Honourable senators, I rise today to speak to Bill S-208, Senator Pate’s bill to amend the Criminal Records Act to provide for the expiry of criminal records. This would allow a more automatic system of record suspensions rather than the more onerous and costly current system of application for a pardon.

I certainly appreciate Senator Pate’s perseverance to see this bill come to fruition. She introduced these measures first as S-258, then S-214, and now as Bill S-208. And while I can understand Senator Pate’s attempt to reduce stigma and discrimination for offenders who have already paid their debt to society, I have some serious concerns about the unintended consequences of this bill.

First, I am concerned about whether sufficient safety measures are built into this process. The current Criminal Records Act stipulates that a person charged with a schedule 1 offence, including many sexual offences against children, is not generally able to receive a pardon.

Bill S-208 would ensure criminal records will expire after a given period of time so that a person who had served his or her sentence would not have to apply or pay a fee to receive a record suspension. Instead, it would happen automatically.

Under the current Criminal Records Act, a person can apply for a record suspension after 10 years has passed since the completion of the sentence for an indictable offence, and after five years in the case of a summary conviction offence.

In Bill S-208, Senator Pate wants these waiting periods to be cut in half. Records would expire after only five years for an indictable offence, and two years for a summary conviction. I submit that slashing these wait times before a criminal record would expire could have devastating consequences for the safety of society. The chance of recidivism tends to decline with a longer period of time from the completion of one’s sentence.

My biggest concern with the bill is the complete removal of schedules 1, 2 and 3 from the Criminal Records Act. This is a massive change to the safety protections built into the act. Currently, schedule 1 outlines offences that would make an offender ineligible for a record suspension.

I want to read these offences into the record because under Bill S-208 — which would see this entire list deleted — an automatic, free record suspension could be available to an offender who would have served their sentence for crimes such as: sexual interference with a person under 16; invitation to a person under 16 to sexual touching; sexual exploitation of a person 16 or more but under 18; bestiality in the presence of a person under 16 or inciting a person under 16 to commit bestiality; child pornography; parent or guardian procuring sexual activity; householder permitting sexual activity; making sexually explicit material available to a child under 18 for purposes of listed offences; making sexually explicit material available to a child under 16 for purposes of listed offences; making sexually explicit material available to a child under 14 for purposes of listed offences; corrupting children; luring a child; agreement or arrangement — listed sexual offence against a child under 18; agreement or arrangement — listed sexual offence against a child under 16; agreement or arrangement — listed sexual offence against a child under 14; exposure; removal of a child under 16 from Canada for purposes of listed offences; removal of a child 16 or more but under 18 from Canada for the purpose of listed offence; removal of a child under 18 from Canada for purposes of listed offences; trafficking — person under 18 years; material benefit — trafficking of person under 18 years; withholding or destroying documents — trafficking of person under 18 years; obtaining sexual services for consideration from person under 18 years; material benefit from sexual services provided by person under 18 years; procuring — person under 18 years; breaking and entering a place with intent to commit in that place an indictable offence listed in certain sections; and breaking and entering a place and committing in that place an indictable offence listed in certain sections.

And offences listed under previous Criminal Code versions: sexual intercourse with a female under 14; sexual intercourse with a female 14 or more but under 16; seduction of a female 16 or more but under 18; parent or guardian procuring defilement; householder permitting defilement; living on the avails of prostitution of person under 18 years; aggravated offence in relation to living on the avails of prostitution of person under 18 years; and prostitution of person under 18 years.

Let’s remember that for all of those offences and the offences I will read next, an automatic free records suspension could be available under Senator Pate’s Bill S-208, also including offences involving a child under the following provisions of the Criminal Code: sexual exploitation of a person with a disability; incest; voyeurism; obscene materials; mailing obscene matter; indecent acts; sexual assault; sexual assault with a firearm; sexual assault other than with a firearm; aggravated sexual assault; breaking and entering a place with intent to commit in that place an indictable offence listed in certain sections; breaking and entering a place and committing in that place an indictable offence listed in certain sections.

And offences listed under previous Criminal Code versions involving a child under the following provisions: sexual intercourse with stepdaughter, etc., or female employee; gross indecency; rape; attempt to commit rape; indecent assault on female; indecent assault on male; common assault; and assault with intent to commit an indictable offence.

When I questioned Senator Pate about this area after her second reading speech she said:

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 the sentence, unless the person has come to the attention of authorities, in which case there would be an investigation and appropriate proceedings.

What Senator Pate is proposing is to remove this entire list of offences currently not eligible for record suspensions, and instead leave it to a vulnerable sector record check to turn up that information. However, a vulnerable sector check would not be run in all circumstances. Section 6.3(3) of the Criminal Records Act states that a vulnerable sector check will be conducted:

At the request of any person or organization responsible for the well-being of a child or vulnerable person and to whom or to which an application is made for a paid or volunteer position . . . if

(a) the position is one of trust or authority towards that child or vulnerable person; and

(b) the applicant has consented in writing to the verification.

Senator Pate has told us that such offenders would still show up in vulnerable persons checks. While this eliminates some of the problems, in limiting access to positions working directly with youth, for example, what about the scenarios not covered by such checks? What about an elderly woman who looks after her grandchild and unknowingly rents out a basement suite to an offender who has served a sentence for sexual crimes against children or someone with a past record of aggravated sexual assault? Under Bill S-208, the offender wouldn’t even have to apply for a record suspension; it would automatically occur. That record would be sealed, that elderly landlord would be none the wiser, and we would all have to cross our fingers and hope that sex offender doesn’t reoffend. I think that risk is unacceptable and most Canadians would agree with me.

There are many other scenarios where not being aware of the criminal past of an offender could prove dangerous. Take, for example, a job where a male sex offender might work on a shift with one other female coworker, perhaps at night in a vacant or remote location. He likely wouldn’t need a vulnerable record check to work there, and under Bill S-208 his record suspension could be automatic only two years after his sentence. Is it fair for us to hide that information from his employer or a co-worker who may unknowingly be placing herself in danger just by doing her job? What about an offender who has served a sentence for aggravated sexual assault, receives a record suspension and finds employment as a realtor, where he might be showing residences to female clients alone? He is not in a position of trust or authority for a child or vulnerable person, so he might not have to undergo a vulnerable sector check, but if he reoffends, we will certainly have more vulnerable victims. It is irresponsible of us as legislators to willfully ignore the dangers this bill could unleash.

By removing Schedule 2 from the Criminal Records Act, Bill S-208 eliminates other offences for which a person has received a record suspension that would have previously been noted in the RCMP’s automated criminal conviction records retrieval system. Again, Senator Pate amends section 6.3 (2) by allowing such notations only for offences against a vulnerable person, which as I explained earlier, will not cover all situations. Offences listed under Schedule 2 — which, again, this bill would eliminate — include: sexual exploitation of a person with a disability; incest; voyeurism; obscene materials; mailing obscene matter; indecent acts; sexual assault; sexual assault with a firearm; sexual assault other than with a firearm; aggravated sexual assault; abduction of a person under 16; abduction of a person under 14; indecent phone calls; breaking and entering a place with intent to commit in that place an indictable offence listed in certain sections; breaking and entering a place and committing in that place an indictable offence listed in certain sections; and attempt or conspiracy to commit an offence referred to in any of those sections.

And offences listed under previous Criminal Code versions: sexual intercourse with a female under 14; sexual intercourse with a female 14 or more but under 16; seduction of a female 16 or more but under 18; sexual intercourse with stepdaughter, etc., or female employee; gross indecency; and attempt or conspiracy to commit an offence referred to in any of those sections. Also, rape; attempt to commit rape; indecent assault on female; indecent assault on male; common assault; assault with intent to commit an indictable offence; and attempt or conspiracy to commit an offence referred to in any of those sections.

It is alarming that Bill S-208, in deleting those schedules, eliminates the careful balance that was struck under the current legislation. Furthermore, Bill S-208 retains references to Schedule 1, 2, and 3, even while it removes the schedules completely. That is very confusing legislative drafting.

In 2018, CBC produced an article further examining the vulnerable sector check process. It described how the process worked:

Anyone who applies for a job in what the federal government considers a ”vulnerable“ sector — for example, nursing homes, daycares, taxi services or any service working with people with disabilities — is required to apply for a special background check, which combines a regular police check with a scan for suspended sexual offences.

If a suspended offence record pops up in the course of that check, the police force that did the check won’t know what’s in it. It will notify the federal Department of Public Safety; the minister will then decide if the offence is relevant enough to the job to warrant disclosure. If the minister opts to disclose, a copy of the suspended record is returned to the applicant and the police service that oversaw the request. If it’s denied, the background check is returned as having found “no record.”

I find it alarming that a response deemed irrelevant is returned as having found “no record.” This gives a false sense of security to the person applying for the vulnerable sector check. Furthermore, as the article went on to explain, how a minister and the government chooses to interpret the criteria for a vulnerable sector check can have a huge bearing on the outcome.

The article continues:

Under the previous Conservative government, almost all vulnerable sector checks — 95 per cent — were disclosed to police and applicants. That number dropped to 38 per cent under the Liberals.

Ralph Goodale was the Minister of Public Safety during that plummet.

The same article went on to reveal:

. . . researchers said it’s “not relevant” to disclose a suspended sex offence if the applicant has applied to work with the elderly and their past offence involved children.

A Public Safety document quoted by the article states:

“Due to their sexual preference pertaining to children, it is highly unlikely that they will offend against the elderly.”

I suppose we’re supposed to find that comforting, but I definitely don’t and Canadians won’t either. People don’t expect an offender’s criminal record to potentially disappear in less time than it took an offender’s case to work its way through the court system. As a lawyer and long-time member of the Standing Senate Committee on Legal and Constitutional Affairs, which studied the issue extensively, I am well aware of how prolonged some court delays can be. Even with the new Jordan timelines to try to expedite the process, with appeals, a case can still ultimately spend years in the courts.

Canadians are frequently shocked at how light the sentences are for many types of crimes. The reality is that, in Canada, we already have significant reductions in sentences received, especially compared to the U.S., and the time actually served by offenders is also much shorter in Canada. With good behaviour, for example, some offenders serve only one third of their sentence in custody. Most offenders serve only two thirds of their full sentence. When this happens for particularly egregious crimes, Canadians’ confidence in the justice system is rightfully shaken.

Furthermore, Senator Pate’s bill would completely remove the waiting period before record expiry for an offender convicted under the Youth Criminal Justice Act, even if they are over the age of majority upon release. Many Canadians already feel that treatment of young offenders in our criminal justice system, especially for those who are nearing the age of adulthood, is too lax. Providing these offenders with an automatic record expiry with no waiting period would likely only inflame those feelings in the Canadian public. Certainly, some waiting period would be warranted.

It was the previous Conservative government that originally changed the term “pardon” to “record suspension” in the Criminal Records Act. The Harper government also increased the length of time between the completion of a sentence and an application for a record suspension to 10 years for an indictable conviction and five years for a summary conviction.

On many members’ minds at the time was the case of former hockey coach Graham James, a serial sexual predator of children. James received a three-and-a-half-year sentence for his repeated sexual abuse of two teen hockey players, Sheldon Kennedy and another unnamed victim. Graham James assaulted his victims hundreds of times.

He received a pardon in 2007, five years after he completed his sentence, in accordance with the pardon rules at the time. Canadians with rightfully outraged that a repeat sexual abuser such as James could potentially receive a pardon after only five years. He then moved to Mexico and coached hockey in Spain before being charged with further sexual abuse of more victims, including Theoren Fleury, stemming from James’s years as a coach in Western Canada. He received a two-year sentence for pleading guilty to these further crimes and, on appeal, his sentence was increased to five years. James was released on full parole by the National Parole Board in 2016.

In fact — small world — Senator Gold was on the National Parole Board at the time and was quoted in media reports as having participated in Graham James’s parole hearing and decision, at which time James was then released into the city of Montreal.

Going back to the Graham James 2007 pardon, it is important to remember that news of that pardon did not emerge until three years later, in 2010, but it was a bombshell for the Canadian public. Sheldon Kennedy described his feelings about James’s pardon this way:

Children who are victimized spend a lifetime trying to explain what happened to them and working to restore their emotional well-being. Meanwhile, perpetrators get pardoned.

Victims often struggle with emotional issues, alcohol, drug dependency, and suicide. They have to seek out their own forms of rehabilitation. Perpetrators typically get forced treatment and many get rehabilitated, on paper. However, research shows that pedophiles can rarely be rehabilitated. Interesting. So how can they be pardoned?

My abuser got three and a half years for his crimes and was released after only 18 months. Then he got a rubber-stamp pardon and took off to Mexico, where he had a clean record, a name change, and a chance to start offending yet again. Is there a parent in this country who would have an issue with protecting their children from this animal and others like him? He and other perpetrators should never be allowed to get a pardon, period.

Upon hearing of James’s pardon in 2010, then-prime minister Stephen Harper vowed to change the rules immediately to prevent similar offences from happening in the future. Then Prime Minister Harper also noted that any system that grants pardons to 99% of applicants needed to be overhauled.

A further motivation for the Harper government in amending the rules around the granting of pardons in 2010 was the pending pardon application date of July 5 of that year for notorious killer Karla Homolka. Homolka pled guilty to manslaughter and received a controversial plea deal, which resulted in a sentence of 12 years’ imprisonment for her role in the rapes and murders of teenagers Kristen French, Leslie Mahaffy and Homolka’s own sister, Tammy, with her partner, serial killer Paul Bernardo.

The Conservative government split the pardons bill in two. With the cooperation of the opposition, including Liberal opposition house leader Ralph Goodale, they were able to pass Bill C-23A quickly through Parliament quickly near the end of June. Homolka’s manslaughter conviction was therefore excluded from pardon eligibility.

Honourable senators, Bill S-208 would largely walk back the important changes to pardons that the Conservative government put in place to protect the Canadian public.

There has been a push in this Trudeau government to dismantle laws established by Conservative Prime Minister Harper simply because of a partisan dislike for him and the Conservative Party. Believe it or not, honourable senators, a law is not worthless simply because it was put in place by a Conservative government.

The Conservative government implemented these changes to ensure the Canadian public would have greater faith in the justice system. These rules ensure that the length of time required before applying for a pardon was reflective of the severity and circumstances of a conviction and that such factors were taken into consideration before granting record suspensions. We should not be reversing those gains now, especially not by way of an individual senator’s Senate public bill.

A criminal record suspension should not be an automatic default. It is a privilege, not a right. Committing a criminal act is a voluntary decision, and it is a crime against Canadian society as a whole. It rightfully comes with a heavy price. Part of that price is having to prove a commitment over a lengthier period of time to living a life free from further crime after one sentence is complete. I submit that five years for an indictable offence and two years for a summary offence is insufficient to prove that commitment.

Bill S-208 badly fails victims of crime. It does not seem to take into consideration the spirit of the Victims Bill of Rights.

Victims should have the right to be notified before individuals who have served sentences for serious offences are granted a record expiry. Clearly, this would have a serious impact on the sense of safety and security of victims and their families. Many victims will relive their past trauma every day of their lives. Unlike an offender with a pardon, they can’t just wipe the slate clean and move on. In many cases, victims and families will live with their losses forever.

Granting offenders an automatic record suspension after only a short period of time displays a lack of respect for victims in this process.

Senator Pate has indicated that she was partly inspired to propose this particular iteration of Bill S-208 after reviewing Bill C-93, the Trudeau government’s pot pardon legislation. I would caution you to temper your expectations for this bill, Senator Pate, given the Trudeau government’s abysmal failure in granting pot pardons. First, the government couldn’t get its numbers right. When the bill was first tabled, Minister Bill Blair suggested that the number of Canadians with a possession charge for marijuana could be as high as 400,000, but that the government reasonably expected 70,000 to 80,000 to apply for a pot pardon. Justice Minister David Lametti suggested that more than 250,000 Canadians had “some kind of cannabis possession conviction” on their records. He stated:

We’re hoping by expediting the process to make the number of people who have access to the pardon reach into the thousands.

In response to my questions at the Senate Legal Committee, senior government officials testified that the likely number was probably closer to 10,000 people.

And the truth? In the year that followed the enactment of Bill C-93, the federal government had ordered only 265 pot-possession record suspensions. Fewer than 300, honourable senators, out of a predicted almost half a million. That is Liberal math. That is the mark of a government out of its depth. That is an indicator that this Trudeau government will do and say anything it can to get votes and distract Canadians from the real picture.

The Trudeau government wanted a shiny bauble to put in the window for the 2019 election, and so the Liberal government, aided by its Trudeau-appointed senators here, pushed the pot pardon provisions through this chamber and into law within a few days in June, right before the Senate rose. Meanwhile, many Canadians discovered a hidden roadblock in the fine print of that bill. People who were convicted of any other offences, other than simple pot possession, were ineligible to apply for a pardon for their pot possession charge. By the time Canadians were waking up to that fact, though, Prime Minister Trudeau had already received enough votes to hold on to power, even if only in a minority Parliament situation. The votes, of course, were what it was all about. Certainly, this is indicative of how this Trudeau government approaches most policies. It is not about doing the right thing, but instead the politically expedient thing.

Honourable senators, I encourage you to think about whether that is good enough for you and whether it is good enough for all of us as Canadians. We have a responsibility to keep people safe, and Bill S-208 certainly won’t do that. We can’t just close our eyes and hope that everything works out. We need to set sound, careful policy on pardons, not play fast and loose with the lives and safety of Canadians.

I certainly appreciate that Senator Pate’s heart is in the right place with this bill. Although we often disagree on policy, I don’t doubt the sincerity of her beliefs on this issue. Unfortunately, Bill S-208 just goes way too far. It would be detrimental to the safety and security of Canadians and as such, I cannot support it.

Thank you.

Senator Batters, will you take a question?

Yes.

Senator Batters, the statistics I have seen on child molesters and pedophiles show that 48% of them are at risk of reoffending after five years.

Senator Pate’s bill would effectively ensure that the criminal records of these molesters would be expunged after five years. Don’t you think that this bill could put the life and safety of children at risk, given that the police would no longer have access to information on these criminals’ past?

Thank you, Senator Boisvenu, for all of your work on that issue. Yes, that is very much a concern, especially because that person’s automatic free record suspension could happen not only after five years, it could happen after as little as two years, depending on whether it’s a summary conviction offence. It’s five years for an indictable offence. So, yes, that’s certainly a major concern and something we will need to delve into considerably at committee.

Thank you for your question and all your hard work on that issue.

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)