Criminal Records Act
Bill to Amend--Third Reading--Debate
May 21, 2024
Honourable senators, I rise in support of our colleagues at the Legal Committee who worked diligently to study Bill S-212 on automated criminal record expiry. They reported back nearly seven months ago. I’m glad that this chamber finally adopted this report and that we are now at third reading consideration of this bill.
Colleagues, it is now time to move forward on this bill.
When we launched the African Canadian Senate Group in December 2021, my colleagues and I identified Bill S-212 as a priority connected to our work with community members for progress on issues of justice, health and economic fairness.
At committee, witnesses — including the Federal Ombudsperson for Victims of Crime, the Canadian Bar Association, the Canadian Association of Black Lawyers, Aboriginal Legal Services and even the Canadian Association of Chiefs of Police — all underscored that Black, Indigenous and racialized people are systemically overrepresented in the criminal legal system and systemically disadvantaged by the current unjust and inaccessible record suspension system.
Bill S-212 allows records to expire without an application process, provided that the individual has no subsequent charges or convictions for two to five years. It would help people overcome barriers created by civil record checks that prevent access to things like housing, jobs, education, volunteer work and other necessities for integrating safely and successfully back into their communities.
At the same time, in response to concerns raised by some police services, Senator Pate amended the bill at committee to ensure that police can continue to use information in expired records as part of legitimate investigative work.
The data and evidence shared at committee make it clear that Bill S-212 will enhance public safety. It will help ensure that people are not trapped in the same situations of poverty, isolation and marginalization that led to their criminalization in the first place. It will be a small step toward correcting past failures to provide justice and ensuring equity for BIPOC communities. It will provide hope and paths forward. Colleagues, this should be an urgent priority for all of us here.
Through measures in Bill C-5 aimed at redressing systemic racism, the government has committed to implementing automatic record expiry for drug possession records by this fall. This is an important first step toward justice for some. Bill S-212 will increase access to these much-needed measures.
In urging that we act with haste, I want to focus particularly on the consequences of criminal records for children and families.
The majority of BIPOC women in prisons are mothers. The majority of their children have been taken away from them into the care of the state as a result of their incarceration, meaning that separation from children is a heartbreaking, hidden tragedy and added punishment not only for mothers but for their children too.
For women with criminal records who are fighting to reunite with their children or to prevent their apprehension, searching for jobs to try to lift themselves and their children out of poverty or in need of safe housing to provide their families with stability, obtaining a record expiry is essential.
Bill S-212 is a much-needed step toward ensuring that the stigma, injustice and marginalization associated with criminal records are not lifelong or intergenerational.
Senator Pate has previously shared the story of a child who was excluded from class field trips and special activities because no one could provide the additional parental supports that he needed in order to take part. His mother could have — she was there; she was able — but despite presenting herself as no risk to public safety, she had a criminal record and could not volunteer for the school. Her child suffered. Other children suffered because of this. The current system requires that those in her situation must wait 10 years for a record suspension. Time is fleeting and children grow quickly; 10 years is a lot of time for a child.
In the seven months that this bill has sat at the report stage and in the more than five years since the first version of this bill was introduced in this chamber, how many parents have we hindered as they tried to do their best for their kids? How many children have we asked to go without?
Colleagues, I urge you to vote in support of this bill.
Honourable senators, I wish to propose an amendment to clause 5 of Bill S-212 in the section relating to the waiting period. This amendment aims to revert the waiting periods currently in force under the Criminal Records Act.
Specifically, we propose the following modifications: First, replace the 5-year period for indictable offences with a 10-year period. Second, replace the two-year period for summary conviction offences with a five-year period. We believe that the waiting periods currently provided in Bill S-212 — five years and two years, respectively — are too short. Indeed, these periods do not allow for a sufficient rehabilitation period for convicted individuals.
Social and personal rehabilitation take time and are crucial to ensure that individuals have enough time to demonstrate a lasting change in their behaviour and lifestyle. By extending the periods to 10 years and 5 years, we encourage more comprehensive rehabilitation, and give these individuals the opportunity to prove they are ready to be fully reintegrated into society.
This also protects public safety by ensuring that only those who have demonstrated true reform in their behaviour can benefit from a criminal record expiration. The expiration of a criminal record also concerns Schedule 1 of the current Criminal Records Act, which includes serious offences. Among these are sexual contact with a minor, bestiality in the presence of a child under the age of 16, inciting a child under the age of 16 to commit bestiality, corrupting children, child pornography and trafficking of persons under the age of 18. The latter two crimes — child pornography and trafficking of persons under the age of 18 — are currently seeing the most significant increase in Canada.
Let us not forget that we are no longer talking about suspension with this bill, where the offender must apply to the Parole Board of Canada. It is now an automatic expiration of the criminal record. Therefore, for crimes as serious as those that I have just mentioned, it does not seem prudent to allow a criminal record to expire after only five years.
As mentioned at committee — during the study of this bill — by Dave Blackburn, former commissioner of the Parole Board of Canada:
In my humble opinion, the automatic suspension of criminal records after two or five years is problematic and will directly contribute to weakening the safety net and advocating a one-size-fits-all approach. It thwarts two essential notions in the process of successful and sustainable social reintegration: empowerment and accountability of individuals.
Social reintegration is an individual, multidimensional and long-term adaptation process. In all cases, this process does not end at the end of a sentence and does not de facto become fully realized two or five years later. A crime is the result of numerous contributing factors. The offender has to work on those factors and achieve self-improvement. This journey and fulfilment may take time depending on the individual and is directly influenced by the degree of empowerment and accountability.
By proposing the automatic expiry of criminal records, this bill eliminates this final step of empowerment and accountability for those who have committed a crime. Worse, the bill shifts the responsibility and burden of proof from the individual, who previously had to demonstrate that he or she has become a law-abiding citizen, to the Parole Board of Canada, which already has its hands full with conditional release cases. From a mechanical and operational point of view, it is already foreseeable that the passage of this bill will throw sand in the gears.
I’ve heard our colleagues who are in favour of this bill talk endlessly about the rights of criminals, and the rights of people who have violated the code of conduct in our society. But I’ve heard very little about standing up and showing empathy for the victims — for the children, for their families and for those who are the victims of these abhorrent behaviours. All of us are empathetic human beings who want to see people reform and take accountability for their actions, but we also have to show empathy for those whose lives are destroyed, and, in some instances — regardless of therapy, and regardless of emotional help — they will never get back on their feet.
Our society is based on inherent rights and privileges, without a doubt, but there are also inherent responsibilities that everyone should respect. That’s why we’re taught from a very young age — regardless of race, colour, background or economic status — that you must work hard, play by the rules and try to be a law-abiding citizen and do good things in society. And when you don’t, there must be consequences. If those consequences could be erased in 24 months, or three years, or five years, I, for one, think that’s not sufficient. I don’t believe there has been enough clinical evidence to show that’s even possible with people who contravene and break the laws in the most hideous way.
We urge you to seriously consider this amendment to ensure better public safety and more effective rehabilitation of individuals who have committed serious offences.
