Expungement of Historically Unjust Convictions Bill

moved second reading of Bill C-66, An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts.

He said: Honourable senators, I know that it is late in the day, but I want to give this important speech to attest to the years of waiting endured by the victims of the historic injustices I will talk to you about. I rise with emotion in this chamber today as the sponsor of Bill C-66, an act to establish a procedure for expunging certain historically unjust convictions.

First of all, allow me to quote French novelist Gilbert Cesbron, whose words precisely capture the deeply felt reasons that led me to sponsor this bill. Gilbert Cesbron stated the following:

That the world is absurd concerns philosophers and humanists; that the world is unjust concerns all of us.

Bill C-66 was introduced in the other place when the Canadian government apologized to the LGBTQ2 community for decades of systematic and systemic oppression and discrimination sanctioned by the state. It passed unanimously in the other place.

Bill C-66 seeks to correct the historical injustice of the criminalization of consensual sexual activity between same-sex adults. It recognizes that the criminalization of such an activity may constitute a historical injustice because, among other things, were it to occur today, it would be inconsistent with the Canadian Charter of Rights and Freedoms.

By implementing such a procedure, this bill gives the Parole Board of Canada the power to expunge convictions deemed to be unjust by permanently destroying and removing the judicial records of those convictions from federal repositories, in other words, all federal databases. As a result, anyone who was wrongly convicted of an offence involving consensual sexual activity between same-sex persons that would be legal today would be deemed to have never been convicted of that offence.

The Canadians who would be affected by this measure are members of the LGBTQ2 community who were unfairly convicted under the provisions of the Criminal Code or the National Defence Act related to the offences of gross indecency, buggery and anal intercourse.

Before I go through the bill in a more detailed manner, please allow me, honourable colleagues, to provide you with a brief contextual history of what brought us to its conception.

First, we must recognize that the discrimination against the LGBTQ2 community takes root in the very foundations of our Canadian legislation. For the last 150 years, the Parliament of Canada has often failed in fulfilling its duty of protection towards our country’s sexual minorities.

Despite the passing of Bill C-150, which decriminalized homosexuality in 1969 following the Everett George Klippert case, the last Canadian to have been imprisoned for homosexuality, the LGBTQ2 community kept on being subjected to outrageous discrimination in all spheres of Canadian society.

Between the 1950s and the early 1990s, thousands of LGBTQ2 workers in the Canadian public service, including members of the military, members of the diplomatic corps, and members of the Royal Canadian Mounted Police, were targeted, subjected to investigations, and had their careers ruined by a shameful campaign of oppression described by victims as “the purge.” Members of the LGBTQ2 community who worked in departments and agencies faced all kinds of sanctions, including dismissals, transfers and demotions. Notes were often added to their service records calling them “deviants” or stating that they were “not advantageously employable.”

It was not unusual for individuals who had confessed to being gay or lesbian, or had been forced to do so, to be given the choice of being released from their position or enduring psychiatric treatment. The Canadian government often denied them benefits, severance pay and pensions. Those who managed to stay on in their positions were expressly denied any opportunities for promotion.

Most public servants who were suspected of being homosexuals at the time were subjected to humiliating surveillance and interrogations that included degrading personal questions. Federal government investigators would use a device created by a professor at Carleton University that could allegedly “scientifically” determine whether a person was homosexual. The RCMP dubbed it “The Fruit Machine.”

In 1967, a Canadian Forces administrative order, better known as CFAO 19-20, came into force. This infamous order required that members of the military investigate their fellow soldiers who were suspected of being gay, and then put an end to their careers by asking them to be discharged from service. Although some were honourably discharged after these interrogations, many endured dishonourable discharges. This was the case for Martine Roy.

Martine Roy joined the Canadian Armed Forces in 1981 at the age of 19 because she wanted to serve and protect her country.

She completed basic training at Saint-Jean-sur-Richelieu and went on to complete language and medical assistant training at the Canadian Forces base in Borden, Ontario. She was proud, committed and was looking forward to a long and rewarding military career.

One day, while she was participating in field training, an unmarked car approached. Two individuals stepped out and asked her to get in the car. She thought these were civilians who had gotten lost on the base, but they were not. The individuals identified themselves as part of the Special Investigation Unit and told her she was being arrested.

They drove her to a small building at the edge of the base that Martine had not known existed. There, in a small, dimly lit room, Martine was interrogated for nearly five hours about every detail of her sexual history, habits and preferences. Questions included “Who did you sleep with?” and “How often did you have sex?” Martine’s interrogators told her that if she confessed to her perversions she could stay in the Canadian Armed Forces. Exhausted, scared and humiliated, she said she was young, experimenting and confused.

Later, she was summoned to the office of a psychologist so he could determine whether she was normal or abnormal. There she attended several humiliating and degrading sessions.

Finally, in December 1984, Martine was ordered to report to the office to the base colonel. She was asked, “Do you know why you’re here?” She answered no. Martine was told that she was a deviant and that she was being discharged for homosexuality.

Although her superiors were happy with her work, and despite her deep commitment to the institution and her country, Martine Roy was given just nine days to gather her personal effects and leave the base. Only nine days, honourable senators, to say one last goodbye to her dream.

Ms. Roy lived with guilt and shame because she thought that these events were her fault. She was forced to disclose her sexual orientation to strangers without any say in the matter. She couldn’t choose the right moment for her to come out. That is what it was like for countless other victims of the purge and these sanctioned persecutions. Martine returned to Quebec where she suffered severe emotional trauma, which still affects her to this day. For years she battled a drug addiction, had to undergo intensive therapy, and had trouble maintaining personal relationships. Unable to be herself, she lived in fear and in a constant state of anxiety, fearing being rejected by her employer or her loved ones.

Honourable colleagues, the Canadian army did not abolish these exclusionary policies until the early 1990s, following legal action by Michelle Douglas. It was not until her case against the Department of National Defence was settled in 1992 that the express policy of institutional discrimination was officially abolished.

Canada has hundreds — thousands — of stories like Martine’s. I encourage you to read the November 2017 Globe and Mail article by John Ibbitson, which relates many such stories, including that of former diplomat Orde Morton.

Because of discriminatory laws and federal policies and programs, thousands of innocent citizens like Martine Roy, Orde Morton, and my fellow Acadian Diane Doiron lost their jobs or were rejected by their family and community. Worse still, many, many people lost their dignity.

In the decades that followed, prime ministers such as the Right Honourable Brian Mulroney spoke in Parliament to condemn national security campaigns targeting the LGBTQ2 community. However, no apology or reparation was made to right this terrible historical wrong that affected thousands of Canadians who were accused because of their sexual orientation, gender identity or gender expression.

Honourable colleagues, because of what Canadian governments have either done of failed to do over the years, members of the LGBTQ2 community who were unjustly convicted have suffered irreparable psychological harm. Although they could obtain pardons, there was no way to expunge their convictions even after the laws under which they were convicted were recognized as discriminatory.

It has been a long time coming, but now Bill C-66 wants to make that recourse available to people. This bill stems from protracted battles waged by the LGBTQ2 community as chronicled in Egale Canada’s incomparable Just Society Report, which paints an enlightening and moving portrait of the LGBTQ2 community’s experience in our society.

Now let’s focus more precisely on the bill that is before us today. Honourable colleagues, allow me to offer you a few details concerning some provisions of Bill C-66. Most notably, those touching upon the eligibility criteria, the filing and treatment of applications and admissible convictions.

As I have previously stated in my speech, Bill C-66 clarifies that the Parole Board of Canada will have the power to order or refuse the expungement of unjust convictions made under certain articles of the Criminal Code and the National Defence Act for these acts. Most specifically those pertaining to acts of gross indecency, buggery and anal intercourse.

Expungement will allow their convictions to be fully removed from all federal databases and will be one of the most effective possible actions for those seeking to clear their names.

Those who were convicted can file an application for expungement with the Parole Board at no cost. In some cases, the applicant may be filing an application posthumously on behalf of a deceased family member or loved one. The bill offers that possibility by allowing appropriate representatives such as a partner, parent, sibling, child, or personal representative to file an application in their name.

In each case, the applicant will have to provide evidence that the convictions satisfy the following three criteria in clause 25 of the bill: the activity for which the person was convicted was between persons of the same sex; the activity was consensual; and, the persons who participated in the activity were 16 years of age or older at the time the activity occurred or were subject to the close-in-age exception under section 150.‍1 of the Criminal Code.

In most cases, such evidence would come from the police or court records. That being said, given the historic nature of those records, the government recognizes that, in some cases, it will not always be possible to access the official documents providing evidence that the criteria are satisfied or even to obtain those documents. That is why the bill allows for a sworn statement or solemn declaration to be submitted as proof. In the statement, the applicant will have to explain that every effort was made to obtain the documents to confirm the three aforementioned criteria. The applicants will also have to show that they made every reasonable effort to obtain those documents and that they were no longer available.

The Parole Board will then investigate, and if it finds no evidence to the contrary and no evidence that the activity is currently prohibited under the Criminal Code, it will order expungement. If the applications for expungement are complete and meet all of the criteria, the Parole Board will then order the expungement of the records of conviction and inform the applicants in writing.

The procedure for the destruction of the records will be as follows. First, the Parole Board will inform the RCMP, which will destroy all conviction records in its possession, whether on hard copy or digital format. The Board will also inform any other relevant federal department or agency that might have conviction records and order them to destroy those records.

Furthermore, all relevant tribunals and police forces in other jurisdictions, such as provincial or municipal police forces, will be informed of the same order and asked to destroy all relevant records in their possession. Although they are not subject to the federal legislation, the provincial or municipal police forces and courts usually respect record suspensions. The government therefore expects them to do the same for these expungement orders.

As for the eligible offences, the bill includes said offences in a schedule so as to be very clear regarding the applicant’s eligibility. The first two offences listed in the schedule and eligible for expungement under the terms of Bill C-66 are gross indecency and buggery. Those two offences date back to when the Criminal Code of Canada was being drafted in 1892. Because of their ambiguity, they enabled police and law enforcement officials to unfairly target Canada’s homosexual and transgender community.

Honourable colleagues, we had to wait almost a century, until 1988 to be more specific, before the offence of gross indecency was removed from the Criminal Code. The term “buggery” was replaced by the expression “anal intercourse” that same year, an offence that is also included in the schedule of eligible offences and is still included in the Criminal Code, even though it is no longer enforced. In fact, esteemed senators, some courts, including some provincial superior courts, such as the Ontario Court of Appeal in 1995, as well as the Federal Court of Canada that same year, ruled that section 159 of the Criminal Code on anal intercourse was unconstitutional. Steps are being taken to repeal that section through Bill C-39 and Bill C-32, which were introduced in the other place.

As I said earlier, this bill, in the eligibility criteria, also takes into account members of the military who may have been convicted for engaging in consensual sexual activity between same-sex persons under the National Defence Act. Honourable senators, those are the eligible offences covered by this bill.

Since it was passed in the other place, many organizations and individuals have spoken out about Bill C-66 and called for the government to clarify and expand the list of offences set out in the schedule of the bill. For example, some are asking that bawdy house offences be included in the list of eligible offences. Police officers have been criminalizing sex trade workers and meeting places for homosexuals since 1968 under the provisions of the Criminal Code related to bawdy houses. Senators will remember the historic raids on various gay bars and bathhouses in the 1970s.

As a member of the LGBTQ2 community, I completely understand why some individuals would want that. On October 21, 1977, I was 21 years old. I was living in Montreal, and that evening, friends invited me to go out for drinks with them in a bar that was safe for us, a place where we could talk, dance and have fun without worrying about anyone bothering or humiliating us. That evening, they decided to introduce me to a bar on Stanley Street. Happy and carefree, we were on our way to the bar when, suddenly, a man came running out, urging us not to go in because the police were in there arresting everyone. That night, October 21, 1977, 147 charges were laid. Men from all walks of life were charged. Because of the media coverage, some were outed without their consent and before they could warn their loved ones. Similar raids happened in Toronto and elsewhere in Canada.

Had I gone into that bar that night, honourable colleagues, I would no doubt have been charged too. I would no doubt have a criminal record, and I might not be here talking to you today, so I can certainly understand why some people want certain offences added to the bill.

That said, I can also understand why those offences were not included in this version of the bill. The main reason cited for not including offences related to bawdy houses is that gross indecency, sodomy and anal sex are offences that most clearly discriminate against same-sex partners, which is a historical injustice. These offences targeted and criminalized behaviours of members of the LGBTQ2 community that would be legal today.

Furthermore, one of the criteria set out in the bill seeks to include only convictions for activities that are no longer considered illegal and for which the related provisions of the Criminal Code are now considered unconstitutional and unenforceable. Offences related to bawdy houses targeted a wider variety of activities that were considered immoral at the time, including certain activities between partners of the opposite sex, activities related to running or visiting brothels, and activities related to the exchange of money for sexual services. Sections 210, 179, and 173 of the Criminal Code, which deal with bawdy houses, indecent acts and vagrancy, remain part of the Criminal Code and are not deemed to contravene the Canadian Charter of Rights and Freedoms. That is why this bill does not include this type of offence.

That being said, the government recognizes that other unfair convictions that are not currently included could eventually be added to the schedule of the bill.

This is why Bill C-66 provides for the extension of the expungement annex to other historically unjust condemnations, if it is deemed appropriate to do so.

Clause 23 of the bill provides authority to the Governor-in-Council the power to add other historically unjust offences to the schedule; while clause 24 allows for the Governor-in-Council to establish criteria for a listed offence, if it deems so necessary.

Honourable senators, like most bills, Bill C-66 is certainly not perfect. It is not a panacea that will put an end to all the stigmatization, discrimination and prejudice that are a reality for the LGBTQ2 community, but it is an important step forward. It seeks to correct certain historic injustices and offers the possibility of correcting others in the future.

Canada is not the only country that is adopting such measures. In that sense, Bill C-66 is consistent with similar legislation passed elsewhere around the world. A number of jurisdictions in Australia, as well as England, Wales and Germany, have introduced similar expungement processes for convictions involving sexual activity between consenting same-sex partners. In addition, posthumous expungement is possible in all jurisdictions, except the state of South Australia. Germany automatically expunges all eligible records, and England and Wales do so only for posthumous cases. Like Canada, the other jurisdictions require an application.

I would remind the chamber that the Canadian expungement process must be based on requests from victims or their representatives in order to ensure that only eligible convictions are expunged. An automatic process could lead to the destruction of records for acts that are still criminal offences, including non-consensual sexual activity.

Among the jurisdictions mentioned, none of them charges a fee, and most allow applicants to attest to the circumstances of the act. The bill is therefore consistent with most processes already occurring around the world.

The passing of Bill C-66, honourable senators, would be a testament to Canada’s commitment to the advancement of sexual minority rights.

This commitment echoes, after 50 years, the ceaseless calls by LGBTQ2 activists for apologies and rehabilitating measures to redress the harms and wrongdoings of the past.

This is an important step in the healing process for thousands of Canadians in the LGBTQ2 community.

The great French philosopher, author, and journalist Albert Camus said, and I quote:

I understood that it wasn’t enough to speak against injustice. You have to give your life to fight it.

Camus adds:

Only the truth can confront injustice. Truth or love.

I urge you, honourable senators, to find inspiration in those enlightened thoughts as we engage in this conversation to flesh out this bill and ensure that it is referred swiftly to committee so that this chamber may pass it in the very near future.

Thank you for your attention and collaboration.