Bill C-66 (Historical)

Expungement of Historically Unjust Convictions Act

An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts

This enactment creates a procedure for expunging certain historically unjust convictions and provides for the destruction or removal of the judicial records of those convictions from federal repositories and systems. It gives the Parole Board of Canada jurisdiction to order or refuse to order expungement of a conviction. The enactment deems a person who is convicted of an offence for which expungement is ordered never to have been convicted of that offence. The enactment provides that an application for an expungement order may be made in respect of convictions involving consensual sexual activity between same-sex persons related to the offences of gross indecency, buggery and anal intercourse. The enactment provides that the Governor in Council may add certain offences to the schedule and establish criteria that must be satisfied for expungement of a conviction to be ordered. The enactment also makes related amendments to other Acts.

Expungement of Historically Unjust Convictions Act

[The Assistant Deputy Speaker, Anthony Rota]

I wish to inform the House that because of the deferred recorded division, Government Orders will be extended by eight minutes.

Pursuant to order made earlier this day, the House will now proceed to the consideration, at 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.

[Ralph Goodale, Liberal, Minister of Public Safety and Emergency Preparedness]

moved that Bill C-66, An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts, be read the third time and passed.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Mr. Speaker, it is an honour for me to rise on this particular bill.

Today Canadians who were unjustly convicted because of who they love are one step closer to clearing their names and moving on with their lives. They were victims of past federal policies and practices that under no circumstances would hold up in Canada today. They were systematically discriminated against and demeaned, and they spent much of their lives with all the repercussions of a criminal record, unable, in some cases, to find work, or even travel with their families. They were made to feel as though they had committed a major crime, and they were made to feel as though their sexual orientation could determine whether or not they had a chance in life.

Many tried to fight their convictions and lost. Some waited decades for redress, and others nearly half a century. Tragically, some did not live to see this day.

Today we are sending all of them and their loved ones a clear message when we move this legislation forward: their country is deeply sorry. Their country was wrong. Their country wants to make amends and help their healing process.

I would like to take a moment today to thank all members, on both sides of the House, for their dedication to moving this bill forward. I would also like to thank all the activists and all those who have fought for more than 50 years and put themselves in danger to demand these changes over the past five decades.

We have accounted for these issues by adding the provision that in cases where court or police records are not available, sworn statements may be accepted as evidence.

Second, I would like to speak to some of the questions we have heard concerning bawdy house laws. To be clear, bawdy house laws were intended to capture a broad scope of acts deemed immoral at the time. What this bill would do is deal with charges under gross indecency, buggery, and anal intercourse, which were used under the Criminal Code to victimize LGBTQ2 people systematically. We have enumerated those in the schedule to make sure we are being precise and clear.

Some have raised questions about whether we are simply passing the legislation and then leaving the rest to the LGBTQ2 community. That would be a mischaracterization. Once the bill passes, the government will undertake a proactive outreach process for potential applicants to increase awareness of the initiative as well as the criteria and the application process.

The government will work closely with federal partners and stakeholders from the LGBTQ2 community to inform those applicants. We will not leave members of the LGBTQ2 community in the dark. We have set aside $4 million over two years to implement the process, and I am confident that the process will be sound, efficient, and effective.

The Parole Board, once applications are made, will determine, case by case, successful applications, and successful applicants will have their records of convictions permanently destroyed. The RCMP can then destroy any records of convictions it has in its custody, and it can direct other federal departments or agencies to do the same. The expungement order will then be communicated to other courts and police forces as appropriate.

The bill would also allow the Parole Board of Canada to refuse to issue expungements in certain circumstances. More information on the application process will soon be available to potential applicants. It will not be long after the bill receives royal assent that the Parole Board could begin accepting applications.

The suffering the LGBTQ2 community has endured will not be forgotten. The government will contribute a minimum of $15 million for projects to record and memorialize the tragedy of the past and the hope for the future. That includes a national monument here in Ottawa and an education package concerning discrimination against LGBTQ2 Canadians.

I am proud to stand behind the government's efforts to improve life for our LGBTQ2 community.

I invite my hon. colleagues to help eliminate discrimination and right the wrongs committed against the LGBTQ2 community by joining me in giving their full support to Bill C-66.

Before I end, let me say, on behalf of the Prime Minister, the House leader, and all of my colleagues on this side of the House, a very merry Christmas and happy new year to you, Mr. Speaker, and your family, to all parliamentarians and staff for their hard work, to the Clerk and all table officers, to all branches and services of the House administration, to all the families connected to the Houses of Parliament, and to all the loved ones present here today and those we remember because they are now in our prayers and no longer able to be with us. I wish the pages good luck in their exams, and may they have much success in their future endeavours.

Feliz Navidad, merry Christmas, and happy new year.

Merry Christmas to all and to everyone in this place.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, I have had some constituents contact me about the process by which expungement will occur. For example, if someone has passed away and does not have a family member who can advocate for the record to be expunged, is there going to be a process by which someone else could step into the gap so that there is equality in how the expungement occurs down the road?

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Mr. Speaker, I thank the member across the way for her support and the work she has done in her caucus and on matters related to the LGBTQ2 community. It is a good question. It is a question we will look into.

The provisions in the legislation right now are that family members can apply posthumously on behalf of their family members, and we will go through that process. There will be the ability to have sworn affidavits in cases where particular police documents do not exist. I will take the hon. member's question to heart and share it with the minister's department.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Mr. Speaker, I thank the member for Edmonton Centre for his remarks today, as well as the government and the official opposition for co-operating to get this legislation to this point before we rise for Christmas.

I have a concern with the remarks that the hon. member made about the use of bawdy house laws and why they are excluded from this bill. The member must be familiar with the history of police raids on public places frequented by gay men, either gay bars or bathhouses, which were defined as places of prostitution when they were not clearly. This was part of police campaigns to persecute gay men for consensual same-sex activity.

It seems peculiar to me that he is saying—and I hope I am wrong, but I thought I heard him say—that the government is not willing to add to the schedule of offences the use of bawdy house laws, because the Prime Minister included the bathhouse raids and entrapment of gay men in his apology. It seems peculiar to me that the list of offences currently in the bill is narrower than the apology that the Prime Minister gave. I am hopeful the Liberals will correct this, as the bill would allow them to do, as soon as it becomes law.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Mr. Speaker, I thank the hon. member across the way for his leadership on LGBTQ2 issues and the work that he has done in his caucus to get us to this stage.

What is important to understand is that at this stage the bill is speaking to offences related to buggery, anal intercourse, and gross indecency. That is the very clear position of our government. We are listening to the community, as we have done for many months and, indeed, years. We understand where communities are coming from and it is important to say that we understand the devastating consequences that bathhouse raids had on communities. That is why the Prime Minister mentioned the culture of fear and discrimination that our government was part of creating. We take the hon. member's comments to heart as well.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I have some of the same concerns that my hon. colleague from Esquimalt—Saanich—Sooke has raised, and I am sure the member is familiar with these criticisms, which I will put to him.

Gary Kinsman, for instance, a professor emeritus of sociology from Laurentian University, as a historian, noted that the bill does not cover what it needs to cover. Specifically, bawdy house offences are particularly concerning. I want to quote what Gary Kinsman said, which is that this bill “doesn’t cover what it needs to cover. And it’s also been done without any consultation with people in the LGBTQ, two-spirited communities. None of us who are historians and experts on the sexual history of Canada and the sexual regulation of same-sex sexuality have been consulted.”

It is really welcome. I know we are speeding this through before Christmas and we do not usually like to hesitate in passing something that is in the general direction of righting past injustices, but how does the government propose to deal with the exclusions of really significant offences, for which people have records that should be expunged?

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Mr. Speaker, I appreciate the hon. member's work in this area and her commitment to human rights. She will understand well that the 2005 Supreme Court decision on Labaye took a lot of the teeth that were in the legislation pertaining to bawdy house laws out of the legislation. What is important to note is the fact that in its current state, there is no jurisprudence that indicates that the current state of the law post-2005 Labaye would violate charter provisions. That is something we are mindful of.

What is important to note is that this legislation is historical. The Government of Canada stepping in to expungement is something that has never been done before and we take the member's recommendations and comments to heart.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, it gives me great pleasure and it is a great privilege and honour to stand in this place and speak on behalf of this legislation.

For those who may be watching and are wondering what we are doing on the last day before we rise for the December adjournment, we are debating Bill C-66, an act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other acts.

This enactment would create a procedure for expunging certain historically unjust convictions and provides for the destruction or removal of the judicial records of those convictions from federal repositories and systems.

This enactment would provide an application for an expungement order that might be made for respective convictions involving consensual sexual activity between same-sex persons related to the offences of gross indecency, buggery, and anal intercourse.

The enactment provides that the Governor in Council may add certain offences to the schedule and establish criteria that must be satisfied for expungement of a conviction to be ordered.

What does that mean?

I would like to translate what that means and why this legislation is so important to somebody who is a Calgarian. As a Calgary MP, I just want to take a moment and talk about him, because he and many others are the reason why this legislation needs to occur in the first place and “him” of course is Everett Klippert.

I want to thank Kevin Allen, a Calgarian, who has been working on absolutely important work. It is called the Calgary Gay History Project. He is writing a history of this topic in Calgary and he has been doing it for many years. He was very helpful in the consultation that I undertook on this particular issue. This is from him:

Despite homosexuality being a criminal offence in 1960s Canada, and [Klippert's] multiple convictions of gross indecency, he was always frank and truthful in his interactions with the state, even though he paid a severe penalty for that honesty.

When Calgary Police questioned him about the 18 names in his little black book, which was also his dating record, he confessed to having had homosexual relations with them all.

In Pine Point, NWT, local RCMP brought Klippert in for questioning and threatened him with an arson charge of which he was innocent. Using it as leverage to open Klippert up about his sex life, he readily confessed to having had intimate relations with four men there.

In every court case, he pled guilty. A court psychiatrist reported that Klippert told him his “homosexual behaviour had existed since the age of 15; that to him homosexual activity [was] his only satisfactory sexual outlet. He found the thought of heterosexual conduct abhorrent. He told me that he never had heterosexual relations.”

Gay activist and lawyer Douglas Saunders interviewed the incarcerated Klippert in December 1967 in what he described as “the fortress-like Penitentiary at Prince Albert, Saskatchewan.” His unjust treatment gave his convictions a certain resolve. Klippert told Saunders: “If I meet someone on the outside now and he asks me, I'll say sure I'm a homosexual, what are you? I'm not going to be ashamed of it anymore.”

Klippert who grew up Christian took comfort in his prison bible and noted Psalm 22:24 to Saunders: “For he has not despised or scorned the suffering of the afflicted one; he has not hidden his face from him but has listened to his cry for help.”

This man should not have been incarcerated. I do not know what more to say than that. This legislation is important because it would reverse that. I cannot imagine. I read John Ibbitson's piece on him. He noted how his family was reluctant to talk because they did not want to have to revictimize him posthumously.

I am really glad that we are pushing this legislation through the House of Commons, because one of the things that I stand behind in my party and in our policies declaration is a belief in the equality of all Canadians. It is right there.

Every once in a while as Canadians we really have to think about what equality means. It is a beautiful thing for me to be able, generations after Mr. Klippert, to think that there is no situation in which my government would persecute me based on who I love or what I do in my personal life.

Can members imagine what the people who are subject to this bill had to go through? The stories that I heard when I went through the consultation for the apology were the antithesis of what equality means. I heard from someone whose lesbian partner at that point in time was actually physically hauled out of her house for questioning on allegations of her sexual preference. There was the “fruit machine”. I have had people write into my office and say, “the government is spending so much on this apology”. We spent a lot of taxpayer dollars back then persecuting people. We spent a lot of taxpayer dollars developing a “fruit machine”. That is a dark point in Canada's history. If we are going to stand up and talk about equality, there cannot be partisan differences. It just should be something that we all accept, and that is why this bill is important.

For people who had to go through a criminal conviction or suffered employment loss or anything that gave them a record based on whom they love, that is not equality, that is not Canadian, that is a violation of human rights. If we stand here as Canadians and talk about how we comport ourselves in international relations when we demand other countries to behave certain ways, we had better be getting it right at home, consistently, all the time.

What this bill is trying to do, in its spirit, is a no-brainer. I appreciate that my colleagues are bringing up technical points. I know that my colleagues within our party have brought up some technical points too. My colleague across the way acknowledged that this is the first time, I believe, that expungement happened. We are, in good faith, believing that this bill will do what it is intended to do. There will be time to hold the government to account on that, certainly. I am very pleased to be here today to say that there is no question that this should happen. I want to be very clear about that. From the bottom of my heart and from the depth of my soul, if we want to believe in the equality of all Canadians, no Canadian should have a criminal record for loving somebody. It is really as simple as that.

It is really cool to be able to stand up and support this bill, and I think it is really cool that this bill has all parties' support. It is something that Canada can celebrate internationally. I encourage individuals who have questions or concerns about this bill to really have a hard think about the rights that they have as Canadians, to really have a hard think about what equality means for them. If we do not make everybody equal, we have lost what it means to be Canadian. Whom one loves should not be a question of equality. There should not be historical or current criminal penalties for that. There should not be discrimination against that. It is just wrong.

To you, Mr. Speaker, and for all of my colleagues in this House, it is fantastic and pretty cool that we are debating something of such importance as we rise for Christmas break. Every once in a while, we do something here that resembles work. Because I am not sure anyone has ever done this in the House before, I am going to quote RuPaul, “If you can't love yourself how in the hell you gonna love somebody else?”

Merry Christmas.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Mr. Speaker, I want to thank my hon. colleague for her heart and her commitment. It is truly an honour, as a fellow Albertan, to stand in this place and hear those words.

I would like to share for my hon. colleague a comment that I shared with my caucus colleagues a while back after the Orlando shootings. What I said is that if they have ever been in public with their loved one and they have never had to pause before grabbing their hand, then they do not know why the gay and lesbian clubs we have in our country are necessary, because they are safe spaces. This legislation in the past would have applied to me. I would probably already be in jail 30, 40, or 50 years ago.

Not as a member of Parliament, not as a party boss, but as a citizen of Canada, a great Calgarian, why does this matter so much to the member personally that we continue to focus on the basic equality of all Canadians?

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, it is very simple. Equality is not something that is achieved and is static.

Many Canadians will have grown up blissfully free of any sort of knowledge of what it is like to be persecuted for their beliefs, for who they love, or for their gender, but that is not the case in all situations. Those rights, that equality, those freedoms are under constant attack.

Many people in Canada have not travelled to some place where those basic rights do not exist, where they have to act differently or fear for their safety. That is the reality. Around the world, some of us could be killed for even talking about this.

The reason why it is so important for Canadians to be unequivocal and unanimous on issues like this is that if we are not unequivocal and unanimous on issues here, we cannot change the world. Also, at home, there is always more work to do.

We are a pluralistic country. We just need to ensure we never take our rights for granted.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Mr. Speaker, it is important to note the progress we have made in Canada, when there are still more than 70 countries where it is illegal to be gay, and more than 17 jurisdictions where people can be put to death for being a gay man.

Just having the bill before us is a marker of progress. In particular, having all-party support for the bill, and particularly Conservative Party support, is a sign of progress. I want to thank the member for Calgary Nose Hill for her work in opposing discrimination and promoting acceptance for the LGBTQ2 community.

I am a little unhappy with her today since she has stolen from me the ability to be the first one to quote RuPaul in the House of Commons, but I will forgive her for that. I really do not have a specific question for her. I just want to acknowledge how far she and many others in her caucus have come, as well as what appears to be a united Liberal Party. I also want to thank the member for Saanich—Gulf Islands for her support of the bill as well.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, my colleague across the way asked why these bills were important. I spoke about the need to constantly protect human rights. With people like my colleague who just spoke, I know Canadians will never be without a voice, questioning how we can put things forward.

At the end of the day, as we close Parliament for this session, that is how this place should work, when legislation is pushed forward, we have a variety of different voices being the moral compass of Canadians, the fiscal watchdog of Canadians.

We are pretty blessed in that the stuff we argue about here makes our country a lot better, one way or another. I know it gets heated, but this bill, when it passes, will be a milestone and it will be something that pushes our country forward in a better way.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Mr. Speaker, as a gay man, I take particular pride in standing in the House today to speak to Bill C-66. For me, the bill is an important and necessary part of the apology delivered by the Prime Minister in the House just a week ago. In that apology, the Prime Minister acknowledged that governments in Canada had run campaigns of humiliation, intimidation, firings, and persecution of fellow Canadians on the basis of their sexual orientation. This ranged from interrogations; to pressure to inform on colleagues, to firings from the public service, the foreign service, the RCMP, and the Canadian Forces; and to campaigns by police targeting gay men for consensual same-sex activity, all of this despite the fact that most forms of same-sex activity were legalized in 1969.

As a gay man of a certain age, I also take a personal interest in the expungement legislation. It was probably more a matter of luck than anything else that I was not caught in the nets cast to capture gay men in public places, like the 146 men arrested in raids on two gay bars in Montreal in 1977, places and a year in Montreal which I am familiar. More than 300 were arrested in raids on four bath houses in Toronto in 1981.

What is important about these two events is that both of them sparked public demonstrations for the first time against these campaigns of arrests. More than 2,000 turned out in Montreal and more than 3,000 turned out in Toronto. These demonstrations marked the beginning of the organized resistance of the LGBTQ community against these campaigns of oppression, resistance which has ultimately led to this legislation being before the House today.

Correcting some of the injustices resulting from these campaigns is indeed the purpose of Bill C-66, as those subject to these campaigns suffered real consequences. However, some of these consequences can never be reversed, especially as many of the resulting charges led to public humiliation when the names of those arrested were released for publication in the media, this at a time when being out was not really a thing and was far from being socially acceptable. Those who were convicted found themselves with severe limitations on their ability to retain jobs or to find new jobs if they were fired, as discrimination on the basis of sexual orientation was only outlawed in most jurisdictions in the 1990s, with the notable exception of Quebec, where it took place in 1977, and Manitoba in 1986.

A settlement of the class action law suit launched by those who were fired from their federal jobs, and on which agreement in principle was reached only days before the apology, will provide some monetary compensation to those still living who lost jobs. However, there are other consequences of convictions resulting from these campaigns against consensual same-sex activity that continue to this day.

Those with criminal records remain prohibited from volunteering with vulnerable people, whether that would be serving as a role model for LGBTQ2 youth, as foster parents, or volunteering to serve seniors with dementia. Of course, criminal records often result in severe restrictions on the ability to travel abroad.

While I am glad to see the legislation being dealt with expeditiously in the House, I have to remind my colleagues that many in my community have waited decades for this moment to come. Many never thought we would see this day and many, in fact, did not live to see this day, some simply because it has taken too long and some because having their lives and careers ruined as a result of those campaigns led them to take their own lives.

In 1992, NDP MP Svend Robinson raised the question of the gay purges with Conservative Prime Minister Mulroney, and he responded that “if” these campaigns had occurred, they would have constituted human rights violations and should have been investigated. However, 25 years ago nothing came of this.

Activists within the LGBTQ community first made formal demands for an apology in 1998, nearly a decade ago, but the Liberal government of the day did not respond. In 2014, long-time NDP member of Parliament and first out lesbian in the House, Libby Davies, introduced a motion calling for an apology. Also in 2014, NDP MP Philip Toone introduced a bill to get rid of these unjust criminal records.

When we look at how the LGBTQ2 community has pursued an apology and expungement of criminal records for 25 years, the words fast and expeditiously need to be used sparingly when it comes to Parliament acknowledging the unjust treatment of the community and responding appropriately.

Nevertheless, I take the apology very seriously. I hope it will be a springboard for action, not just to redress previous wrongs but to launch efforts to remove ongoing discrimination against my community, including ending the gay blood ban, fully implementing Bill C-16 to bring about equal treatment for transgender and gender variant Canadians, and ensuring the concerns of two-spirited Canadians are addressed whenever reconciliation is on the table.

At this point, I should restate the NDP position on the bill, and that is that the bill should go forward quickly, as there are ways within the bill itself to deal with the concerns that have been raised since it was tabled.

It is unfortunate that the community and the many researchers and activists who have been working on this issue were not consulted in the drafting. those like Gary Kinsman and Patrizia Gentile, who we can actually say wrote the book on this, when they published their book The Canadian War on Queers in 2010. For some reason, the Liberal government was determined to keep consultations on redress separate and apart from consultations on the apology itself.

Turning to the contents of Bill C-66, there is of course one big omission in the bill. It excludes bawdy house offences from the list of offences for which one can apply for expungement, never mind that raids on gay bars and bath houses were key parts of the campaign of persecution against gay men. It is a curious omission from the list for which one can seek expungement when the Prime Minister himself clearly labelled use of bawdy house provisions against the LGBTQ2 community as discriminatory, and specifically included both bathhouse raids and entrapment by the police in his apology. Therefore, it seems wrong that the list of offences in the bill is narrower than the apology delivered by the Prime Minister.

One might ask why am I arguing this bill ought to go forward with this gap in it. Clause 23 of the bill allows cabinet to add offences to the schedule by order in council. I trust the Liberal government will consider these issues that have been raised and discussed here today and will fully implement the apology after the bill passes by adding bawdy house offences to the schedule. The New Democrats will be here to remind the Liberals if they should forget or dawdle.

Some have expressed a concern that offences added later would have lesser status and could easily be removed by a future government. Let me point to the testimony by officials in the public safety committee Monday, reassuring us that once offences were in the schedule it would require legislative action to remove them.

On the question of ensuring there are no obstacles to LGBTQ2 citizens being able to use the expungement process, again we heard reassurance from the public safety, justice, and Parole Board officials. First and foremost was the confirmation that we had again here today, that there would be no fee to apply for expungement. Second, there was assurance from the Parole Board that the application process would remain “simplified” and that staff would be made available to help citizens file their applications so they would not be required to retain legal counsel to do so.

Another concern is the question of what would constitute proof of consent for offences, which are often quite old and are convictions for offences for which the question of consent was not germane to the conviction. The bill says that it has to have been consensual sex. Again, officials assured the public safety committee that dealing with this question was the purpose of proposed section 7(3), allowing sworn statements where records, and therefore evidence on the question of consent, are not available. Further, the government's charter statement on Bill C-66, which was tabled yesterday, very clearly says the following, “Pursuant to sections 12 and 13, the Board must expunge if there is no evidence that the applicable criteria are not satisfied...”

With regard to the age of consent provisions, officials again pointed out that the laddering provisions in effect at the time of the conviction allowing exemptions for those close in age would still apply to the expungement.

I stand here today as a proud member of the LGBTQ2 community and a proud member of a House of Commons, which has acknowledged the historical campaigns of persecution against my community, apologized for those injustices, and with this bill, has begun the process of redress that will complete the apology.

My community waited decades for this acknowledgement and apology, so I am glad we have moved quickly on the bill, even if we were very late at getting to the starting line.

Let me stress once again my hope and the hope of my community that the apology will mark a turning point and a springboard not just for action to address the historical injustices, but a springboard for action to remove ongoing discrimination.

Members of the LGBTQ2 community who were the subject of campaigns of persecution should not have to wait longer to see the formal part of these injustices undone. We have come a long way, but there is still more work to do.