Moved second reading of Bill S-258, An Act to amend the Criminal Records Act and to make consequential amendments to other Acts.

She said: Honourable senators, I rise to speak to Bill S-258, An Act to amend the Criminal Records Act and to make consequential amendments to other Acts. This bill will increase public safety by removing unnecessary obstacles to successful community integration for those who have been held accountable for their actions, have fulfilled all aspects of their sentences and are trying to move on with their lives.

The criminal record system as we know it is beyond counterproductive. Long wait periods, onerous review processes and the threat of a long-suspended record springing back to life do not increase public safety.

Between 2010 and 2012, Canada entrenched a so-called tough-on-crime approach to pardons. Fees increased from $50 to $631 and wait periods increased from three and five years to five and 10 years, respectively. Pardons became record suspensions and the more invasive and complex review process for a record suspension currently takes between 162 and 490 days, where a comparable wait time for a pardon would be 20 to 121 days.

These changes have not made us safer. In fact, the rate of those who meet stringent “good conduct” requirements after obtaining a pardon or record suspension has remained steady at more than 95 per cent. These changes have, however, resulted in a decrease in the number of people applying annually by over 40 per cent.

Those previously convicted of criminal offences are most likely to remain crime free if they have a place to live, means to support themselves and something meaningful to do with their time. By effectively extending the reach and impact of criminal records, the state actively interferes with the abilities of people to move on and not only integrate but also contribute to the community.

Sealing records is sometimes characterized as a way of helping people find jobs, housing, education and volunteer opportunities, but to put it this way is to get it backward. When a record is sealed, the state is supposed to stop actively punishing individuals and cease its interference with rehabilitation, remediation and related community integration efforts.

Currently, five jurisdictions in Canada — the Yukon, British Columbia, Quebec, Prince Edward Island, and Newfoundland — offer some form of protection against discrimination on the grounds of a criminal record that has not been pardoned or suspended. Other provinces and territories and the Canadian Human Rights Act only protect against discrimination on the basis of a criminal record when a pardon or record suspension has been granted.

The current process is not accessible to many and therefore effectively results in indefinite punishment of people who have already been held accountable for their actions. It can bar them from housing, employment, education and even volunteering. It is a punishment that extends to their families, particularly their children, and their communities. Indeed, the former Federal Ombudsman for Victims of Crime described the 2010 and 2012 amendments restricting access to record suspensions as “a stupid thing to do,” precisely because of the adverse impact on public safety.

Bill S-258 proposes three key changes to the Criminal Records Act. First, except where records are required for vulnerable sector checks, it would allow records to expire rather than merely be suspended. Those who have been held accountable for their actions and are trying to move on with their lives should not have records held forever over them in the Damocles-sword style of limbo created by the 2012 suspension regime.

Second, the bill would do away with the current costly and bureaucratic application process. Returning to wait periods closer to previous time frames, after two years for summary conviction offences or five years for indictable offences, without new convictions or pending charges, convictions would expire. Records would be removed from the RCMP’s database without need for an application by the individual or a review by the Parole Board of Canada.

Third, with the reduction in costs associated with streamlining and removing unnecessary bureaucracy from the expiry process, application fees could be eliminated.

The bill builds on a flurry of recent government and legislative work. Public consultations, parliamentary committee work, and Parole Board and ministerial pronouncements have recognized the discriminatory impact of the current system, particularly for those who are poor.

In January of 2016, Public Safety Minister Ralph Goodale announced his intention to consider meaningful reforms to the Criminal Records Act and, in particular, the $631 application fee, which he identified as “punitive.”

In the three years since that commitment, two public consultations, one by Public Safety and the other by the Parole Board of Canada, have demonstrated an overwhelming consensus that the current onerous application process and fees are unacceptable. Bill C-66 has sought to attenuate current failures in the record suspension system and ensure its effectiveness for those with convictions arising from discrimination against members of the LGBTQ2S community. The Public Safety and National Security Committee in the other place issued a report recognizing “that a criminal record has a negative impact on a person’s ability to find employment, housing, education, travel, adoption and custody of children,” yet again urging the government to review the record suspension process.

Most recently, two pieces of legislation currently in the other place have proposed measures for either expungement or expedited cost-free record suspension for those with convictions resulting from simple possession of cannabis. These are good first steps, but in the face of such thorough consultation and near unanimous agreement that the current system is untenable, it is time for more meaningful legislative change. The bill before you will allow for immediate expiry of records related to possession of cannabis in addition to other decriminalized offences. Problems of access to record suspensions are not, however, limited to those with cannabis convictions, nor should our legislative response be so limited.

The attention given to the record suspension process in recent years is indicative of the magnitude of the problem it represents. In particular, as restrictions on record suspensions have increased, so has the use of police record checks. The decision to label, single out and discriminate against those with a past criminal conviction is usually framed as a false dichotomy, a trade-off between the community’s interest in public safety and the individual’s interest in reintegration into society.

These objectives are not at odds. In fact, we know they go hand-in-hand. Under the guise of this false dichotomy, however, what began as a matter of police record-keeping in the early 20th century has increasingly been used for “civil screening” checks conducted by police at the request of individuals and required by employers, volunteer organizations, educational institutions and even landlords.

The increased use of criminal records checks also places a disproportionate burden on those who are already unjustly stigmatized. For instance, one study from the United States found that the likelihood of a callback for a job interview drops by 50 per cent for White applicants who have had to reveal a criminal record to a prospective employer, but for Black applicants, it drops by about 65 per cent, an impact that is 40 per cent stronger.

In Canada, the Prime Minister recently acknowledged the following with respect to cannabis convictions:

We know that, because there is a disproportionate representation of young people, from minorities and racialized communities, who are saddled with criminal convictions for simple possession [records are] ... a significant further challenge to success in the job market . . .

Unfortunately, this over-representation is not limited to cannabis possession convictions. Though only 2 per cent of Canada’s population, Black individuals account for 9 per cent of federal prisoners. Twenty-eight per cent of those in federal prisons and 40 per cent of women in federal penitentiaries are Indigenous. Without a doubt, racialized communities are disproportionately burdened by the punitive nature of the current record system.

Honourable senators, this body of government and legislative work makes clear that it is no longer enough to simply recognize that we have a problem. We know that criminal records interfere substantially with efforts to find employment, education and housing after serving a sentence. We know that they create barriers to successful reintegration and can undermine rather than enhance public safety. We know that the process for suspending criminal records is punishingly costly and complex. It is time for legislative change.

As a first key measure, Bill S-258 provides for the deletion of all records not required for vulnerable sector checks. Before we had record suspensions, we had pardons. The word “pardon” understandably conveyed the impression that unless the state held someone’s conviction against them for the rest of their life, it was forgiving them for their actions. In some cases, forgiveness for past wrongdoing may be sought or provided by victims or the community, but it may not always be an appropriate characterization of the post-conviction process.

The expiry of criminal records reflects the principle that when we, as a society, decide to hold someone accountable for their wrongdoing, we can only inflict so much hardship before we ourselves are perpetrating an injustice. It also reflects the empirical data demonstrating that after a period of crime-free years, those with a previous conviction are effectively no more likely than the rest of the population to be convicted of another offence. A record expiry scheme is not a scheme for forgiveness. It simply reflects the principle that punishment should at some point come to an end.

A second component of Bill S-258 is the removal of the $631 application fee. Most applicants are seeking a record expiry in order to secure employment. In addition to this fee, applicants currently pay hundreds of dollars in associated costs, including for fingerprinting and other related search fees.

Too many of those who are criminalized are amongst the poorest and most marginalized in our society. Especially following a prison sentence, many are forced to rely on social assistance because criminal records come between them and stable, lawful employment, education and even housing and volunteer opportunities. A $631 application fee like this is beyond the means of most people on social assistance, minimum wage or other limited income.

Parole Board of Canada data clearly demonstrates what a barrier this fee represents. When fees increased from $50 to $150 and then to $631 between 2010 and 2012, applications decreased by as much as 40 per cent.

In 2012, the government portrayed its fee hike as a simple cost recovery measures Representatives of the Parole Board of Canada recently testified that the record suspension system is the only program within Public Safety Canada for which full cost recovery is pursued. Furthermore, Public Safety officials recognize that every dollar invested in expiry of criminal records translates into $2 of revenue for the government if individuals are able to secure employment and pay income taxes.

In reality, the application fees are an additional punishment and Canadians see them as such. When the last government was forced to consult with Canadians before it hiked the user fee, less than 1 per cent thought an increase was acceptable.

Consulted again in 2016 by the Parole Board of Canada, four out of five Canadians described the user fee as a significant barrier to those seeking record suspensions, and more than three out of five described the fee, as well as the long, stressful application, process as further punishment. Ninety-six per cent of Canadians rightly expressed concern that the exorbitant fee contributes to a vicious cycle in which people do not have employment and are unable to afford the fee, and then they can’t find employment because clearing their criminal record is too expensive.

By making the process more cumbersome and invasive, the 2010 and 2012 amendments to the Criminal Records Act more than tripled the administrative cost of each record suspension but did nothing to improve the already high rates of successful community integration for those granted pardons. They merely barred more individuals from the application process. This bill replaces that costly process with a streamlined system that is more efficient and more effective. In doing so, it eliminates the bureaucracy and the fee not by subsidizing the expense but by eliminating it.

The bill’s third key measure removes the requirement for an application and allows records to expire at the end of a fixed period of time without subsequent convictions or pending charges. Currently, Canada imposes indefinite criminal records for all convictions. Courts have recognized that criminal records constitute punishment, and in the absence of an accessible procedure for expiry, they too often result in punishment that is needless, senseless and indefinite.

It is often wrongly assumed that lifelong criminal records are a necessity. Only a few decades ago, however, there was cross-partisan consensus in Canada that punishment must at some point come to an end without the payment of a hefty fee.

In 1970, the Honourable Robert McCleave, Conservative critic to the Solicitor General, offered the unanimous support of his party for the free and comparatively humane pardon scheme originally created by the Criminal Records Act. He said:

It is of importance that people should not be punished in a monetary way because of an offence for which they have served their time or otherwise paid their debt to society. They should not have a bad name hanging over them for the rest of their lives.

In 2017, public consultations showed that Canadians have not retreated from this consensus that values humanity, fairness and common sense. More than four out of five Canadians support some form of automatic record expiry — that is, expiry of a record without need for an application. Three in four Canadians thought the current five-year waiting period for summary conviction offences is too long. Almost as many thought the same of the 10-year waiting period for indictable offences, responding that the period should be between one and five years.

Last December, the House of Commons Public Safety Committee studied record suspensions and concluded that the government needs to “review record suspension fees; . . . the complexity of the record suspension process and consider other measures that could be put in place to support applicants through the record suspension process and make it more accessible; . . . [and] examine a mechanism to make record suspensions automatic.”

This interest in exploring expiry of records based on passage of time alone is fully supported by empirical data. The factors most likely to promote successful community integration simply do not require an application and review by the Parole Board of Canada. Indeed, they are undermined by restrictions on record expiry.

Desistance research makes clear that after a number of crime-free years, those with a past conviction are no more likely to be convicted again than those who have never been criminalized. Over the past 15 years, more than 95 per cent of those who have received pardons or record suspensions have remained crime free. This is not only a strong endorsement of the value of a clean slate in promoting safe and successful community integration and positive contribution to one’s community, it also reflects research that the high success rate of pardon and record suspensions recipients is not the result of stringent review criteria, exorbitant fees or longer wait periods. Rather, it is exactly what we should expect from those several years following conviction and sentence expiry. When a person no longer poses a greater risk than anyone else and when they have already completed the sentence that a court imposed to hold them accountable, there is simply no justification for continuing to burden them with a record nor for requiring an application to lift that burden.

Criminologists agree that sealing records actually reduces the risk of future conviction, notably by increasing access to employment opportunities. Empirical evidence strongly suggests that finding employment significantly reduces the likelihood of future criminalization. In one American study, out of a random sample of 401 people released from prison, those who were able to find employment were almost half as likely to ever be re-arrested. A five-year follow-up with more than 6,000 people found that no matter what offence had led a person’s criminalization and incarceration in the first place, employment was the most significant factor determining successful community integration. The same study also confirmed that the likelihood of recidivism decreases significantly as years pass by. These findings should come as no surprise given the importance of employment when it comes to finding a place in society by providing meaning, validation of one’s contributions and a means of supporting oneself and one’s family.

This bill restores eligibility while also preserving the mechanism of vulnerable sector checks, which can detect expired records when someone applies to work with children or other vulnerable people. It should be noted, however, that given the paucity of reporting when it comes to violence against women and children, experts do not support the use of record checks as an effective means of protecting children from harm.

In most legal systems that are comparable to Canada’s, the stigma of a record can disappear if a person remains crime free for a number of years. Canada already provides mechanisms for record expiry without an application in cases of absolute and conditional discharges and for youth records, but lags far behind when it comes to adult records.

Among the common law jurisdictions most often compared to Canada, only the United States fails to provide some form of sealing of records without an application. The U.K., Australia and New Zealand all allow this. Record expiry after a number of years is also the norm in Europe and has proven to be a safe and effective system.

The United States, a country that jails people on the most massive scale in all the world, does not make good company for Canada when it comes to criminal justice policy. Canada’s recent experience with Bill C-66 concerning the expungement of records arising from historical discrimination against LGBTQ2S communities has further clarified that application-based processes are too often insufficient when dealing with records. As of October 2018, despite Bill C-66’s cost-free application process designed to be infinitely more accessible than the standard record suspension process, only seven individuals had applied and only two out of an estimated 9,000 records had been expunged. On what possible basis should we not just eliminate those records? Why must we add to the historical indignities and injustices by requiring even historically wrongfully convicted folks to apply for the removal of their records? This bill would also address and offer remedy to men and women whose records should have been eliminated with the passage of Bill C-66.

It will also offer a more fulsome response than the one currently proposed in Bill C-93 for those with records related to simple possession of cannabis. It will allow for expiry rather than suspension of records related to decriminalized offences, without the need for an application. Furthermore, it will do so in a way that does not burden the parole board with the cost and complexity of managing four — four, honourable colleagues — streams of application and review processes: original pardon applications from the pre-record suspension days; record suspension applications; record expungement applications under Bill C-66; and now, with Bill C-93, cannabis record suspension applications.

The added hardship that we impose indefinitely on those who have finished their sentences is a necessary consequence of a criminal conviction; it is a policy choice, and one to which fewer and fewer jurisdictions are cleaving. Canada is choosing to impose the burden of a criminal record on those who have gone many years without being criminalized and are no more likely to be convicted of a crime than anybody else.

This decision is not only a waste of time and money, it is also fundamentally unjust. The majority of federally incarcerated people are parents. Children disproportionately bear the costs when their parents’ criminal records prevent them from being able to provide both economic and other supports. To name just one example, a woman I know named Alia was sentenced to five years in prison when she was just 19. Her imprisonment on drug-related charges was a result of her attempts to negotiate poverty and support her young son.

She is now 30, and her younger son, born after she was released from prison, begs her to volunteer at his school. In December, it was to build gingerbread houses. She can’t even volunteer to support his school teams. She can’t volunteer to assist him with his special needs. Even though she regularly speaks at schools about her past in an effort to prevent kids from getting involved in crime, she is precluded from volunteering in her son’s classroom because of her criminal record. She lives with her son in an apartment that runs out of water in the summer. The ads for other accommodations require her to pass a criminal record check.

It does not make economic sense for the state to punish people by interfering indefinitely with their participation in the economy, especially since there is evidence that people with records can be especially good workers when given a chance. In many cases, they choose to run their own businesses, knowing that a criminal record can be a hurdle to applying for jobs, and end up creating much-needed additional jobs in their communities.

That was the case for a Calgary man who has turned his life around since pleading guilty to a weapons charge almost 10 years ago. He has since set up a successful café in a trendy part of Calgary but fears he may have to close because all of his competitors are getting liquor licences, which he can’t do because of his criminal record.

Those who are affected by criminal records legislation include mothers working to support their children and small business owners struggling against the odds to get ahead. They continue to be punished and are required to pay the price of a criminal justice policy that wants so badly to appear “tough on crime” that it disregards empirical evidence about what will actually benefit communities.

It is not only counterproductive to stigmatize people for life; it is also at odds with key Canadian values. The Supreme Court of Canada has said so in no uncertain terms:

The right of individuals with criminal convictions to employment and to re-enter the labour market are important values in our society. . . . Individuals who have paid their debt to society are entitled to resume their place in society and to live in it without running the risk of being devalued and unfairly stigmatized.

All of us at some point have done something that we know was wrong, that we regret, but none of us here are forever defined by the negative things we’ve done. Those of us without criminal records live without the burden and stigma of having that moment raised in job interviews, education or housing applications; that introduces us to our neighbours, our would-be employers, our colleagues or friends.

It is fundamentally unjust to continue punishing and stigmatizing without reason those who have long since been held accountable and served their sentences. Public safety is enhanced when individuals are allowed to find stable employment, housing, and volunteer or otherwise contribute to their communities as valued members.

Honourable colleagues, let us work together to bring about long overdue, evidence-based changes to the criminal records system in Canada. I look forward to your support of this bill. Thank you.