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Criminal Records Act

Bill to Amend--Third Reading--Debate

May 21, 2024

Moved third 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, as amended.

She said: Honourable senators, I rise today on the unceded and unsurrenderred territory of the Algonquin Anishinaabeg to commence third 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.

This legislation aims to remove unnecessary obstacles to community integration for those with criminal records who have been held accountable for their actions, who have fulfilled all aspects of their sentences and are trying to contribute to their communities.

Bill S-212 proposes three key measures.

First, Bill S-212 would return to the wait periods for record relief established by the Criminal Records Act when it was first enacted, namely, two years from the end of sentence for summary convictions and five years for indictable offences. Currently, these wait periods are 5 and 10 years, respectively, with several types of records never becoming eligible for record relief.

Second, Bill S-212 would make it the responsibility of the government to ensure that records expire cost-free once wait periods elapse, provided that there have been no subsequent convictions or charges. People would no longer have to navigate costly and onerous application processes that too often subvert the overarching goal of encouraging public safety via successful community integration.

Third, Bill S-212 provides for expiry rather than suspension of criminal records. As with record suspensions, people would not be required to disclose expired records, which should limit the proliferation of record checks for applications for housing, education, employment, volunteer opportunities and even long‑term care placements.

Except in circumstances related to sexual assault convictions, record expiry would be permanent, and people would not face the spectre of expired records being revoked or ceasing to have effect.

Expired records would, however, continue to be available to police databases for legitimate investigative purposes.

Bill S-212 would also maintain the current system of vulnerable sector checks by which expired records related to sexual assault would continue to appear on special record checks required when people apply to work or volunteer with children, seniors or others deemed vulnerable.

Honourable colleagues, as we discuss Bill S-212 today, you will hear the four following themes.

First, automated record expiry is not a new idea. It is one which the current government has spent nearly a decade considering and moving toward by incremental steps.

Second, these government commitments to reform the records system must be understood as a crucial part of Canada’s work to redress its colonial legacy, as records have systemically extended and reinforced the inequality and injustices of mass incarceration of Black and Indigenous people.

Third, record expiry is feasible and practical. Canada has a system of automated record expiry for youth records and, before the end of this year, will be rolling out automated expiry of records related to historical drug possession. We have the infrastructure needed to make Bill S-212 a reality.

Fourth, as underscored by the amendments to this bill at committee, responding to concerns raised by representatives of some police services, record expiry and public safety go hand in hand. Everyone benefits when people are able to integrate safely and successfully into the community.

Our collective work on Bill S-212 builds on nearly a decade of government initiatives related to criminal record reform. In the Forty-second Parliament, the government released the results of two public consultations on the current record suspension system, one by the Parole Board of Canada, in 2016, and the other by Public Safety, in 2017.

In 2018, the Standing Committee on Public Safety and National Security in the other place published a report on the record suspension system with recommendations that garnered all-party support. The conclusions of all these studies are the following: Fees are prohibitive; wait times are too long; options for automated expiry without applications should be explored.

Two government bills also recognize the injustice and inaccessibility of the current record suspension system. Bill C-66 introduced a no-fee and simplified application process for expiry of records received because of discriminatory criminalization of members of 2SLGBTQIA+ communities.

Bill C-93 provided a similar process following the decriminalization of cannabis possession for individuals with previous possession convictions, particularly given that “war on drugs” style policies had disproportionately targeted and criminalized Black and Indigenous people.

These bills were deemed necessary precisely because the current record suspension system is both out of touch and unresponsive. Tens of thousands of people lived for years with the stigma and barriers that attached to criminal records, even though their discriminatory and now decriminalized convictions should not exist. Their behaviours never presented a risk to public safety, yet Canada’s records system continued to marginalize them and was incapable of providing effective relief.

How many people are currently unable to find jobs or safe housing or to support themselves and feed themselves and their families because of criminal records that have nothing to do with risk to public safety but everything to do with unequal access to the financial and legal resources necessary to attain record relief, let alone to avoid the circumstances that put them at risk of criminalization in the first place?

The Canadian Association of Elizabeth Fry Societies told the Legal and Constitutional Affairs Committee the following:

One person in our network, for example, completed her sentence some years ago. She’s gained employment delivering a front-line service that helps others in her community. She recently learned she has to move from her apartment. However, she’s been unable to find new and secure housing because of record checks on housing applications. She has disclosed to us that she’s fearful that she’s going to have to try to complete her job while living in her vehicle.

The Fresh Start Coalition, a group of more than 85 civil society organizations that work alongside those with the lived experience of criminalization, has reached out to many of us to advocate for an automated or spent record regime such as that which Bill S-212 proposes. The coalition has helped amplify the voices and experiences of people like Kimberly, whose criminal record exists within a context of three decades of physical and sexual abuse. Kimberly was able to escape an abusive partner but remained trapped in low-paying and precarious work. She once found better employment only to be part of a mass firing of all recent hires with records just a few weeks later. She retrained, taking online classes at night while working full time during the day, only to learn after a year that she could not complete her entry-to-practice exam because of her record. In Kimberly’s words:

Pretty much every time my criminal record comes up, when it’s pertaining to employment . . . . I know I have to talk about my personal life again. I’ve got to talk about the things that I’ve worked so hard to socially overcome, mentally overcome, physically overcome. And every time, it’s right back on my doorstep.

Everybody says, “Oh, everybody has skeletons in their closet.” Nope, mine are right here behind me, shackled to my ankles, and they just walk right behind me every step of my day, everywhere I go.

Who benefits from such a system? Who does it keep safe? Although the two pieces of legislation introduced by the government to improve access to record relief for some types of convictions are laudable, they are also far too limited. As of May 2024, more than four and a half years after the introduction of expedited cannabis pardons, only 1,331 people had applied for this record relief, representing little more than 1 in 10 of the 10,000 people the government estimated the legislation might benefit, which itself was only a small fraction of those with cannabis possession records.

Of these 1,331 applicants, 476 were rejected due to technical issues. In other words, more than one in three people who came forward looking to move on from a cannabis possession record were turned away because even a no-cost application process designed to be as simple and supportive as possible was too complex.

Record relief is sometimes falsely characterized as being tantamount to excusing criminal actions or ignoring public safety. Neither is true. Allowing records of conviction to expire after periods of living crime-free increases people’s prospects for community integration and thereby contributes to public safety.

Indeed, at committee, the Canadian Association of Chiefs of Police and the Federal Ombudsperson for Victims of Crime were among the witnesses supportive of Bill S-212 on these grounds. Their position echoes abundant empirical evidence and data demonstrating that requiring people to complete an application to obtain record relief does not enhance public safety outcomes. Rather, the best predictors of successful integration into the community include access to a job and the ability to live for a few years without a new charge or conviction.

Research and government data revealed that after a relatively small number of crime-free years, people with records are no more likely than anyone else to commit a crime. This means we can support both public safety and community integration of individuals with records by removing barriers to record expiry and, in particular, to opportunities for jobs and other meaningful connections.

If we want a just system that delivers on its promises to make communities safer and does not discriminate against those who are poor, racialized and most marginalized, Canada’s experience tells us — as did so many witnesses at committee — that we need to eliminate current cumbersome application processes. We need to encourage the government to implement Bill S-212.

In 2021, during the Forty-third Parliament, the government introduced Bill C-31. Although it did not advance prior to prorogation, this legislation proposed eliminating some of the system’s numerous application requirements, allowing pardons for some convictions currently ineligible for record relief and reducing wait times to five years for convictions for indictable offences and three years for summary conviction offences.

Then, in 2022, during the Forty-fourth Parliament, the government reduced application fees from more than $658 to $50. This was a major advancement but has not eliminated cost‑related barriers. While $50 may not sound like much, for those who are most marginalized, the cost of a record suspension could mean going hungry, being without safe shelter or a coat and boots, or denying food security or other essentials to their kids. While application fees are now capped at $50, other steps of the application process quickly generate costs of hundreds if not thousands of dollars, from police checks, fingerprinting, travelling to retrieve records, consulting lawyers or — in too many cases — getting scammed by businesses that do little to assist people with their records while charging unconscionable fees.

In addition to these hidden costs, as the St. Leonard’s Society of Canada told us at committee, there are people “. . . who went through the initial stages of the application process only to find that they have discovered outstanding fines —” in connection with their sentence “— that they could not afford to pay. They just gave up.”

By removing the requirements to make an application, Bill S-212 would eliminate hidden and too often punitive and prohibitive costs. Enshrining this process in legislation could help ensure that if a government wanted to create additional fees or raise costs in the future, it would need to bring this measure forward in legislation for transparent debate in Parliament rather than being able to take such actions behind closed doors.

Next, in August 2022, the government released the results of new public consultations focused on automated record expiry. They reported that almost all participants “. . . strongly support the development of an automated system.”

In the fall of 2022, the government introduced a form of automated expiry in Bill C-5. I do not need to remind colleagues that this chamber voted in favour of this measure by a nearly three-quarter majority. Under the terms of Bill C-5, by November 2024, all records for simple possession of drugs will expire automatically two years after the end of a person’s sentence.

During debate on Bill C-5, the Government Representative in the Senate explained why this measure was particularly important in a bill that aimed to address systemic discrimination against Black and Indigenous peoples in the criminal legal system. He said:

When a person is convicted of simple drug possession, their past and future convictions must be kept separate and apart from other records of convictions within two years after the sentence. This means that their criminal record will be suspended and they will not have to submit a request and pay and fees.

He continued, saying:

This will enable individuals convicted of simple drug possession to continue living their lives. They can continue their schooling, explore employment opportunities or participate in their communities without being held back by a prior conviction of simple possession.

This addition provides the bill with a mechanism to reduce the stigma associated with simple possession convictions.

Honourable colleagues, the burden of a criminal record disproportionately falls on Indigenous, Black and racialized communities, extending and exacerbating layers of systemic racism within the criminal legal system, from racial profiling, to over-surveillance, to mass incarceration. Today, African Canadians represent 3% of the population but 9% of those in federal prisons. Indigenous peoples represent 5% of those in Canada but 32% of those in federal prisons. More than half of women in federal prisons are now Indigenous.

It is easy to talk about the need for reconciliation. Many have already drawn parallels between mass incarceration and too many other racist exercises in institutionalization and dislocation from community, from residential schools to forced apprehension into the child welfare system. It is clear that we need to do better, but what does that really look like when the people we meet going into prisons are still mostly Black and Indigenous — and when, even after they have served their time, they cannot find second chances to contribute to their families and communities because criminal records continue to punish?

Canada’s pathway to reconciliation is a long one, and it requires us to reckon with the injustices of the criminal legal system and the reality that criminal convictions are not meted out equally. Bill S-212 is a small step toward this work. It is no coincidence that both in this chamber and beyond, those urging us forward are often those working with and on behalf of racialized communities, whose members are most affected by criminal records and least able to pay to navigate the current system for record suspensions. Just look at the voting patterns in this chamber alone. As a White woman, there is a home truth that I feel compelled to underscore: It is clear that it is mostly our Black and Indigenous colleagues who recognize the vital importance of legislation like this bill and vote accordingly. I call on all of us to step up.

Because of Bill C-5, the government is currently required to build a system for automated record expiry for some types of records, the very infrastructure needed to make Bill S-212 an easily delivered and cost-effective reality for most, not just some people who need and deserve immediate relief from a criminal record. So what are we waiting for?

Of the 3.8 million Canadians with criminal records, 9 in 10 do not have a pardon or record suspension. At committee, the Parole Board of Canada told us:

For fiscal year 2022-23, we are on track to receive approximately 15,500 record suspension applications, which will represent a . . . 29% increase . . .

This number represents only 0.4% of people with criminal records. At this rate, it would take 221 years to deal with all current criminal records.

In the meantime, each person who does not have a record suspension is having the consequences of their conviction prolonged indefinitely beyond their sentence and being hindered as they work to integrate and contribute in meaningful ways to their communities.

The government acknowledges that the record system is unfair and untenable. It is doling out $18 million to community groups to assist their clientele in navigating the complex process of applying for record suspensions.

The government is also making incremental progress towards an automated system for record expiry; however, people with records can least afford to wait longer for relief. Tony Paisana of the Canadian Bar Association told the Legal Committee:

. . . we have been chipping away at this problem for long enough that I think a more revolutionary change is necessary. The record suspension or pardon system has been the subject of much debate for the better part of 25 years, and we don’t seem to be improving it in any scalable way that seems to be making a difference for Canadians.

The financial impediments introduced about a decade ago were actually a step backwards as opposed to a step forward, and now we have basically come back to where we were a decade ago in terms of the financial impediments. The process itself is the same. Those problems remain the same.

. . . In my respectful view, the time has come for a more significant change in light of the difficulties we’ve had with this problem for the better part of three decades.

Automated record expiry is not a new idea. It is relied upon as part of the record system in countries such as the United Kingdom, France, Germany and New Zealand. In Canada, the Youth Criminal Justice Act has operated based on automated expiry of records for nearly two decades. Committee witness Catherine Latimer, currently the executive director of the John Howard Society of Canada, was previously a government lawyer in the Department of Justice with lead responsibility for the development of the YCJA. When asked about the YCJA record system and how it became the first system in Canada to integrate record data from the federal and provincial systems seamlessly enough to permit automated record expiry, she had this to say:

We had many long discussions with record holders in the provincial system . . . police, court administrators, you name it. We worked through the challenges, and we developed a workable solution. Frankly, nobody has been really complaining about the record management system in the Youth Criminal Justice Act, and it’s been in effect for 20 years now. It’s probably a decent precedent that [the Minister of Public Safety] and others could take a look at to bring the provinces on side. I think it could be done relatively simply.

Through the government’s obligation under Bill C-5, the proverbial wheels are already in motion when it comes to an automated record expiry system. Bill S-212 provides the next progressive step to address injustice and inequality in the criminal record system. It is backed by decades of evidence and thoughtful consideration and responds to Recommendation 69 of the report of the Senate Human Rights Committee entitled Human Rights of Federally-Sentenced Persons, which this chamber has endorsed not once but twice.

Through amendments at the Legal Committee, Bill S-212 now also responds to concerns raised by some colleagues and witnesses representing police services. Bill S-212 makes relief from records the norm rather than the exception it is under the current record suspension system. The Canadian Association of Chiefs of Police and the Ontario Provincial Police in particular raised concerns about losing swift access to centralized data regarding criminal record history that they currently rely on in their investigations if records were purged from the Canadian Police Information Centre database as they expired. The committee responded by agreeing to my amendment to create an exception that would continue police access to expired records for limited investigative purposes.

Modelled on the current Youth Criminal Justice Act system, this amendment means that expired records would be kept separate and apart from other records in the CPIC database, as is currently the case for pardoned and suspended records. Police would have a new power to access these expired records without the individualized request for ministerial approval that is currently required so long as this access is for legitimate investigative purposes.

At the same time, however, Bill S-212 ensures that individuals do not need to disclose the fact that they have expired criminal records and firmly maintains the bill’s safeguards against expired records appearing on record checks for non-police civil purposes, including applications for housing, employment, volunteering and, except in limited cases, related to vulnerable-sector checks.

Bill S-212 would preserve the current vulnerable-sector check process such that expired records relating specifically to Schedule 1 and Schedule 2 convictions. Those that have to do with child abuse and sexual assault would continue to appear as part of a vulnerable-sector check that individuals may be asked to complete, for example, when applying for work or volunteer positions alongside persons considered vulnerable, whether because of age, ability or circumstance.

The Legal Committee’s amendments address concerns about upholding public safety by ensuring police continue to have access to the investigative tools upon which they rely. In doing so, the amendments acknowledge that public safety goals are undermined, not enhanced, if police use of expired records crosses the line from legitimate investigative into discriminatory practices, or if people are marginalized, stigmatized and isolated because they cannot gain access to meaningful record relief.

This brings us to the question, colleagues, of what we stand to lose if we do not pass Bill S-212. We heard repeatedly at committee that people who have served their time and have been held accountable for their actions need employment, housing, educational and volunteer opportunities. Criminal records impair their ability to integrate and contribute positively to their families and communities. Witnesses talked about how this bill is vital for the safety, health and well-being of these individuals, their families and their communities.

One witness at committee Rachel Fayter used her own experience to illustrate this point. Ms. Fayter is currently a PhD candidate in criminology with 10 years of social work experience and a master’s degree in psychology. In her own words:

. . . Despite these assets, I was unable to find work in my field after sending out over 100 resumés and having dozens of interviews. After several months, I was forced to work two minimum-wage, part-time jobs, selling burritos during the day and stocking grocery store shelves overnight. . . .

. . . it was extremely difficult to find an apartment, and I had to ask my professors for letters of reference to support me in accessing housing.

Ms. Fayter told us at committee that:

. . . The current system and having a criminal record . . . promotes stigma and discrimination and excludes people from society. People are out on the streets because they cannot find housing. They are frustrated because they cannot access education. They’re not able to obtain regular, meaningful employment. I know of many people who have been forced into sex work, including stripping.

Colleagues, Ms. Fayter and so many others have so much to contribute to our communities. People unable to get access to criminal records relief are bearing the burden of an unjust and inaccessible system that fails to let people move on with their lives and fails to make our communities safer. I have served as a reference for far too many folks who are being denied access not just to employment or volunteer opportunities, but also to education, housing, mental health and even seniors care because of their records.

It is those most marginalized — Indigenous, Black and other racialized people, those with disabling mental health issues, impoverished people — who are least able to access record suspensions. Systemic inequalities mean that these groups are already disproportionately likely to be criminalized and disadvantaged both in advance of and following a criminal record. Most low-income and middle-income Canadians are struggling to access housing, employment and other supports. Criminal records not only add another layer of discrimination: they pile on the barriers.

Bill S-212 alone will not address all the current issues with the criminal record system. It is, however, a meaningful lifeline supporting integration for people who have served their time and have worked hard to move on from crime.

Honourable colleagues, in the event that it is at all unclear, please allow me to put it simply. The evidence is extensive and strong that without a record expiry system in Canada we are discriminating against those who are most marginalized. The government increasingly acknowledges this reality through its public consultations and steps towards forms of automated records expiry, but people in desperate need are in need of support. As they seek to rejoin society, integrate into the community, to stay safe and healthy and to support and care for their families, they can’t afford to keep waiting. Let us work together to bring about long overdue evidence-based changes to the criminal records system in Canada. I look forward to your support as we strive to ensure positive movement in this and so many interrelated areas. Meegwetch, thank you.

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