Criminal Records Act
Bill to Amend--Second Reading--Debate Adjourned
November 3, 2020
Moved second reading of Bill S-208, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.
She said: Honourable senators, we must let the scales fall from our eyes and reveal the impact of systemic racism on all our lives. Black and Indigenous peoples and other people of colour are overrepresented in the criminal legal system for reasons rooted in colonialism: decades and centuries of policies of assimilation and forced separation of parents and children, and such experiences of systemic inequality as racism, sexism, ableism, poverty and trauma.
When criminal convictions end, the punishment of criminal records continues. Public consultations, parliamentary committee work and parole board and ministerial pronouncements have all recognized the discriminatory impact of records and the reality that they create barriers to education, employment, volunteering, housing, and even access to long-term care.
For Indigenous peoples, Black Canadians and people of colour who now represent more than half of women in federal prisons, records entrench and exacerbate systemic racism.
Records keep people and their families living on the margins. They lock people into vicious cycles of poverty from which they cannot escape. Where relief from a criminal record is inaccessible, punishment is indefinite. Despite section 11 of the Charter — which prevents punishment for a conviction from extending beyond the end of a sentence ordered by a judge — people with records continue to be marginalized and stigmatized. This undermines public safety and perpetuates systemic racism by interfering with their ability to rebuild their lives and integrate into the community.
In 2018, the House Public Safety Committee released a cross-party report identifying concerns about increasing barriers within the record-suspension system that Canada currently relies on to provide relief from criminal records. As the result of changes in recent years, individuals now wait longer, pay more and face more records-related barriers. Liberal, Conservative and NDP committee members alike agreed that it was time for the government to “examine a mechanism to make record suspensions automatic” in at least some circumstances.
Bill S-208 is designed to improve access to timely relief from the burden of a criminal record for those who have been held accountable, served their sentences and are working hard to move on. It provides a streamlined system of conviction expiry, sometimes known as record expungement, after two or five years pass without new convictions or pending charges. It would not require individuals to make an application or pay a fee in order to access record expiry. The bill is based on the understanding that accessible criminal record relief, equality and public safety go hand in hand.
As an exception to this streamlined deletion of criminal records, Bill S-208 would preserve the mechanism of vulnerable sector checks to detect expired records when someone applies to work with children or other vulnerable groups.
As barriers to criminal record relief have increased in recent years, so too has the use of criminal record checks as a gate-keeping function, keeping people out of the workforce, out of volunteer work, education, housing, and as I mentioned earlier, even long-term care.
Research shows, however, that past criminal convictions are not correlated with the likelihood that a person will commit an offence in the future. Research also shows that one of the surest ways to prevent people from being criminalized is by ensuring they have opportunities to find jobs and make meaningful contributions to the community.
What the current restrictions on criminal record suspensions are doing, in effect, is not keeping anyone safe. What they are doing is trapping more and more people at the margins, in desperate situations, without the means to support themselves and without a support network to turn to. We are creating a group of people who are infinitely further subject to criminalization, and the people this is happening to are disproportionately Indigenous, Black and people of colour.
People too often think of a record as a comprehensive portrait of a person. In reality, it is a snapshot of a person at one moment, usually the worst moment of their lives. It does not account for how one got to that point, including the role played by systemic racism, inequality, injustice, and denial of the opportunities and choices that many of us take for granted.
Nor does it account for how people have lifted themselves up since that point and what they could achieve if given a chance. One woman described to me the experience of having a criminal record as:
... a hall of mirrors in a carnival. Your record is like a distorted mirror, misrepresenting who you are to yourself and to the world. Everywhere you turn your record stares you in the face: at your job interview, at every meeting at your child’s school council.
In 2018, 60% of Toronto employers required police background checks for all of their new employees, and the majority of employers had never knowingly hired anyone with a record. The Canadian Civil Liberties Association estimates that the rate of records checks a person is subjected to has risen in recent years to close to 7% per year, a substantial increase.
Racist stereotypes and biases amplify the conclusions employers draw based on criminal record checks and the opportunities they are willing to offer. According to a study done in Toronto, callback rates for job applicants with a record of a summary conviction drop by about 40% if they are Caucasian. If they are Black, callbacks drop by 85%.
Even for Canadians with record suspensions who were charged but never convicted, past charges and convictions continue to leave their mark and linger on the internet as a result of the lack of a so-called “right to be forgotten,” such as exists in Europe. As one single mother put it:
I hold my breath every time I apply for work or try to volunteer to help others, not knowing how my past will continue to haunt me.
The criminal record reform proposed in Bill S-208 alone is not a sufficient response to discrimination and stereotypes that persist against people looking for a way to move on, but it is one step. Record reform is an opportunity for Canada to begin to redress the systemic racism and intergenerational trauma that not only contribute to criminalization of Indigenous peoples, Black Canadians and people of colour, but are exacerbated when people are jailed. Mass incarceration has too often left families and communities torn apart in ways that repeat the forced separation of children, parents and communities by residential schools — the so-called Sixties Scoop — and the child welfare system.
When people are released from the criminal legal system with records, children also bear the brunt of these costs. Most women with records are single mothers and many have young children. The effects of social exclusion and stigma are not confined to these women. They have a negative impact on the long-term physical and mental health of their children too.
Records prevent families from being able to make healthy choices, eat healthy food and find safe and stable housing. Children are affected when their mothers cannot volunteer at their schools. As Alia Pierini, a mother trying to get on with her life says:
My younger son, who I had after my incarceration and doesn’t really know about prison, begs for me to come and volunteer at his school and come build gingerbread houses and come ... on field trips and I’m not allowed to .... My kids shouldn’t be still paying for my crime.
But children clearly do pay. They pay when mothers lose custody, or when rising rates of record checks or civil screening hinder their mothers’ ability to find work and make ends meet. Records affect the opportunities that children have to learn and socialize in ways that too often can last a lifetime. Increasingly, permanent criminal records are helping to pass down experiences of poverty, marginalization, oppression and systemic racism to future generations.
Between 3 and 4 million, or around 1 in 8 Canadians, has a record. Research confirms that within a relatively short number of years after completing one’s sentence, the majority of Canadians with records are no more likely than others to commit a crime. Beyond this point, there is no use and no justice in continuing to punish people with a criminal record. In fact, records hinder us in our goals of preventing harm and crime. Empirical evidence shows that sealing records and helping people find employment reduces the chances of them ever being criminalized again.
Over the past 15 years, more than 95% of Canadians who have received pardons or record suspensions have remained crime free. Community safety and the integration of people into society are sometimes pitted against each other as a zero-sum choice. This, colleagues, is a false dichotomy. Giving people a second chance provides them with a powerful incentive to turn a new leaf.
Bill S-208 will remove barriers to record relief for those who have long since served their time and been held accountable. In doing so, it would contribute to making communities safer, and redressing long-standing systemic racism and inequality within the criminal legal system. Bill S-208 would uphold equitable access to record suspensions by also making the process free. Currently, a record suspension costs $645 in application fees alone, not counting hidden costs, including obtaining fingerprints or supporting documents or legal support.
For those of us accorded the privilege of sitting in this chamber, $645 may seem negligible; however, for a single mother trying to get by on criminally low social assistance rates, unable to even accept help paying for groceries without risking losing her assistance and possibly the roof over her head, $645 is prohibitive and completely out of reach.
Current application fees and procedures render the present criminal records system two-tiered and unjust. Those who can pay are able to remove their record, while those less well off and living in poverty cannot.
In public consultations, 96% of Canadians rightly expressed concerns that the current exorbitant application fee contributes to a vicious cycle in which people do not have employment and are unable to afford the fee, but they can’t find employment because clearing criminal records is too expensive.
Records removal is particularly vital because of the way the Canadian Human Rights Act defines prohibitive grounds of discrimination for the purpose of upholding human rights:
. . . race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
Currently, only five jurisdictions in Canada — Yukon, British Columbia, Quebec, Prince Edward Island and Newfoundland — offer some form of protection, albeit too often inadequate in practice, against discrimination on the grounds of a criminal record that has not been pardoned or suspended.
In other provinces and territories, and under the Canadian Human Rights Act, only those with suspended or pardoned records have access to the human right to be free from discrimination under Canadian law, including as they seek adequate housing, pursue employment and in every other facet of their lives affected by records. Vast numbers of Canadians are being deprived of rights — despite having long since paid their dues to society — for reasons that have nothing to do with public safety and everything to do with the ability to pay, economic marginalization and systemic inequality and racism.
In January 2016, the then Public Safety Minister announced his intention to consider meaningful reforms to the Criminal Records Act, in particular to the application fee, which he identified as “punitive.” Application fees were suddenly raised to their present rates, between 2010 and 2012, in order to attempt to fully cover the cost for the government of providing record relief. Currently, the records system is the only program under Public Safety’s mandate that is expected to operate on the basis of “full cost recovery.”
Following this fee hike, applications for record suspensions went down by 40%. The system is simply unaffordable —
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Thank you, Your Honour, and thank you to the translators.
In the years since the previous minister acknowledged this injustice, two public consultations — one by Public Safety and the other by the Parole Board of Canada — have demonstrated an overwhelming public consensus that the current onerous application process and fees are unacceptable.
Last month, the Speech from the Throne promised action to address systemic racism within the criminal records system. Meanwhile, the application fee continues to increase.
Precipitous costs have not always been the norm. At the time the pardon system was introduced in 1970, the application fee was the cost of a postage stamp. Colleagues, the cost to mail in a request was 6 cents.
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. As 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.
Bill S-208 would restore Canada’s records system to this vision of simplicity, justice and effectiveness. The Parliamentary Budget Officer recently estimated that Bill S-208, primarily as a result of eliminating application fees, would cost $5 million. While this is not a large amount when placed in the context of Canada’s significant spending on the criminal legal system, once downstream effects are factored in, the bill is actually expected to help generate revenue. According to Public Safety Canada, every dollar invested into improving access to criminal record relief results in $2 that Canada can recuperate through taxes paid by individuals who have been able to find work or higher-wage work as a result of having their record removed.
Costs would likely be further offset by a streamlined process where eligibility for record expiry depends on having lived crime-free for a certain number of years since one’s conviction, removing the need for a review of files by the Parole Board in Canada in most cases. This emphasis on passage of time in the community crime-free as a single and simple condition for record expiry reflects two recent and key trends in criminological data: first, that once a relatively small number of years have passed, those with prior convictions are no more likely than anyone else to commit a crime; and second, that we can promote successful reintegration and prevent people from being criminalized again by supporting access to jobs and meaningful community connections. This includes lifting barriers to criminal records.
The current process for applying to the Parole Board for a record suspension is so complex and convoluted that if you lack time or resources or need additional supports, then relief is all too often inaccessible. Assembling the documents currently required to make an application can mean travelling, often long distance, to various offices or departments housing original versions of one’s records, as well as paying additional fees for fingerprinting and other recordkeeping. These steps can easily bring the cost of obtaining a record suspension well over $1,000. In addition to these costs, too many are ensnared by businesses that will exploit those already marginalized with promises to guide them through the record suspension process.
In public consultations, more than four out of five Canadians urged the government to consider a more automatic process for relief from criminal record. Liberal, Conservative and NDP members of the House of Commons Public Safety Committee likewise supported investigation of the potential for a more automatic form of record relief.
Bill S-208’s conviction expiry process reflects the principle that when we, as a society, decide to hold someone accountable for their wrongdoing, we must not do so by inflicting hardships that further perpetuate injustice. Records should not be a permanent source of stigma and marginalization, particularly for those dealing with the effects of systemic racism and inequality.
In public consultations, the majority of Canadians have also stated loud and clear that the record suspension system is overly punitive and that wait times are too long. Bill S-208 restores the original wait period following the completion of sentences: two years for summary convictions or five years for indictable offences. Without new convictions or pending charges, records will expire.
Data demonstrates that additional years make no significant difference in terms of the likelihood of an individual being criminalized again. The added years do, however, put people’s lives and meaningful public participation on hold. Reducing wait times helps people to move on with their lives and contribute to the community.
As one woman recently wrote to us:
Giving my time to others gave me reasons to live and helped me rebuild my life. In giving back to the community. I found purpose and the hope to go on. But to a large extent my hands were tied by the system and by my record. I tried to volunteer at a local retirement home and when my volunteer check was not cleared, I was denied the ability to give back to the community.
Bill S-208 would also streamline the administration of the criminal records system to the benefit of the Parole Board of Canada.
The current criminal record system creates significant administrative complexity, costs and burdens by requiring the Parole Board to manage four separate systems for processing records: regular record suspensions, the pardon system that still applies to older convictions, the expungement system introduced by Bill C-66 and the cannabis record suspension system created by Bill C-93.
Bill S-208 would allow expiry of all these types of records through a single system. Our recent experiences, colleagues, with Bill C-66 and Bill C-93 provide examples of how the criminal legal system is too often a tool of discrimination and show that merely tweaking the existing application process for record suspensions is not sufficient to redress these glaring injustices in a meaningful way.
Bill C-66 decriminalized convictions arising from discrimination against the LGBTQ2S community. The expungement process it put in place aimed to attenuate some of the most punitive aspects of record suspension applications; it waived the requirement to pay an application fee and attempted to simplify the process as much as possible.
Even so, very few individuals successfully navigated the system. In the first four months of the program, only seven individuals submitted applications for record expungement out of an estimated 9,000 total eligible records. Worse yet, only two of those applications resulted in an expungement. Bill S-208 would simply permit these records to expire without individuals having to go through the application process or relive the indignity and stigma of the original wrongful punishment. This is the least we can do.
Bill C-93 fast-tracked the suspension of records for those with cannabis records prior to the decriminalization of cannabis. As the Prime Minister has acknowledged, young Indigenous and Black men are overrepresented among those with possession convictions. This is the result of both systemic and individual acts of racism, from racial profiling to over-policing of certain neighbourhoods. Like Bill C-66, Bill C-93 waived the usual application fee and aimed to create a more user-friendly application process. Yet, the most recent data indicates only 458 people have applied and only 257 people have been granted record relief. This is despite the reality that there were approximately 250,000 Canadians with some form of cannabis possession conviction.
The government’s 2019 Final Report on the Review of Canada’s Criminal Justice System recommended that we:
. . . adopt a whole-of-government approach to make pardons more accessible, to ensure that people have the opportunity to move on without a criminal record impeding their attempts to focus on the future . . .
We know record expiry can work. We have only to look to the youth criminal records management system for a model for effective record expiry that already operates within the Canadian criminal legal system. Countries such as the U.K., France and New Zealand model how automatic forms of record expiry promote safety and enhance effective community integration. Criminal records are not supposed to be life sentences. People with criminal records who have served their sentences have paid their debt. Granting a person relief from a criminal record is not about erasing the past or asking victims to forget or forgive what happened to them. That may never be possible for some.
Rather, the record expiry system proposed by Bill S-208 recognizes that as a matter of fairness and humanity, at some point punishment has to end. As the Supreme Court of Canada has said, in no uncertain terms:
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.
In relatively short order in the vast majority of cases, criminal records stop serving any public safety purpose. In fact, they undermine public safety by interfering with opportunities for people to integrate into the community. What is worse, they become tools for continued discrimination and oppression of those who have too long been marginalized, particularly by systemic inequality, most especially racism. They become a pretense for looking the other way. People do better and communities thrive when all have opportunities to contribute and to support themselves.
Honourable colleagues, let us work together to bring about this long-overdue evidence-based change to the criminal records system in Canada. Meegwetch. Thank you.
Would Senator Pate take a question? Under your bill, are there any proposed limitations to these more easily obtained record suspensions based on the severity of the criminal convictions, other than the distinction I see you’ve made in the bill between indictable and summary offences? And if there aren’t, why not? Wouldn’t you agree that the most serious crimes in the Criminal Code should result in a lengthier time frame than less serious indictable crimes, for example?
There is a provision to ensure vulnerable record checks, which, of course, would cover the types of records you’re talking about — sexual offences and some particularly violent offences — which would allow for the expiry process to be either delayed, not to be put in place or for the record to be resurrected if there was a need for it to be.
It’s not that there’s a particular definition of one that wouldn’t be included — except, of course, life sentences because there’s no end to them. For all of them, it would commence after the end of a set period after the end of sentence, unless the person has come to the attention of authorities, in which case there would be an investigation and appropriate proceedings.
It sounded like you briefly referenced this issue in your speech today, but I wanted to perhaps give you a chance to tell us a little bit more.
As you referenced, right before the end of the Parliament, before the 2019 election, the Trudeau government did hurry through a bill regarding record suspensions for marijuana possession. As you indicated, there have been a minuscule number of what was termed as “pot pardons” that were granted because of that government bill. I would personally add that this was shocking because there was a lot of fanfare that the government gave to that particular bill before the election. I think Canadians may have been under the impression that more people were entitled to these record suspensions than actually received them.
Was this a significant factor in you determining to bring this particular bill forward?
Thank you for that question as well, Senator Batters.
This bill is very similar to the previous bills I tabled before that information was brought forward by the Minister of Public Safety and by the government. But the reality is, yes, the fact that the provisions that the government brought in, trying to ameliorate and speed up the process and make it more accessible to people who shouldn’t have those records hanging over their heads anymore, was part of the reason I reintroduced it and part of the reason why we included a provision requiring that records be entered into a central database to make that easier. That was the issue the minister of the day indicated was the impediment to this type of approach.
Senator Pate, the premise of your bill seems to be what you call systemic racism toward Indigenous communities, or at least toward Indigenous people who are incarcerated.
The first question I have for you is this. Why did you not introduce a bill that specifically targets people from Indigenous communities so that they can have quicker access to pardons?
I’m sorry, but I will have to respond in English, Senator Boisvenu.
That’s an interesting proposition. It’s certainly something that, if you wanted to add an observation, we should in fact fast-track some of the individuals who are particularly discriminated against.
The issue is a broader one — particularly I mentioned women, as well as those trying to integrate into the community — so it’s a measure that applies overall. It’s the amplifier effect of other inequalities, whether it’s sexism, racism and, in particular for Indigenous people and people of colour, that has amplified that issue. I don’t think it would be appropriate to only include one group. We should, in fact, be looking at opportunities.
By focusing on the particular ways in which discrimination is exponentially amplified in our criminal legal system, it provides yet more reason why we should embark on this avenue.
I understand that you don’t want your bill to focus on specific groups, but your entire speech focused on these specific groups. Perhaps you should change your speech.
I have a second question. If we compare the current process, where people can get what was once called a pardon, which wipes out their criminal record, to the process you are proposing, how many more people would be pardoned in the next five years?
That’s a very good question. We have, based on what the Minister of Public Safety has indicated in previous hearings related to segregation, on average approximately 5,000 people coming into the system. It would depend on how many are coming out at the other end. That’s a good piece of information, and I will endeavour to find it for you.
I would like to ask one last question.
We know that the recidivism rate for some categories of criminals is over 50%. I am thinking particularly of sexual predators and pedophiles.
Bill S-208 excludes these repeat offenders and, when they obtain a pardon, the police have access to their criminal record only if a crime is committed. That means that if a police officer intercepts a sexual predator who is hanging around a school or a rapist who is hanging around a park, the police officer does not have access to that person’s criminal record if the person was granted a pardon.
Do you agree that Bill S-208 excludes criminals who commit serious crimes against women and children?
I would disagree with that because part of the reason that so many issues came up in the past about records and when the pardon process was changed to a record suspension process, it was regarding a number of high-profile cases that involved people with significant influence. I would posit it was in large part because violence against women and children, and in particular women, hasn’t been taken very seriously historically, so there were disproportionate numbers who were receiving pardons. That was certainly an issue.
In this bill, you will see that it allows for the ongoing ability to look at the aspects that would contribute to the need for vulnerable sector checks.
So I would disagree. I don’t think, in fact, it would put people at greater risk. It actually provides greater protection.
By way of information, Senator Pate, currently, when a patrol car sees a suspicious person near a park, if the police officer runs the individual’s licence plate, there is nothing to indicate that the person has a criminal record because he obtained a pardon and his criminal record is strictly an RCMP record.
To get access to a criminal record, a crime needs to have been committed and a request for access to the record needs to be submitted to the RCMP. By eliminating the record of these dangerous criminals, aren’t you putting the safety of women and children at risk?
That’s an excellent point, Senator Boisvenu, and precisely why a component of this version of the bill, unlike previous versions, ensures that all records must be entered on the CPIC system to obviate exactly the concern you’ve just raised.