Moved second reading of Bill S-214, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.

She said: I rise to speak to Bill S-214, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.

This year, the Criminal Records Act turns 50. In 1970, this legislation was introduced based on an understanding across party lines that all of us benefit when individuals who have been held accountable for their actions and fulfilled all aspects of their sentences are able to move on with their lives and contribute to their communities.

Fifty years ago, Conservative solicitor general critic Robert McCleave marked the creation of the pardon system with the following words:

. . . 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. . . They should not have a bad name hanging over them for the rest of their lives.

Earlier in his speech he stated:

We have done something which would help a person obtain a pardon without going to frightful legal expense . . . the request is put in and it will be processed without any cost to the person concerned except the cost of the stamp and his own time in writing the letter.

In the years since then the name of the system has changed. It is no longer the pardon system; it is the record suspension system. As a result of changes to the rules, individuals now wait longer, pay more, have to meet more requirements and face the spectre of records ceasing to be suspended. These changes have been sold as ways to make us safer, but the available evidence indicates they do not. Rather, they punish and discriminate.

Bill S-214 proposes a streamlined system of record expiry, sometimes known as expungement, after two or five years pass without new convictions or pending charges. The bill is based on the understanding that accessible criminal record relief and public safety go hand in hand.

Given the paucity of reporting when it comes to violence against women and children, as most know and experts confirm, record checks alone are not an effective means of protecting women and children from harm. Nevertheless, as an exception to the streamlined deletion of criminal records, Bill S-214 would preserve the mechanism of vulnerable sector checks to detect expired records when someone applies to work with children or other vulnerable people.

Canadians value humanity, fairness and common sense, and there is a general consensus on the need for accessibility of record relief as a non-partisan issue.

In 2018, the House Public Safety Committee released a cross-party report that recognized the current criminal record system poses barriers to “employment, housing, education, travel, adoption and custody of children.”

Liberal, Conservative and NDP committee members agreed that it was time for the government to “examine a mechanism to make record suspensions automatic,” in at least some circumstances.

One of the most significant barriers to accessibility in the current system is cost. The cost of a record suspension has soared from the cost of a postage stamp to submit the application referred to by Mr. McCleave to $50 in 1995, then to $150 in 2010, and then to $631 in 2012. This does not include the additional costs such as fingerprinting and obtaining original copies of records that can add hundreds of dollars. An automatic cost-of-living increase will add another $13 this April, and in the not too distant future fees may exceed $1,500.

Perhaps $631 doesn’t seem like much to some of us. However, most applicants try to obtain a record suspension in the hope of finding a job and, generally speaking, getting themselves and their family out of poverty.

Since the introduction of the $631 fee in 2012, applications for record suspensions have decreased by 40%. Thousands of Canadians are unable to apply for record suspensions not because they are identified as a public risk but because they are poor.

When the $631 fee was established, the stated rationale for the fee hike was cost recovery. The danger of cost recovery is that as fewer applicants come forward, the administration costs per application must rise as a result. Maintaining cost recovery will eventually cause fees to spiral even further out of reach.

The senselessness of adhering to this system is clear when contrasted with other available means of recuperating costs. 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 tax. Public safety officials also indicate that record suspensions is the only program within their department held to this full cost recovery standard.

We can speculate as to reasons why. Record suspensions are often spoken of as if they are a privilege, but in most legal systems that are comparable to Canada’s, the stigma of a record disappears if a person remains crime free for a number of years.

When the Criminal Records Act was introduced in 1970, a criminal record was not meant to be a permanent punishment. We have moved away from the terminology of pardon because it understandably conveyed the impression that it meant forgiving someone 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. A record expiry scheme is not a scheme for forgiveness. It simply reflects the principle that punishment at some time must end or else risk perpetuating injustice.

Those who cannot afford a record suspension face punitive barriers to jobs, housing, education, volunteer work and even the ability to parent, all of which hinder rather than enhance public safety. They face a discriminatory system that turns historical convictions into lifelong sentences for those who are poorest.

Since the introduction of a previous version of this bill last year, our office has heard from Canadians and their families saving for record suspensions and working to navigate this punishingly complex system. Too often concerns about publicly exposing their own or a loved one’s historical criminal record prevent them from speaking out. They have done their part. They are working to contribute to their communities. They have paid and continue to pay daily the price of our failure to act.

Bill S-214 addresses the concerns we heard by the Canadians affected, the Parole Board of Canada and other government representatives through public consultations, parliamentary committee meetings and minister’s statements. It became obvious to us that the fees, red tape and length of the process for record suspensions are all too often insurmountable and give rise to a discriminatory system, especially for the poor.

In response, Bill S-214 sets out a single, less cumbersome system in which criminal convictions expire after a certain number of crime-free years in the community. Research demonstrates that after a few crime-free years, those with historical convictions are no more likely to be subsequently convicted of a crime than a person who has never been convicted of a criminal offence. Beyond this point, there is no use or no justice in continuing to punish them with a criminal record. By allowing records to expire based on the passage of time without subsequent convictions we can reduce costs and eliminate punitive application fees. We can also ensure that the reach and impact of criminal records do not interfere with the ability of people to find places to live, work to support themselves and their families and otherwise contribute to their communities, all of which lead to successful, crime-free community integration.

Bill S-214 builds on this chamber’s past work studying and calling attention to the need for accessible and effective criminal record relief.

Last year, Bill C-93 had the effect of adding more complexity to an already overburdened system. Before Bill C-93, the Parole Board of Canada was already struggling to administer three different streams of record applications — the general record suspension process, the former pardon process for those still entitled to use it and an expungement process for those criminalized as a result of historical discrimination against members of LGBTQ2S communities. To this, Bill C-93 added a new, fourth stream of applications, cannabis record suspensions.

When we passed Bill C-93 last year, we did so knowing that our work on the Criminal Records Act was not over. As then Public Safety Minister Ralph Goodale acknowledged, Bill C-93 “ . . . deals with only one small part of the pardon process that is in need of broader reform . . . “ due to sweeping problems of punitive costs and inaccessibility.

In addition, the effectiveness of expedited cannabis record suspensions has been limited because they are application-based. While the process does not require the $631 application fee and wait time for up to 10 years faced by other record suspensions applicants, it still relies on a variation of the same record suspension process. It requires applicants to spend time and money, often hundreds of dollars, obtaining fingerprints and RCMP records and locating original documents from court and police record keepers in jurisdictions where the charges were originally laid.

As of December 2019, these obstacles had resulted in only 234 applications and 118 cannabis record suspensions granted. This is a mere 118 of an estimated 250,000 Canadians who have some form of cannabis possession conviction.

Each additional stream of application for record relief has increased complexity and further stretched Parole Board resources. The board expressed concerns to the Legal Committee about the complex and bureaucratic nature of the criminal records systems and testified that having an integrated system to support the streamlining of the process would be useful. Bill S-214 provides just such an efficient, simplified process of record expiry.

The lack of accessibility associated with current record suspension processes has been studied in-depth. Public consultation undertaken by the Department of Public Safety Canada in 2017 found that more than four out of five Canadians support some form of automatic record expiry, that is expiry of a record without the need for an application.

A 2018 study by the House Public Safety and National Security Committee unanimously recommended that the government review:

 . . . the complexity of the record suspension process . . . 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 . . . .

At the Legal Committee, experts, including the Canadian Bar Association and the Canadian Association of Black Lawyers, recommended that relief from cannabis records not require an application. The committee heard that a key barrier to this proposal was technological; it would require a national, comprehensive recordkeeping system.

Accordingly the committee, in its report on Bill C-93, called on the government to:

 . . . accelerate reforms to the Criminal Records Act . . . examine how best to improve co-ordination of the management of records across Canadian jurisdictions and to implement the necessary technological advances to allow for a more automated approach to criminal records relief that would not require an application process or fee.

Bill S-214 will allow us to resolve the concerns emerging from the study of Bill C-93 by our Legal Committee and this chamber. This bill includes a provision to ensure that when criminal records are disclosed, they are all registered with the RCMP’s Canadian Police Information Centre database, otherwise known as CPIC. CPIC would then serve as the centralized record system required to support automated record expiry, without the need for an application by the individual.

Honourable colleagues, we have not forgotten the concerns we heard as we debated Bill C-93. Bill S-214 offers a means to ensure that no one is barred from accessing criminal records relief to which they are entitled, and that no one is unjustly punished with the continuing stigma of a criminal record, simply because they lack legal or financial resources.

As criminal record relief has become more unattainable, the use of criminal record checks has proliferated increasing at approximately 7% per year. Many employers now require police background checks of applicants and all new employees. Criminal record checks extend well beyond employment to every facet of an individual’s life from applications for housing, school, volunteer work and even as recently reported by the John Howard Society, for beds in nursing homes.

The ability of criminal record checks to increase public safety has long been contested. Research shows that past criminal convictions are not correlated with likelihood to commit an offence in the future. Yet these screening tools persist and directly affect the capacity of individuals to successfully integrate into society and impair self-sufficiency.

The punitive nature of criminal records and record checks disproportionately burdens those who are already unjustly stigmatized. Today individuals of African descent account for 8% of federal prisoners, 30% of those in federal prisons are Indigenous — 42% if you look at women in federal penitentiaries alone.

Denial of criminal record relief exacerbates the burden and stigma of a criminal record on those most likely to experience discrimination. It affects job prospects, housing situations and well-being, not only for those who have been criminalized but also their families, children and generations to come.

Honourable senators, a growing body of government and legislative work continues to expose and underscore injustices within the criminal record system. We know that criminal records discriminate against those who are poor, those who are racialized and those with past histories of trauma and resulting mental health and addiction issues. They interfere with efforts to find employment, education and housing. We know that they create barriers to successful integration and can undermine, rather than enhance, public safety. We know that the process for suspending criminal records is punishingly expensive and unnecessarily complex. It is time for legislative change.

Honourable senators, let us work together to bring about long overdue, evidence-based changes to the criminal records system in Canada. I look forward to your much appreciated contribution to this bill.

Meegwetch, thank you.