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Criminal Records Act

Bill to Amend--Second Reading--Debate Adjourned

November 30, 2021

Moved second reading of Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.

She said: Honourable senators, I rise to speak to Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation. This bill will remove unnecessary obstacles to community integration for those with criminal records who have been held accountable for their actions, have fulfilled all aspects of their sentences and are trying to move on with their lives.

Bill S-212 proposes three key measures: one, the expiry of records rather than mere suspension, with some limited exceptions for records related to sexual assault; two, a return to the original wait periods for the Criminal Records Act, namely, two years for summary convictions and five years for indictable offences; and three, the shifting of responsibility to government actors to ensure expiry of records once these wait periods elapse without subsequent convictions or charges, rather than putting the onus on individuals to shoulder the current costly and onerous application process.

Bill S-212 underscores that record relief is a matter of justice and fairness, and should not be a matter of privilege accessible only to the most well-resourced. It acknowledges and seeks to redress the role of the current records system in entrenching systemic racism. It rejects knee-jerk reactions and assumptions about what it means to be tough on crime and insists on following the facts and adopting policies that will actually make communities safer and more just for all of us. It also saves money and resources, both for the people in need of record relief and for the government.

During the last Parliament, we referred a previous version of this bill to the Standing Senate Committee on Legal and Constitutional Affairs. I look forward to working with all of you to ensure the timely study of this bill this session.

For today, I will recap frequently asked questions and corresponding reasons why Bill S-212 deserves this chamber’s timely attention and support.

One, what will record expiry achieve that the current record-suspension system does not? Two, does record expiry make sentences lenient? Three, will removing stringent application requirements put community safety at risk? Four, does deleting records mean that they will lose important data? Five, can the government afford a record-expiry system? Six, does Canada have the necessary record-keeping technology in place for record expiry? And seven, isn’t the government already working on criminal records legislation?

The first question is: What will record expiry achieve that the current system does not?

An expiry system would remove barriers to moving on from a criminal conviction that arise because record suspensions are inaccessible. People who have served their time and been held accountable for their actions need employment, housing, educational and volunteer opportunities. Their ability to integrate and contribute positively is vital for the safety, health and well-being of these individuals and their communities.

Despite this reality, more punitive and restrictive rules have increased barriers to record suspensions and, as we will discuss later, they have done so despite research indicating that past criminal convictions are not correlated with recidivism, the commission of additional offences in the future.

When pardons were introduced in 1970, Conservative Solicitor General Critic Robert McCleave insisted staunchly that the only cost, other than time, should be the price of a stamp. That was 6 cents then.

In 1995, the cost of applying for record relief was $50. This rose to $150 in 2010, to $631 in 2012 and today is $657.77, increasing each year through automatic cost-of-living adjustments. In addition to fees, individuals pay hundreds of dollars in associated costs such as fingerprinting, record search fees and legal supports, not to mention the thousands of dollars paid to companies that claim to have expertise in record suspension.

In addition to fee increases, wait times for applying have doubled and processing times have exponentially increased. Also, certain types of convictions became completely ineligible for record relief.

At the same time, use of criminal record checks is proliferating, increasing by 7% per year, further magnifying the effects of these restrictions. Three in five Toronto employers now require police background checks for all new employees. Individuals face record checks in every aspect of their lives, from parenting to applications for housing, school, volunteer work and even admission to nursing homes.

Of the 3.8 million Canadians with a criminal record, about 9 in 10 do not have a pardon or record suspension.

All of us, at some point, have done something that we know was wrong, that we regret. But most of us are fortunate not to be forever defined by the negative things we have done. Nor are these how we are introduced to would-be employers, friends or neighbours. A criminal record is not a comprehensive portrait of a person; it is a snapshot of a moment — usually the worst — of their lives.

Currently, only five jurisdictions in Canada — Yukon, British Columbia, Quebec, Prince Edward Island and Newfoundland and Labrador — offer minimal protection against discrimination based on a record that has not been pardoned or suspended. In all other provinces and territories, and under the Canadian Human Rights Act, people from landlords to employers can discriminate against those who have not been able to access a record suspension, even if there is no public safety justification for doing so.

This discrimination intersects with other systemic inequalities. For reasons that have nothing to do with public safety, those who are poorest are least likely to be able to afford the costs of a record suspension. Systemic racism in the criminal legal system means that racialized people disproportionately bear the consequences of inaccessible record suspensions. Recall that African-Canadians represent 3% of Canada’s population, but about 7 to 8% of federal prisoners. Indigenous Peoples represent 32% of federal prisoners. This number climbs to 44% for Indigenous women.

Furthermore, when employers and others make discretionary decisions to give individuals with a criminal record a chance, these decisions too often operate in ways that reinforce systemic racism and other forms of inequality. One study from the United States found that the likelihood of a callback for a job interview drops by 50% for White applicants who have had to reveal a criminal record to a prospective employer. For Black applicants, it drops by 65%.

Where record relief is not accessible, marginalization as a result of criminal records becomes intergenerational. Parents struggle to provide economic and other supports for their children and children bear the consequences of their parents’ criminal records.

The record expiry proposed in Bill S-212 aims to ensure that timely record relief is available to all, including those most marginalized, by removing fees and the requirement to make an application. It aims to prevent a criminal record from becoming a lifelong sentence for those who have long since served their time.

This brings us to our second question: Does record expiry make sentences more lenient?

The short answer is no. First, the goal of sentencing is not to deliver the harshest or most punitive sentences, but rather sentences that are proportionate, fair and just. One of the key objectives of sentencing is rehabilitation, and overly punitive approaches interfere with this in ways that disadvantage all of us.

We also need to distinguish between sentences and the effects of criminal records, which linger beyond the end of sentences. Judges impose sentences based on what they determine is necessary and appropriate to hold a specific person accountable, knowing in theory — but not necessarily in practice — how sentences interact with other parts of the criminal legal system.

For example, judges may presume that people will assert their right to request parole and will have access to a suspension of their criminal record once they have served their sentence.

The reality stands in stark contrast. As a result of conditions of confinement and limited access to programs and services, sentences often end up being far harsher than what a judge anticipated and determined was fair and just.

Further, mandatory minimum penalties prevent judges from imposing a fit sentence. Overall, prisoners currently spend more time in harsh conditions of isolation and spend more time in prison, often waiting until well past parole eligibility dates before they are released.

Most relevant to our discussion today, the lack of accessible and timely relief from a criminal record extends the stigma and marginalization well beyond the end of a sentence.

Record expiry reflects the principle that when we, as a society, decide to hold someone criminally responsible and accountable for their wrongdoing, inflicting additional hardship perpetuates and perpetrates injustice. This is why section 11(h) of the Canadian Charter of Rights and Freedoms prevents punishment for a conviction from extending beyond the end of a sentence ordered by a judge. The current record system violates this principle.

Our third question is: Will removing complex record suspension application requirements increase risk to community safety?

Current punitive record suspension rules are apparently motivated often by political desire to be seen as “tough on crime.”

Despite the rhetoric, however, it is important to underscore that these changes have not improved public safety. Before the 2010 and 2012 amendments to the Criminal Records Act, a very high proportion — more than 95% — of people who received pardons were never in trouble or criminalized again and continued to meet stringent good conduct requirements. Punitive legislative changes do increase punishment, but do nothing to improve community safety.

What did change was that the number of people applying for record relief fell by 40% after the cost increased and more onerous application procedures were introduced.

The more punitive rules effectively barred access for many who would otherwise have qualified for criminal record relief and who present no threat to public safety.

Research demonstrates that one of the best indicators that a person will not be criminalized again is simply having lived a few crime-free years since the completion of their sentence. People with historical convictions are no more likely to be convicted of a crime than anyone else.

Furthermore, timely relief from criminal records can help people find housing and ways of supporting themselves, which contribute to successful integration. Indeed, as the income of a person with a record increases, their likelihood of being criminalized again decreases significantly.

The negative consequences in terms of public safety of restricting access to record relief is precisely why a former Federal Ombudsman for Victims of Crime described the 2010 and 2012 record suspension amendments as “a stupid thing to do.”

It also is for this reason that more than 60 community groups formed the Fresh Start Coalition to call for the type of measures proposed in Bill S-212. The coalition includes those working with and on behalf of those who have been criminalized, but also those who have been victimized, including the Barbra Schlifer Commemorative Clinic, Huron Women’s Shelter, Luke’s Place, the Ontario Coalition of Rape Crisis Centres, the Ottawa Coalition to End Violence Against Women, The Women and Children’s Shelter in Barrie, Timmins and Area Women in Crisis, Victim Services of Durham Region and Women’s Shelters Canada.

This brings us to question four: Does deleting records mean that we will lose important data?

Bill S-212 would apply to most types of records in the RCMP’s Canadian Police Information Centre, or CPIC, system. It would also prohibit other agencies with copies of records, like police stations, from disclosing expired records. The Criminal Records Act currently provides for two key uses of pardoned or suspended records. Bill S-212 would continue to permit both.

First, where police find fingerprints while investigating a crime or seek to identify someone deceased or incapacitated, information about that person can continue to be disclosed to police even if their record has expired.

The bill also preserves the Criminal Records Act regime for vulnerable sector checks. When someone applies to work or volunteer with children or other vulnerable people, these checks detect and flag records relating to sexual assault convictions. We must recognize that, given the realities faced by women and children who are violently victimized from lack of protection and accountability of perpetrators, record checks alone, though, will never be an effective means of protecting people from harm.

Because of barriers to reporting sexual assault, Bill S-212 also provides one exception to permanent and definitive expiry of records. Records of sexual assault listed in Schedule 1 and Schedule 2 can be retrieved based on subsequent information that a person’s behaviour should render them ineligible for record expiry.

The fifth question relates to cost: Can the government afford a record expiry system? Record relief is currently the only program within Public Safety Canada that is held to a full cost-recovery standard. The idea was introduced only a decade ago, among a host of other so-called “tough on crime” measures. This approach ignores both the public good of individuals integrating successfully into the community and the legal principle that punishment must not extend beyond the end of a sentence.

For many of us with the privilege of sitting in this chamber, an application fee of $657.77, plus hundreds of dollars in extra costs, may not seem prohibitive. Remember, however, that most people seeking record relief are doing so to try and help lift themselves out of poverty — to obtain training or employment.

Public Safety Canada data demonstrates that of the 11,158 people who had not obtained a pardon or record suspension 14 years after being released from federal prison, only 51% had been able to find jobs, compared to 69% for the general population. Their median income was zero dollars.

For those with paid work, the average income was $14,000 per year or $1,167 per month, well below the poverty line and less than half of the median income for Canadians who are not economically marginalized. Assuming monthly rent for a one-bedroom apartment across Canada ranges from about $753 to $2,216, most people would be without housing, in inadequate housing, in debt or without food, clothing, transportation or other support for themselves or their children.

Could a friend or family member help with the cost? Even if this is an option for some, those on social assistance would be liable to having their already criminally low income supports clawed back if they receive this type of gift from friends or family. Too many are also at risk of being preyed upon by companies that present as supportive yet charge exorbitant fees for negligible assistance with the record expiry process.

Imagine how many months and years it might take to save up $657.77 if paying for basic necessities would put you into debt month after month. In a country as wealthy as Canada — a country that says it values justice — people who have served their time and who have been held accountable should not have to go hungry or end up homeless in order to get relief from a criminal record that continues to trap them in poverty and contain them in the margins of society.

In addition to the human and social benefits of no-fee record relief, there are at least two compelling financial reasons for the approach in Bill S-212. First, public safety officials recognize that every dollar the government invests in record relief translates into two dollars of revenue because individuals are able to secure employment and pay income tax.

Second, having records expire after a certain number of crime-free years stands to significantly lessen bureaucratic complexities that have driven up the cost and wait times of record expiry.

From a public safety perspective, it is more efficient for criminal records to simply expire after a certain amount of time passes.

Parole Board resources have been significantly stretched by piecemeal changes to the record system that have created four different application paths for the board to administer, each with their own intricacies. One is the general record suspension process; two is the former pardon process for those who are still entitled to use it; three is the expungement process for those criminalized as a result of historical discrimination against members of 2SLGBTQ+ communities; and four is those eligible for cannabis record suspensions.

Bill S-212 would replace these with one system that allows the Parole Board to redirect its limited resources to other key aspects of its mandate.

Question number six relates to this streamlined system: Does Canada have the necessary record-keeping technology in place for record expiry?

At the Senate Legal Committee, a previous public safety minister testified that administering record expiry without applications would require a comprehensive national record-keeping system. Bill S-212 would require that if police are going to disclose an unexpired criminal record, they must also ensure it is registered in the RCMP CPIC database. CPIC would then serve as the centralized record system required to support automated record expiry, without the need for an application by the individual.

Implementation of non-application-based record expiry is not beyond Canada’s technological reach. Countries like the U.K., France, Germany and New Zealand have all implemented automatic forms of record expiry into their systems. In fact, Canada already has this type of record expiry approach as part of our youth criminal records management system.

This brings us to the seventh and final question: Isn’t the government already working on criminal record legislation?

Bill C-31, introduced just prior to the last federal election, was a step in the right direction, but it simply fell short when measured against the government’s own public consultations. Over 80% of Canadians support some form of record expiry that is administered automatically, rather than requiring an application. Nevertheless, Bill C-31 would retain complex application requirements.

Likewise, 80% of Canadians describe application fees as a significant barrier for those seeking record suspensions; over 60% described the fee and the application process as a further punishment. The government has committed to reducing fees, but has not provided details regarding the amount or the timeline.

For evidence that Bill C-31 will not meet the government’s stated objective of addressing systemic inequities in the record system, we need look no further than past criminal record reform bills, particularly Bills C-66 and C-93, which made piecemeal changes, easing some but not all of the burdens of the current system for narrow categories of applicants whose convictions related to historical discrimination against 2SLGBTQ+ communities and those convicted of possession of cannabis.

These bills removed application fees, but Bill C-31 would not.

Even with these attempts to create easier to navigate, more user-friendly applications than what Bill C-31 would offer, shockingly few people have accessed these forms of record relief. When cannabis possession was decriminalized, an estimated 250,000 Canadians had possession records, yet Bill C-93 was expected to help only about 10,000 people get relief from cannabis possession records. More than two years later, only 484 people have actually obtained those pardons. At the same time, the system has turned away approximately 300 people because they did not meet the rules and requirements of the application process.

In the first three years of Bill C-66 being in force, only nine out of an estimated 9,000 people with records relating to 2SLGBTQ+ discrimination — that’s a mere tenth of 1% — have obtained record relief. This is simply unacceptable.

We do not know if or when the government will bring Bill C-31 back with the necessary changes to ensure that record relief is meaningfully accessible. If they do, I will be the first to support an effective government bill. In the meantime, however, I humbly urge us to act.

The systemic injustices in the criminal record system are marginalizing people, families and communities and they require our attention now.

Let me conclude by quoting the government’s 2019 Final report on the review of Canada’s criminal legal system. One of the report’s recommendations is to:

. . . adopt a whole-of-government approach to make pardons more accessible, to ensure that certain offenders have the opportunity to move on without a criminal record impeding their attempts to focus on the future.

The current system is not accessible. It is also unnecessarily expensive and bureaucratic. It does not improve safety for Canadians. In fact, it undermines public safety. It creates barriers to reintegration and to the ability of people to contribute to their communities. It pushes people to the margins, away from opportunities for work, education and volunteering and away from necessities like safe shelter and health care.

Because of the pervasive racism in criminal justice and corrections, the current system perpetuates and amplifies the systemic discrimination and inequalities faced by Indigenous and African-Canadian communities.

The government has acknowledged that the record system is unfair and untenable. Yet well-intended relief measures like Bill C-66 and Bill C-93 have not reached most of the people they were ostensibly designed to assist.

Bill C-31 likewise fell short. These approaches have barely budged the status quo and have therefore, however inadvertently, replicated its injustices. They continue to put the onus on individuals to navigate and fund onerous application processes. Bill S-212 would instead require the government to ensure that the punishment associated with a criminal conviction is not unjustly extended far beyond the sentence served.

When someone serves their sentence, they have paid their debt to society. As the Federal Court has said, “Our society has no place for double punishment or discrimination on the basis of criminal record . . . .”

When it comes to life after completing a sentence, according to the Supreme Court of Canada:

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.

This bill recognizes the positions of Canadian courts. It implements the intentions of the government with respect to Bill C-31. Most importantly, it reflects Canadians’ understanding of justice and fairness, from the thousands represented by the Fresh Start Coalition as well as those in the general public. Consultations have revealed a broad public consensus that current record suspension costs and procedures are unjust and punitive.

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 contributions to this bill.

Meegwetch, thank you.

Hon. Ratna Omidvar [ - ]

Would Senator Pate take a question?


Senator Omidvar [ - ]

Senator Pate, thank you for your ongoing advocacy for reform of the criminal justice system. At committee, when we discussed criminal justice reforms in various aspects, the model of the Nordic countries has always been held out to us. My question is: Will we be the trailblazers with this bill or will we follow the lead of other jurisdictions?

Thank you for that question. We wouldn’t be trailblazers. As I mentioned, there are countries like Germany, New Zealand and others that already have record suspension. You mentioned the Nordic countries. Places like Portugal have essentially created record expiry processes, but they don’t call them that. I think we would have a lot to learn in terms of what kinds of approaches if we didn’t want to take this approach. But what we are proposing in this bill is a streamlined way of allowing records to expire that has been actually suggested by the government.

Hon. Colin Deacon [ - ]

Senator Pate, would you take a question?


Senator C. Deacon [ - ]

Senator Pate, I am looking at the Correctional Service Canada mission. It says they contribute to the protection of society by actively encouraging and assisting offenders to become law-abiding citizens.

Do you know what key performance indicators they are monitoring to ensure they are fulfilling that mandate? Have you thought about the sorts of key performance indicators you would like to see to ensure that mission is fulfilled?

In fact, Senator C. Deacon, Senator Forest-Niesing and I were working on a bill that I will likely be introducing coming forward that will hopefully try to address some of those very issues. I look forward to introducing those next week.

As you rightly point out, there aren’t necessarily performance indicators, but there certainly are principles and values that are supposed to be upheld by Correctional Service Canada. First and foremost is least restrictive measures and community integration as well as, of course, public safety and doing all of that within that construct.

As we learned when we examined Bill C-83, there is much work to be done in terms of holding accountable Correctional Service Canada in not just the most punitive areas of their work or the areas that are most restrictive, but across the board in the areas they work. Thank you.

Senator C. Deacon [ - ]

Thank you.

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