Honourable senators, I rise today to speak in support of Bill C-66, the proposed expungement of historically unjust convictions act.

Bill C-66 acknowledges the injustices experienced by individuals expressly targeted and criminalized by Canada’s historically homophobic laws. It offers a process for erasing criminal records for 9,000 Canadians who, because of their sexual orientation, experienced travesties of police surveillance and violent raids, public outing and humiliation, criminal trials and jail time, and the lingering burden and stigma of criminal records.

It follows from the apology that the Prime Minister offered to Canadians who have lived with the fear and reality of private details regarding consensual same-sex activities being sought out and used to take away their livelihood, their dignity, their safety, their very identity and for far too many resulting in the loss of their lives.

One facet of this ongoing discriminatory treatment has to do with criminal records. Criminal records impose significant barriers to employment, volunteer work, education and, increasingly, even access to such requirements as basic rental accommodations.

Canada’s record suspension system — more so the pardon system that preceded it — was meant to remove the barriers related to criminal records for individuals who have paid their debt to society and are working to establish their lives in the community.

Bill C-66’s expungement system will offer increased accessibility in some important ways for those convicted of consensual same-sex activities. Notably, Bill C-66’s system is free. Under the current record suspension system, the application fee of $631 is prohibitive to most, all the more so when other administrative fees are added on.

Bill C-66 provides for the removal rather than just the suspension of a record.

The importance of this distinction was emphasized in Public Safety Canada’s 2017 public consultations on record suspensions, where 64 per cent of respondents raised concerns about the concept of record suspension. In the words of one respondent, a record suspension “implies a continuing distrust of a character that is still considered delinquent and untrustworthy,” which would be at odds with the system’s aim of recognizing the value of rehabilitation and the importance of expunging records.

While we may applaud the lack of fees, we decry the ongoing requirement of Bill C-66 that individuals make applications for expungement with the obligation of providing evidence and statements relating to convictions that may have occurred decades and decades ago.

Public Safety Canada’s consultations found that 74 per cent of respondents thought that the process of applying for a record suspension was “hard” or “very hard.” They cited difficulties and costs related to obtaining record checks, completing complex forms, and the lack of a streamlined process. Eighty-three per cent of respondents stated that pardons or record suspensions should occur automatically without the need for an application process or a fee collection regime. An application process is not necessary and should, in fact, be eliminated to avoid repeating the mistakes of the record suspension system, particularly with respect to accessibility.

As legislators reflect on the unjust criminalization of lesbian, gay, bisexual, transgendered, queer and two-spirited individuals, we must face the reality that these injustices are securely rooted in this very place. In 1892, this chamber passed a bill creating the crime of gross indecency to expand so-called buggery laws imported from England. The bill was enacted at a time in our history, honourable colleagues, when 50 or more of those of us currently here in this place — that’s more than half of us — would have been denied the right to express our political will by voting in federal elections, let alone the privilege of sitting in this chamber simply, because of our gender, our race, and if we are out, our sexual orientation.

This bill, honourable colleagues, was Canada’s first Criminal Code. I raise this point not because I think our criminal law is the same as it was in 1892. I acknowledge, of course, that the Criminal Code has been amended in many ways since then. But, particularly in light of the verdict of the Stanley trial in Saskatchewan this past weekend, I want to underscore the staying power of discriminatory assumptions and biases that indelibly impact legal actions and court decisions. I want to particularly emphasize the difficulty of eradicating and moving past ideas belonging to another time when they have been normalized and ingrained in the minds and laws of a nation.

The provisions that are the focus of Bill C-66 are relatively easy ones to root out of the law. They are the criminal law provisions that can be easily identified as discriminatory on their face, with language expressly targeting consensual same-sex activities. But this is only one way in which LGBTQ2S individuals have been systemically oppressed and marginalized by Canada’s criminal laws.

For example, the Criminal Code provision regarding indecent acts has historically been used by police to justify surveillance and arrests for consensual same-sex activities. I thank Senator Cormier for his most personal and impassioned and insightful identification of these issues via the description of his own experience as a young man. We know that these situations happened elsewhere. For instance, there were as many as 369 arrests in Toronto alone between July 1982 and April 1983.

Other examples are the obscenity provisions, which have criminalized individuals and bookstores for selling publications, including children’s books such as Belinda’s Bouquet, one of my son’s favourites when he was a child. Thirty years ago, it was the only children’s book about body size and shape. It was outlawed simply because one of the children in the book had two mommies.

Unjust convictions under those sorts of provisions cannot be traced back to any discriminatory words in a statute. Instead, we must consider how the provisions applied in a context of historical targeting of LGBTQ2S individuals, based on fear and prejudice. As documented by human rights advocate Michelle Douglas, state policies built on the premise of heterosexual moral superiority consistently also labelled individuals as threats to national security. Though simply removing the resulting criminal records will never be enough, those criminalized for consensual same-sex activities under provisions related to indecent acts, obscenity and vagrancy should be equally entitled to expungement of their criminal records. I encourage the committee that studies this bill to consider the inclusion of these provisions in Bill C-66.

Bill C-66 contemplates expanding the types of convictions eligible for expungement by adding other Criminal Code provisions that are sources of unjust convictions to a list in the bill’s schedule. The process of doing so raises several concerns, however, as the process is to be done solely by the Governor-in-Council. The schedule is also restricted to provisions that are contrary to the Charter and no longer crimes — criteria that fail to capture many sources of unjust convictions and other decriminalized acts.

We must not forget the cases of marginalized, victimized and impoverished women, as well as the men and youth, convicted under now-defunct prostitution provisions. In addition, as Bill C-45 is being debated in this place, we must also consider what will likely soon be historical convictions related to marijuana use. How many lives might have been saved from criminal justice ensnarement but for such convictions? These records also need to be expunged.

As we contemplate what constitutes an unjust conviction, we must push and challenge ourselves, our experiences and our assumptions. Returning to considerations in this place of Canada’s first Criminal Code, I cannot help but think of all those not adequately represented in this or the other place at the time, including indigenous peoples, racialized and ethnocultural groups, women, poor people, and individuals who are open or out with respect to their non-heterosexual orientation. Too many of these inequalities in the criminal law are still affecting these groups, more than 125 years later, in ways that too often result in unfair and discriminatory treatment and unjust convictions.

I cannot help but think of Colten Boushie and how Canada’s criminal law system has so utterly failed to do justice for him, his family and so many others. Much of the commentary surrounding the Stanley case this week has blamed these failings on the lack of indigenous representation on Mr. Stanley’s jury. Jury selection processes are indeed a problem, but compared to the systemic racism that indigenous peoples have experienced and continue to experience in Canada in the justice system and in all facets of their lives, reforming jury selection is simply one cog in the massive machine that is our criminal justice system.

We must do better for Colten Boushie and for all those who are victimized, as well as those who are unjustly criminalized in large part because of the discriminatory convictions and principles steeped in racism, misogyny, impoverishment and more — attitudes that allow decisions too often to be snuck past us and then to find themselves embedded in our justice system.

The overrepresentation of indigenous women in prisons in Canada is increasing, with indigenous women representing between 36 and 39 per cent in federal prisons. Ninety-one per cent of these women have experienced physical or sexual abuse, and many have disabling mental health issues. These same issues that result in indigenous women going missing and murdered contribute to them being jailed at alarming rates. All evidence indicates that indigenous women and men are being victimized and criminalized because our laws and our policy are failing at a systemic level to provide them with support and safety and equality.

In 1892, Parliament enacted the legislation that has led to unjust convictions for LGBTQ2S individuals. In 2018, I am honoured and humbled to be here in Parliament as we acknowledge and work to remedy some of these historical wrongs through Bill C-66. In the intervening 125 — almost 126 — years, Canada has learned much about the values of diversity, equality and justice. It is my sincere hope that Bill C-66 is only the beginning of ongoing efforts to put an end to —

To conclude, Canada has learned much about the values of diversity, equality and justice. It is my sincere hope that Bill C-66 is only the beginning of ongoing efforts to put an end to and to remedy all forms of discrimination, most particularly when they result in unfair criminalization and other forms of injustice. .

Hon. René Cormier: Would Senator Pate take a question, please?

Senator Pate: Yes, of course.

Senator Cormier: I wish to thank you for this engaging and interesting speech.

In light of the issues you have just highlighted, it appears that you have greater concerns on the state and nature of the Canadian pardon system rather than on those addressed in Bill C-66. As such, would you suggest a broader review of the pardon process currently in place in Canada? Could you please expand on that?

Senator Pate: Yes.

How very astute of you. In fact, there are many issues around the pardon process, not the least of which is the application fee, which becomes exorbitant and many people can’t afford. As well, many people are then precluded from continuing their reintegration into the community. There are many reasons I think we should be looking at the pardon process overall. I think the steps in Bill C-66 provide a really wonderful opportunity, ones that we can improve upon to move forward with this process. Thank you for the question.