Expungement of Historically Unjust Convictions Bill

moved third 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 rise today as the sponsor of Bill C-66, An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts.

I beg your indulgence, dear colleagues, for the time it will take me to deliver my speech, because starting today I intend to take to heart the good suggestions made by the interpreters during the consultation on the translation services review, and I will not speak so quickly when delivering speeches. On a more personal note, I admit that this suggestion is entirely consistent with the great advice I received from my mother, who is 95 and once told me:

You came into this world so quickly it seemed like you thought you showed up late for life. Relax.

I want to begin by saying that my speech is intended to be a presentation on the consultations and important work that has been done since this bill arrived in the Senate. I also want to highlight the issues that were taken into consideration throughout the study of the bill. They will shed light on the reasons why the committee supports the passage of this bill without proposing amendments but instead issuing a series of very important observations in order to have the government take steps as soon as possible to remove the obstacles that currently prevent certain historical injustices from being included in Bill C-66.

I would like to thank the Chair of the Standing Senate Committee on Human Rights, the Honourable Wanda Elaine Thomas Bernard, and the committee members, who showed great sensitivity and dedication in studying this bill. I especially want to acknowledge the hard work of the Honourable Raynell Andreychuk, the critic for this bill, whose experience, openness and professionalism were essential to our work. Without her, our study of Bill C-66 certainly would not have produced such excellent observations. I also want to thank support staff for making sure that our committee work runs smoothly.

As its title indicates, Bill C-66 would correct the historic injustice of the criminalization of consensual sexual activity between same-sex adults. The bill recognizes that the criminalization of 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.

Furthermore, the activity must no longer constitute an offence under an existing federal law. To expunge these unfair convictions, this bill would implement a new procedure to permanently destroy records of conviction for offences involving a consensual sexual activity between same-sex partners that would be legal today. This procedure would give 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.

Anyone who was wrongly convicted of an offence 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.

Honourable senators, while I do applaud the government’s initiative with this bill, as it is certainly a first step in the right direction, I do understand and share the disappointment expressed by an important number of witnesses and colleagues on the limited scope of the bill and on its incapacity to address, for now, other key pieces of legislation and Criminal Code provisions that have been used in a discriminatory fashion against members of the LGBTQ2 community.

The committee shared the community’s concerns and requested that the government address the inconsistency between the Prime Minister’s apology to LGBTQ2 Canadians and the offences cited in the schedule of Bill C-66, notably the exclusion from the schedule of the bawdy house provisions of the Criminal Code.

This inconsistency was a key component of the pushback the bill received from LGBTQ2 groups, scholars and allies. I strongly believe that this resistance could have been avoided if sufficient stakeholder consultations would have taken place before the drafting of the bill.

Indeed, during the committee hearings and the calls I had with stakeholders, they told us that never, at any point in the drafting process, had they been consulted or been made aware of the upcoming bill. Most of the consultations were done in preparation of the Prime Minister’s apology, not in preparation for this piece of legislation.

In order to address these concerns surrounding the lack of consultations, the committee, in its observations, has strongly requested that the Department of Public Safety and Emergency Preparedness launch, as soon as Bill C-66 receives Royal Assent, consultations with stakeholders and subject-matter experts to address other sections of the Criminal Code that were applied in a discriminatory fashion against the LGBTQ2 community, such as, but not limited to: indecent acts, immoral theatrical performances, obscenity, operating or being found in a bawdy house, nudity, vagrancy, criminal HIV non-disclosure.

The legal obstacles preventing the inclusion in this bill of sections of the Criminal Code that were used in a discriminatory fashion against the LGBTQ2 community must be removed as soon as possible.

Over the past few weeks, the Standing Senate Committee on Human Rights has heard from key witnesses who have expressed a significant number of concerns, some of which echo the issues our colleagues raised in this chamber during their speeches at second reading. All of the witnesses, including professors, lawyers, historians, archivists, victims of the LGBTQ2 purge and representatives of the Canadian HIV/AIDS Legal Network, welcomed the bill, but they said they would like to see it expanded to include more victims. That’s also what I heard from LGBTQ2 organizations and individuals I met with in my office as the sponsor of this bill.

To be fair, we have to recognize that the majority of the witnesses and groups that appeared before the committee were from the Toronto and Montreal areas. Few organizations from elsewhere in Canada expressed concerns about the current wording of the bill.

Now, let me guide you through some of the concerns and demands that were shared with the committee by civil society groups and by some of our honourable colleagues during second reading speeches and committee proceedings.

The first and most prominent concern raised in committee by various LGBTQ2 groups and allies was the exclusion of bawdy house provisions from the bill’s annex.

The exclusion of section 210 of the Criminal Code from Bill C-66 is perceived by some as a perpetuation of discriminatory laws and practices against the LGBTQ2 communities.

The Human Rights Committee also agreed in its observations that there is concern about the inconsistency between the Prime Minister’s apology to LBGTQ2 Canadians delivered November 28, 2017, and the offences cited in the schedule of Bill C-66. Some have asked us to intervene and correct this.

Professor Tom Hooper mentioned the following:

Senators, you are duty-bound to ask the government why they included bawdy houses in the apology but not in this bill. You must ask them what a bawdy house is in 2018. Why is this law still on the books?

Of course, that statement struck me and pushed me personally to explore the idea of possibly proposing an amendment to the bill addressing the sections of the Criminal Code that deal with bawdy houses. Our efforts with the Office of the Law Clerk and the Parliamentary Counsel to the Senate, as well as the opinions of legal advisors from the Department of Justice, helped us understand the complexity of that option and assess the real impact such an amendment would have on the law and its implementation in the short term.

First of all, I would remind the chamber that the bill’s main purpose is to examine the Criminal Code offences that are no longer in force today. Unlike the three sections of the Criminal Code and the National Defence Act that appear in the schedule to Bill C-66, the sections of the Criminal Code on bawdy houses, vagrancy, indecent acts, obscenity, nudity and the criminal non-disclosure of HIV/AIDS remain in effect today.

In the case of bawdy houses, the Supreme Court of Canada decisions in Labaye, in 2005, and Bedford, in 2013, do not render section 210 of the Criminal Code entirely unconstitutional. Rather, those Supreme Court decisions narrow the scope and application of section 210. In the Labaye decision, the court clarifies the criteria of what constitutes an indecent acts offence, namely, physical or psychological harm caused to participants in the impugned activity, or conduct that perpetuates negative or demeaning images of humanity. In Bedford, the Supreme Court struck down section 210 with regard to prostitution, pointing out that that provision has a prejudicial effect on the safety of the prostitute and therefore infringed the right to security of the person, guaranteed under section 7 of the Charter.

Before we contemplate the idea of amending the bill to add bawdy house provisions or those on vagrancy, indecent acts, immoral theatrical performances, obscenity, nudity and criminal HIV non-disclosure, we must consider that the difficulty with adding those other convictions to Bill C-66’s schedule is that those laws are not inherently unconstitutional. And as I mentioned previously, those laws remain in effect.

If we were to add them to the schedule, we would simply burden the Parole Board of Canada with the requirement to analyze and determine, decades after the fact, whether each conviction made under one of these sections was legitimate or abusive.

Shawn Scromeda, senior counsel for the Department of Justice, pointed out that the Parole Board of Canada would wind up in the peculiar position of having to retroactively read the police officer or prosecutor’s mind in order to determine whether charges would not have been laid in a particular case had the offender not been gay.

That is why an amendment would not only delay the passage of this bill, or even make it somewhat unlikely to be passed in the near future, but it would also hamper and delay the expungement process once the bill became law.

Furthermore, to address issues related to the other offences that were excluded from the schedule of the bill, it would be more appropriate and urgent for the Minister of Justice to commit to reviewing and “cleaning up” the Criminal Code in order to clarify elements or criteria that have been deemed invalid by a superior court. The Minister of Public Safety and Emergency Preparedness could then suggest specific items that could be added to the schedule to the bill, as provided for by clause 23 of Bill C-66.

I’m sure you understand that the thousands of LGBTQ2 Canadians who were swept up in police raids on bawdy houses deserve the right to expungement every bit as much as the individuals who are covered by the current bill.

Witnesses and civil society groups have also expressed concerns about the destruction of expunged records and whether this would have the effect of eliminating the historical evidence of discrimination or simply historically valuable and relevant archive material. While I share these concerns, and I do believe we must preserve the memory of these dark times in order to keep ourselves from repeating the same injustices, it is important that we keep in mind that only those who apply for expungement will have their criminal records destroyed and that the choice to preserve or destroy these records belongs only to them or their descendants. References to arrest charges and convictions in other documents, such as court transcripts or records of investigations, will remain.

In addition, to address witnesses’ concerns about the destruction of records and archives that might be historically relevant, the committee asks in its observations that the Parole Board of Canada inform applicants about which specific documents or records will be directly or indirectly destroyed following the process and which will remain intact. Applicants should also be informed of their right to access copies of their file and other documents, pursuant to the Privacy Act, before submitting an application for expungement.

The age of consent was another concern that was raised. When she testified before the committee, Angela Chaisson, one of the representatives of the Criminal Lawyers’ Association, shared her concerns about the age of consent indicated in clause 25(c) of the bill. Ms. Chaisson is concerned that the bill violates a fundamental tenet of Canadian law by not restoring the age of consent and applying the current age to acts committed in the past.

The bill allows the expungement of a file only in cases where the defendant’s sexual partner was 16 years of age or older when the act was committed. This is the current age of consent, not the age of consent that applied at the time that the offence was committed. Furthermore, the age of 16 does not correspond to the age of consent historically required for similar heterosexual activities.

The government decided to strike a balance between its intention to make amends for historical injustices and its responsibility to protect minors against sexual exploitation. When the minister appeared before the committee, he clearly indicated that his decision to not lower the age of consent to 14 years of age is motivated by his desire to have an expungement order process which, pursuant to the preamble and clauses 12 and 23 of Bill C-66, solely addresses activities that are not prohibited under the Criminal Code when the file is examined.

In light of these considerations of the complexity that arises from the need to strike the right between avoiding a compounding effect on the very injustices the bill seeks to remedy by keeping the age of consent at 16 and attempting to respect the current legal framework meant to protect minors from sexual exploitation, the committee proposes that the Department of Public Safety and Emergency Preparedness should engage and consult with the LBGTQ2 community and the Justice Department to clarify the criteria for expungement so as to also include consideration of the law of consent and the age of consent at the time of the conviction.

This must be done to ensure that the bill becomes more consistent with the general spirit of subsections 11(g) and 11(i) of the Charter.

The age of consent issue must be resolved following a serious consultation of the Department of Public Safety and the Department of Justice with experts from the LGBTQ2 community.

Honourable senators, although it is our right and our duty as senators to ensure that these constitutional issues are considered in the legislation, I am of the opinion that we must urge the government to work more closely with the LGBTQ2 community so that, together, they can meet the expectations surrounding the apology and address the gaps in the bill.

Honourable colleagues, the committee made other important observations during its study of Bill C-66. First, the committee deemed it necessary, following the interventions of Professors Hooper and Kinsman, for the Government of Canada to hold consultations in order to clarify the definition and criteria of what constitutes an historic injustice.

Clarifying the definition and criteria of what constitutes a “historical injustice” are necessary steps for the minister and the relevant federal departments and agencies in order to determine whether convictions for offences involving indecency, as defined prior to the Supreme Court of Canada’s decision in R. v. Labayeor convictions for prostitution-related offences held to be unconstitutional by the Supreme Court of Canada, in Canada (Attorney General) v. Bedford, comply with the definition and criteria of a “historical injustice.”

Another of the committee’s observation states, when considering the expungement process being set up by the bill, that senators and witnesses were concerned about the fact that the “. . . process appears to keep a large part of the burden of proof — to prove eligibility for expungement — on the victims, rather than on the Crown.”

I want to especially commend the contribution and expertise of my colleague, Senator Kim Pate, who made an important observation in order to urge the Minister of Public Safety and Emergency Preparedness to review the requirement to file an application to have a criminal record expunged. Senator Pate’s observation seeks to encourage the minister to set up a system to have records automatically expunged, somewhat like the process in Germany, or the posthumous expungement model in effect in the United Kingdom.

For obvious reasons, honourable colleagues, the committee wants to draw the attention of the Department of Public Safety and Emergency Preparedness, the Royal Canadian Mounted Police, and the Parole Board of Canada to the need of communicating clearly and in a manner that is accessible to all Canadians, especially members of the LGBTQ2 community, the process for submitting an application and the eligibility criteria.

In closing, honourable colleagues, I must admit that initially this bill seemed simple, but it was much more complex than I anticipated. That is why, throughout my sponsorship of this bill, my staff and I carefully listened to and studied the various requests of the groups and individuals we met with. My team duly and carefully analyzed any advice given by the department, the minister’s office, and witnesses.

Thanks to the testimony that was heard, the expertise of my colleagues, the valuable insight of the Office of the Law Clerk and the Parliamentary Counsel of the Senate, we were able to determine the best approach for improving and implementing this bill in a timely manner.

I would like to thank my parliamentary advisor, Alexandre Catta, for his heartfelt and diligent efforts on this bill. He did a remarkable job.

As people often say about bills, Bill C-66 is not perfect. As my honourable colleague Senator Gold so rightly said in his speech at second reading, and I quote:

. . . Bill C-66 represents the first, but not necessarily the final, step in addressing the injustices that the enforcement of the criminal law visited upon members of the LGBTQ2 community. And that should not be minimized. Bill C-66 will allow for the expungement of the criminal of records of hundreds, indeed thousands, of Canadians who we now judge to be wrongfully convicted. That is both right and good. Let us not allow the better to be the enemy of the good.

Bill C-66 is a work in progress, but it warrants our commitment to continue this work so that any flaws can be remedied in the near future. Since I myself am a member of the LGBTQ2 community, my honourable colleagues will understand why I am so firmly committed to monitoring this situation and doing everything in my power to continue this work, which seeks to address the historic injustices perpetrated against members of this community.

It is true that the bill is a work still in progress. However, it is also true that, like Franz Shubert’s Unfinished Symphony or Leonardo da Vinci’s unfinished works, this bill is still a good bill because it helps to ease the suffering of some of our fellow Canadians. Is that not, honourable colleagues, one of our noblest duties as members of this upper chamber? Thank you.