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Criminal Records Act

Bill to Amend--Third Reading--Motion in Amendment--Debate Continued

May 30, 2024

Honourable senators, this item stands adjourned in the name of the Honourable Senator McBean, and after my intervention today, I ask for leave that it stand adjourned in her name.

The Hon. the Speaker pro tempore [ + ]

Honourable senators, is leave granted?

Honourable senators, the amendment proposed by Senator Housakos to Bill S-212 on criminal record expiry would represent a return to increased wait times for criminal record relief of between 5 and 10 years, which, for the past decade, have failed to improve public safety. Instead, by throwing more barriers in the way of stable housing, jobs and other necessary tools for success for people working to move on from a criminal record and contribute to their communities, longer wait times for record expiry risk undermining, not improving, public safety.

Bill S-212 builds upon incremental steps by the government toward its commitment to roll back Conservative changes that increased the costs, complexity, wait times and, consequently, the barriers associated with accessing criminal record relief.

As debate on this and previous bills has already revealed, discussions of the criminal legal system often generate genuine fear and concerns that contribute to harmful myths and stereotypes, fed by political point-scoring about who is soft or who is tough on crime. I urge that we look clearly at the facts and work together to cut through what too often feels like a game of “True or False” because this is most definitely not a game. There are far too significant and potentially horrific consequences.

Decades of research and evidence make clear that the 2-year and 5-year wait times proposed by Bill S-212 will create both a more just and a safer system. These wait times require people to stay crime-free following the end of any and all sentences, not — as Senator Housakos suggested — that they run two and five years from the date of conviction or sentencing. Depending on prison time, parole or other components of the sentence, there are often many years — even multiple decades — between dates of conviction and end of sentence and then eventual eligibility for record expiry. This alone negates the perceived risk of recidivism. As research and government data reveal, after relatively few years of offence-free time in the community, those with records are no more likely than anyone else — even you or me — to commit crime.

From witnesses at committee — including Public Safety Canada — we heard that:

It is true that the recidivism rates do decline over time. There are a number of studies that show that to be the case.


That’s true of all different categories —

— of offence.

. . . it’s not the case that, for instance, all violent —

— or sexual —

— offences have higher risks of recidivism.

When people are able to move on to find a safe place to stay and a job to support themselves and to build meaningful connections in their communities, time and again, they do incredibly well.

The Parole Board of Canada testified at committee that since 1970, almost 500,000 Canadians have received pardons and record suspensions, and 95% have remained crime-free. For the other 5%, according to Public Safety Canada, the majority of reconvictions were for liquor and traffic violations as well as property crimes. Perhaps most significantly, there was also a clear correlation between reconviction and unemployment.

When the previous Conservative government increased wait times to 5 and 10 years — measures that Senator Housakos proposes to recreate within Bill S-212 with his amendment — these wait times and other restrictions had no impact on the already very high, 95% success rate in the pardon system. People who obtained record relief continued to do well. The difference was that fewer people — especially from marginalized communities — were able to afford and access this record relief, and they had to wait longer to do so.

The importance of removing barriers to criminal record relief was underscored during public consultations on the Federal Framework to Reduce Recidivism in 2021-22, which, instead of focusing on further punitive consequences, emphasized social determinants of health that are shown to reduce recidivism, such as housing, education, employment, health and positive support networks.

It is not being able to integrate into society rather than having a criminal record that is most determinative of whether a person will be criminalized and convicted again. An expired record under Bill S-212 will improve chances of individuals’ obtaining financial security, housing and social connections, thereby improving their chances of successful integration and decreasing their likelihood of engaging in criminal activity in order to survive.

In one study, out of a random sample of 401 people released from prison, those who were able to find employment were almost half as likely to be re-arrested. A five-year study of 6,000 people found that no matter the type of conviction, employment was the most significant factor in determining whether an individual would be successful in the community.

Removing barriers to employment and other means of finding meaning, a place in society and a means of supporting oneself and one’s family is what Bill S-212 and its proposed wait times aim to support.

But what about the data cited by Senator Housakos? He raised concerns about record expiry for convictions related to child abuse, noting that offences relating to child pornography and trafficking have increased in recent years.

This increase has occurred over more than a decade, unaffected by changes to make criminal record relief less accessible. Changes to the law to exclude these convictions from being eligible for relief did not prevent or deter the harms Senator Housakos has raised, nor did they result in other positive effects.

The former critic of Bill S-212 argued that records relating to child sexual abuse should not be eligible for record expiry. There is no reason, however, for a distinction between offences in a record expiry regime. The sentencing system already provides a sentence that reflects and is proportionate to the type of conviction and circumstances of an individual. A two-tiered system for record expiry would create a secondary punitive sentence for those who have already served their time and been crime-free in the community.

I worked with men convicted of sexual offences before I had children. Most were racialized. Some had intellectual disabilities. Many had histories of past abuse and trauma. All were poor.

At the same time, I volunteered with women and children who were victimized and abused, particularly child victims of incestuous rape and abuse. Most perpetrators who were wealthy or privileged were never reported to police, let alone charged, prosecuted or convicted. Most perpetrators were men or boys related to or otherwise known to victims. For the few who might end up in court, sexual assault charges were the first to be plea bargained away. If the accused had the means, a phalanx of lawyers and professionals — psychiatrists, social workers and treatment providers — they would work to construct or twist creative legal arguments that excused the accused and silenced the victims.

Once you know these truths, you can’t pretend that an alternate reality exists, nor can you subscribe to or perpetuate myths and stereotypes. So, what does this mean?

Colleagues, it goes without saying that I live in the same communities as you do. So, why would I promote anything that would put my children or yours at greater risk?

When I had children, knowing that most child sexual abuse is committed by those who have planned as well as opportunistic access to children, despite the nearly unbearable cost, I secured child care spots in professional child care centres with multiple staff. When others insisted on criminal record checks for workers, I pointed out that not all records should be an impediment and advocated instead for a staffing policy that ensured that no child was left alone with only one adult in the toilet or sleep areas.

According to Noni Classen, Director of Education at the Canadian Centre for Child Protection, criminal record and child abuse registry checks alone are ineffective in catching child abusers. She emphasized the reality that “most people who are problematic . . . will not come with a criminal record.”

Why do I speak out against longer sentences and more punitive approaches to addressing violence and abuse? Because those approaches simply do not work. What does work is demanding that people walk their talk and demonstrate the behaviours and approaches we need and want to end harmful ideas, words and actions — be it in child rearing, relations between men and women, bullying or any other forms of abuse.

Courts are clear that “our society has no place for double punishment or discrimination on the basis of criminal record . . . .” As underscored by 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.

Politicians and policy-makers often present carve-outs of certain types of convictions as inevitable or obvious, but these concessions and compromises serve only to prolong punishment. The data shows that they do not make people or communities safer.

Even under Bill S-212, however, not all offences are necessarily treated the same. Child abuse and sexual assault convictions would still appear as part of vulnerable sector checks, required when people apply to work or volunteer with children, seniors or others deemed vulnerable. Unlike other records, these types of convictions would also remain subject to revocation and cessation in limited situations, to account for barriers to reporting abuse and assault that may mean that relevant information is not available until after a record expiry has already occurred.

Under Bill S-212, police would also still be able to access expired records for legitimate investigative purposes. This access is as a result of an amendment I proposed in response to concerns from some Conservative colleagues and police.

Bill S-212 seeks to restore the original Criminal Records Act wait times of two and five years. When this act was legislated in 1970, the Honourable Robert McCleave, Conservative critic to the Solicitor General, offered the unanimous support of his party for the bill and for amendments that made pardons available for summary convictions sooner — after two years — which he called “most important.”

As recently as 2017, the House Standing Committee on Public Safety and National Security called unanimously and across parties to review the accessibility of the criminal record system. Four out of five Canadians support some form of automatic record expiry, and the majority agree that current wait times are too long, with most suggesting wait times between one and five years for indictable offences.

More punishment may make us and some members of the public feel like we’re accomplishing something. In reality, if we don’t change behaviour and the conditions that give rise to inequities that have allowed mass criminalization and incarceration of those most marginalized, then we are not going to meet the expectations of Canadians in terms of improving community safety.

In short, punitive legislative changes do not make us safer. The negative consequences of restricting access to record relief and leaving people marginalized without safe housing or employment for longer periods is precisely why a former federal ombudsperson for victims of crime described the 2010 and 2012 restrictions on access to record relief as, “. . . a stupid thing to do.”

Honourable colleagues, please join me in insisting on the wait times of two and five years proposed in Bill S-212 and on returning to the original intent of the Criminal Records Act and the cross-partisan consensus it represented, which is that the best way to ensure public safety is to allow people to move on from crime and integrate into society.

Meegwetch. Thank you.

Hon. Wanda Thomas Bernard [ + ]

Would the senator take a question?

Senator Pate, when Senator Housakos moved this amendment last week, he stated that:

We’re taught from a very young age — regardless of race, colour, background or economic status — that you must work hard, play by the rules and try to be a law-abiding citizen and do good things in society. And when you don’t, there must be consequences.

Do you agree?

I think we would all agree with that. The reality, though, is that’s not how the law is applied. We learn when we go to law school that the law applies equally to everyone, but we quickly see when we head out into society — especially if we head into our jails — that that’s not true. Those who are criminalized and imprisoned are most likely to be the people who are failed by every other system: our child welfare system, our education system, our health care system and our juvenile justice system.

I would agree with the sentiment. I think the reality is very different. That’s the only explanation for why, in our federal prison system right now, one in ten women are Black and one in two women are Indigenous. And the numbers have gone up in the relatively short period of time I’ve been in this place.

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