to now invite Senator Dupuis, but we will carve out a little bit of time for a second round. We can go a little bit longer today. I have four names on the list, and I’m going to ask you to limit to two minutes. Senator Dupuis, you have your full five minutes.
[Translation]
Senator Dupuis: Thank you to the three witnesses here this morning. I would like to pick up from the chair’s question. My question is for the three witnesses.
With Ms. Latimer’s position, a clear distinction has been made between the sentencing stage, the serving of the sentence and so forth.
Does the current Criminal Records Act not represent a type of systemic discrimination against every individual who has fully served their sentence? Not only are these people likely to face discrimination when it comes to employment and housing, but is it not hypocritical of us to establish another form of underlying discrimination by requiring what is currently required under the Criminal Records Act?
[English]
Ms. Latimer: I’m not sure I fully understood the question, but I will say that the way the Criminal Records Act regime is working now is absolutely discriminatory. I have been in many consultations, and I’m sure Samantha McAleese has been in them as well, where Indigenous people are saying our people are not applying. They’ve often led disorganized lives. They have criminal records at different courthouses and they can’t get it together to collect everything and put the application together, nor do they have the money to actually do that. So that’s a problem.
I also sat on a panel with a Black prisoner who met all the criteria and he was just frankly denied. There is a tendency, maybe Ms. McAleese can back me up, if the person committed a violent offence, they will initially refuse to go with a record suspension on the basis it would bring the administration of justice into disrepute, which is very strange.
The way the system works now is extremely discriminatory. The senators here have a wonderful opportunity to make some adjustments to this bill and do something that would help eliminate active discrimination in this country. I really hope you take that opportunity.
Ms. McAleese: I’ll pick up on a specific part of the current application process that facilitates that discrimination, especially for people who maybe don’t have the access to resources to fill out that application process. It’s called the measurable benefit form. It’s basically the essay question portion of the application that requires people to recall what happened at the time of the offence or the offences and requires them to kind of relive the entire situation. For some people, again, we’re talking about traumatic instances. We’re talking about people who have criminal records because they were involved in a domestic violence situation, we’re talking about people who live with mental illness, who live with addiction, who have to sit and recall and relive a lot of this trauma through this application process. That is often a reason why people decide not to go through with this process because they don’t want to relive that trauma.
[Translation]
Ms. Berger: Yes, absolutely. I would just add that having a criminal record opens the door to discrimination from individuals or organizations who may have good intentions, but do not understand how our justice system works. When they receive a document from police services indicating that the person has a criminal record, they believe that means the person is unreliable or violent and that the police officers are providing this information because it is important. Discrimination comes from employers or organizations who have good intentions, but do not understand our justice system nor how important it is to allow individuals with a criminal record to reintegrate.
[English]
The Chair: Thank you, Ms. Berger.
We’re going to go now to the second round.
Senator Pate: Thank you again to all of you for your testimony and the breadth and depth of your knowledge on these issues.
I’m coming back to you, Ms. Latimer, because one of the issues when the former public safety minister Goodale appeared on a previous bill — and we talked about this kind of automatic process — he stressed the challenges of having the federal-provincial-territorial schemes actually work together.
Recently, Minister Mendocino, the current Minister of Public Safety has been quoted as saying he may be interested in a more automatic process. How did you deal with the federal-provincial-territorial issues when you were drafting the provisions for the YCJA?
Ms. Latimer: Thank you for the question, Senator Pate. We had many long discussions with record holders in the provincial system, from police, court administrators, you name it. We worked through the challenges, and we developed a workable solution. Frankly, nobody has been really complaining about the record management system in the Youth Criminal Justice Act, and it’s been in effect for 20 years now. It’s probably a decent precedent that Minister Mendocino and others could take a look at to bring the provinces on side. I think it could be done relatively simply.
In many ways, it protects the local police forces from making errors about not sharing information when they shouldn’t. It creates some clear rules, which I think they would welcome.
Senator Klyne: Ms. Berger, when you were answering my question, you touched on reintegration, which is often given to those to prepare them for re-entry following their release. Any comment on rehabilitation while they’re in prison, and if that’s effective? Do they even get offered good rehab programs and take them up?
Ms. Berger: That’s a great question. Often that depends on where someone is incarcerated. Access to programming is always difficult, particularly when we think of folks who are serving shorter sentences, because remember, in provincial and territorial jails which are incredibly overcrowded and people tend to serve shorter sentences for less serious convictions, they may not have access to programming, so the system spits them back out. That’s part of the picture.
But when you talk to organizations that do that incredibly important work when folks have been released, the criminal record is a major barrier, as the service providers that Dr. McAleese has worked with indicated again and again.
Senator Klyne: Thank you.
[Translation]
Senator Boisvenu: My question is for Ms. Latimer.
Under the current legislation, if an offender reoffends after the suspension period, the suspension is rescinded and when the offender appears in court, his criminal offence is considered recidivism if it is a Schedule 1 offence.
Under Senator Pate’s bill, even if a crime is committed after the suspension, the criminal record would still be suspended. If a criminal appears in court for a crime he committed, the court will not consider him a recidivist. There will be no aggravating factors.
Do you agree with that principle?
[English]
Ms. Latimer: As I mentioned earlier, there are some legitimate criminal justice and investigatory reasons to make sentences available or records available. My understanding is that if somebody reoffends, then that record is open again. So there shouldn’t be any problem at the point of sentencing to get a look at somebody’s complete criminal history in order to make sure that the sentence is proportionate to the degree of responsibility that the perpetrator exhibited.
The Chair: Thank you.
Senator Batters: Ms. Latimer, I certainly challenge your assertion that very few Canadians have disagreed with the YCJA record provisions. I frequently heard that’s a big bone of contention.
My last question is to Ms. Berger. It’s been raised previously that the application process for the record suspension is onerous and costly, yet we heard yesterday from a former parole board member that there is merit in the application process. Senator Dalphond also raised in yesterday’s meeting that, perhaps, there should be a requirement to apply for a record suspension in cases that were serious enough to warrant indictable offences.
If the process of the record suspension were simplified and the cost either reduced or eliminated, would you agree there is some merit in a vetting process or an application for the most serious criminal convictions?
Ms. Berger: No. As we’ve said, we think it makes sense to have an automatic system for all convictions, once, of course, that sentence has been served and the person has lived crime-free in the community for that period of five years for indictable offences.
Again, the most serious offences in our system, folks receive life sentences or indeterminate sentences or very long sentences. Assuming that somebody has finished serving their sentences and has lived crime-free in the community, we don’t see a necessity for the person to apply, because again, that criminal record, when it’s going to be used for housing, when it’s going to be used in employment, in insurance, for instance, it’s not a useful tool in terms of protecting community safety moving forward.
The Chair: Thank you, Ms. Berger. At this point, I want to take a moment to thank each of the three witnesses and my colleague senators for insightful questions and your insightful answers. We appreciate you taking the time to share with us your thoughts on this important bill.
At this point, we will return ourselves to examining the dialogue around Bill C-28.
We will now have a discussion about the shape of the report that we will develop in relation to Bill C-28. You will recall that this is a somewhat neural process since the bill passed both houses of Parliament and is now in force. In a way, we’re doing a retroactive review. Notwithstanding that, the other place has completed its work, and we’re able to turn our minds to concluding our responsibilities here.
First, I want to have a discussion about whether you’re comfortable continuing in this public forum or if your preference would be to go in camera. I don’t know the extensive history and culture of this committee, but our pattern has been to do this in the public forum. Senator Batters just reminded me that we did the first part of this dialogue in the public forum and there’s a leaning toward continuing if that fashion, unless there’s some objection or concern that we should think about.
[Translation]
Senator Boisvenu: This is a very important bill that was passed. We need to be as transparent as possible. I would prefer to stay in the public forum.
Senator Dupuis: I do not have any objections to remaining in the public forum. I have also noticed that things that are presented as practices of the Senate vary. For some time, we thought that things were being done in the public forum when really, sometimes, they were being done in camera. I really appreciate having the opportunity to give our opinion every time as to whether we want to stay in the public forum.
[English]
The Chair: Thank you, colleagues. We might begin this discussion. At this point, you will have received an outline prepared by the support team for the committee. I think it’s about two pages long. I might invite you to just introduce it, ever so briefly, and then we can dive into the discussion. It will give you a sense of the shape of it, as a thinking piece for getting started.
Julian Walker, Analyst, Parliamentary Information and Research Services, Library of Parliament: Good afternoon. I’ll take a minute to introduce the document you received. We knew we wouldn’t have time to prepare a draft in the time that we had for the original order of reference, but we wanted to provide a bilingual document that you can reference that provides a summary of the themes that were discussed.
In the past, a common format for committee reports has been to have a summary of what we heard in committee, followed by observations and recommendations. We have not at this time received that drafting instruction to do that, but what you have in front of you is meant to cover the themes that we identified. Obviously, some smaller ones may not have fit in here, but it can serve as a memory aid and a possible structure for what we could do. But I repeat: We have not received any instructions from you. At this time, we’ve been working to prepare for this, but we’ll follow your instructions for what you would like to see in the report.
The Chair: The floor is open for comments and thoughts. I have a couple, but I invite you to kind of dive in first.
[Translation]
Senator Boisvenu: The only comment I want to make is one that I made during our business sessions, which has to do with the period after which the bill will be reviewed by parliamentarians. I think that three years is too long. We are seeing it with Bill C-5. Initially, sex offenders were only supposed to be able to serve a sentence at home in a few exceptional circumstances.
However, what we are seeing in Quebec right now is that about a dozen individuals who committed this type of crime are serving a sentence at home. What concerns me, as Dr. Chamberland said, is that there could be a lot of cases like this. We need a real-time tracking system for the number of offenders who avail themselves of this new provision, so that we can determine whether it far exceeds the number of cases we had in the past or whether the number of cases stays about the same.
[English]
Senator Arnot: I’m not a member of this committee, but I was here for some of the panel work. First, I believe the concerns of civil society that we heard, in particular, from Elizabeth Sheehy and Kerri Froc have been amplified and corroborated by the Perignon case in British Columbia. Therefore, this committee should be giving serious consideration to those concerns.
Second, Professor Coughlan, who was a witness at the committee two weeks ago, raised some important points, one of which was to create a new Criminal Code provision which would make committing a serious criminal offence — and he’s outlined them as 271, 272 and 273 — while in a state of criminal intoxication would be an indictable offence in itself. I think that is an interesting way to deal with those concerns that have been raised by civil society. I believe his suggestions are reasoned and logical. I believe it does provide a solution. It is an alternative approach. I’m suggesting that serious consideration be given to his suggestions and that this be done in a very short order of time.
I agree that with Senator Boisvenu that the three-year timeline is too long in this situation. If there’s an acute situation in the community that needs to be addressed but there’s a way to accelerate the consideration of Mr. Coughlan’s provision, that should be taken.
The Chair: Perhaps I will share this. You’ll recall that Senator Dalphond was not able to participate in the discussion, but he also urged the consideration of Professor Coughlan’s submission. The thought I had, to conclude, is that in section F of the document, “intoxication-based new offence,” one of the bullets might be a consideration of Professor Coughlan’s recommendations. I think that is aligned with your intervention, Senator Arnot. I made that same observation myself but not in a timely enough way to make it into the document.
Senator Batters: I want to echo the comments that Senator Arnot made. Yes, that particular panel that we heard from — Professors Sheehy, Grant and Froc — brought forward some very important analysis on this issue, as well as how women, in particular, are dealt with under this provision and how the implications for this kind of offence, mostly against women — not only, but mainly — and the very significant implications that the B.C. case could have. We are in somewhat of a fortunate situation that the case has come out while we’re still in the process of looking at this issue, so we’ve seen the very real impacts it can have. That needs to be an important part of it.
I’m sure it permeates through all of this, but I just want to make sure that the impact on women is very much amplified throughout this report. Thank you.
[Translation]
Senator Dupuis: The first point I want to make has to do with the usual way of preparing reports. I understand that it is out of the ordinary for our committee to retroactively re-examine a law that has already been passed, but I think that the report should include some aspects of the testimony that we heard. There was some extremely clear testimony about the effects of the current situation and the impact of the ruling that should be highlighted.
I am not sure I am seeing that. Perhaps that information is already in there, but I would like the weight of the testimony that we heard to be reflected in the report we produce on the current situation.
[English]
The Chair: I think it is a very good suggestion that we are a little more descriptive about what we heard in the testimony and perhaps focus a little bit less on trying to describe the functionality of the legislation captured in (d) and (e) — we might be able to do that briefly — but I think this would show a degree of respect for the people who took the time in a rather unusual situation. I think some asked what the point was of coming since the legislation is already in force. Those folks made a genuine effort to help us out here.
If you’re comfortable with that, we might evolve the plan for the report a little bit more in that direction — a little less on the law and maybe more on what we heard about witnesses’ concerns, if you’re comfortable with that. It might have to be organized in a way that our colleagues think best.
[Translation]
Senator Dupuis: That would also make it possible to clarify the nature of the problem. We heard many witnesses provide testimony, but since this is a relatively complex and technical situation, we want to give those reading the report a clear understanding of the underlying position of the testimony that we heard and the reasons why we are making certain recommendations. We also want this report to convince the government to take action. This is not just about acknowledging a situation. We are going to make recommendations so that things move in one direction or the other.
I think that the testimony is very important in that regard.
[English]
Senator Pate: I agree with that.
I’m not sure what the procedure is. Those who have been here longer, such as Senator Batters, will no doubt correct me, but I received a copy of a document that Dr. Sheehy sent in after the fact about that case that I found extremely helpful to deconstruct some of the misinformation. I think it went out to everybody. Is it possible to include that in the report? It was before we were doing the report and is germane to the issues. In addition, I certainly support what Senator Arnot is suggesting, as well.
Senator Batters: I think that’s a great idea. That would be very helpful.
The Chair: I will just add that one of the advantages of this approach to the report is that it will give us a chance to maybe have an almost final discussion on what we might want a recommendation to the government to be. Here, I want to build on the thoughts that Senator Boisvenu just described about an earlier review. But one of the possibilities is that we might say —
Let me back up and make this one observation. I think we all voted in favour of this legislation, sensing the urgency of things last June, but some of us — and I would include myself — had some reservations about whether it would be effective. Some of you ducked out; I can’t recall. I apologize, Senator Pate. Nearly all of us voted in favour, some reluctantly, but you’re not really allowed to qualify your vote.
But there were some reservations about its effectiveness. One possibility is that we might say, without waiting for one, three or five years to see a pile-up of cases that might be problematic, is to ask the government to immediately give consideration to alternatives that might work better and could replace this legislation.
It feels to me like it’s not a criticism of anybody. Maybe it will end up being applause for those who voted against the bill, but if we have ideas that we think are better — and on a topic as important as this, we might want to urge their consideration without a mound of evidence that suggests problems with the existing legislation.
I don’t say we should decide that today, but it’s at least an option rather than just saying, “Review this soon.”
Senator Pate: Observations are the last piece we were looking at, but I think the message of having to do it in consultation with the people who have the expertise in that area — when Liz and I developed the course, “Defending Battered Women on Trial,” it was really her brilliance and the fact that she was able to give us that kind of analysis so quickly, even with a whole bunch of other things on her plate. It strikes me that this is who the government should consult with. I would feel comfortable suggesting they actually go to people who have the expertise, because often they consult with an academic who may not have the particular expertise in the area.
The Chair: There hasn’t been an opportunity in the development of this legislation to use the law conference or much dialogue with the provinces or territories. There’s an argument along those lines that we might say that. Having had a number of those folks come to us, and generously so, we might refer them on, so to speak.
I’m hoping that might be as much shape as the analysts need here in terms of the development of a draft report. It is a bit of a reshaping of it and kind of building the content in.
[Translation]
Senator Dupuis: I would like to continue your line of reasoning and make a suggestion. One of the elements, point (f), already raises the option set out by the Supreme Court in R. v. Brown. There are arguments for and against it. In our discussion on this subject, we could use this as one of the factors that led the committee to recommend that the act be amended immediately rather than waiting until it is reviewed in three years.
[English]
The Chair: That’s a useful point to keep in mind.
To observe on the timetable of things, it seems to me that we need to turn our minds to finalizing this when we return in that first week of March.
We’re working toward a March deadline?
Mark Palmer, Clerk of the Committee: The original deadline right now is March 10, but if the Chair and the committee so choses, I have already drafted an extension motion, just in case.
The Chair: Are you comfortable trying to close this off in the course of an hour in the week leading up to March 10, or should we ask for more time?
Senator Batters: We could try and then we could make the request.
The Chair: If we need to. Are we comfortable with that as an approach?
Don’t shred the paper yet, Mr. Palmer. We may need it.
We will aim for an hour on the Thursday of the week that we are back. That gives us a bit of time to digest things. That might not give us enough time to perform.
Mr. Walker: The challenge is always translation. We can’t distribute it until it has been translated. Steering will want to review it first, so it might be tight.
The Chair: We might really need that piece of paper.
Are you comfortable with an hour on the Wednesday or Thursday of the first week we’re back, trying to wrestle it to the ground? If we are unable to, we will ask for more time.
Can I consider that pretty much the resolution of the discussion of where this report will go? Any other comments or interventions?
Thank you, all. Thank you, Senator Arnot, for joining us today for these deliberations.
(The committee adjourned.)