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

[Amarjeet Sohi, Liberal, Edmonton Mill Woods, AB]

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 second time and referred to a committee.

[Mark Holland, Liberal, Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, it is an honour to rise in the House today to speak to Bill C-66.

I, along with all members, was in the House for the landmark apology that was offered by the Prime Minister to the LGBTQ2 community. The apology was then echoed by every party leader in the House. It was an incredibly moving moment.

I remember debating same sex marriage in the House. I remember how difficult the debate was and how proud I was to support the legislation at the time. To see how much progress we have made on this issue as a country is very heartening.

I attended an event that the Canadian Human Rights Voice hosted, where Todd Ross was honoured, and he shared his story. He served in the Canadian military with distinction. However, as a very young man, he was forced, through lie detector tests, to come out to two strangers in a room that he was gay, before he had the opportunity to come out to anybody else, and he was forcibly removed from our military. To hear share his story, and what that apology by our Prime Minister and every party leader meant to him was so important. We already see the effects of that apology. However, that apology in and of itself is not enough.

The Prime Minister's assertion that the injustices will never be repeated again, that we will not make the same mistakes is essential. Therefore, it is absolutely critical that we work with the lesbian, gay, bisexual, transgender, queer, and two-spirit communities to make right past wrongs and to ensure this never happens again. We are proud of the relationship we have with this community, but we recognize how much work needs to be done. Bill C-66 is a critical part of that.

It is difficult for many of us to fathom that there was a time in our history where laws allowed persons to be charged, prosecuted, and criminally convicted simply because of who they loved. LGBTQ2 Canadians were humiliated, imprisoned, and saddled with criminal records because of their sexual orientation. They were forced to live with permanent stains on their lives when they had done nothing wrong, until now.

Bill C-66, the expungement of historically unjust convictions act, would create a process to permanently destroy the records of a conviction of offence involving consensual activity between same sex partners that would be lawful today. It would give the Parole Board of Canada jurisdiction to order or refuse to order expungement of a conviction. It would deem a person convicted of an offence for which expungement was ordered never to have been convicted of that offence.

This is very different from other processes that currently exist today. For example, a record suspension or pardon, the purpose of which is to remove barriers to reintegration for former offenders, does not destroy the criminal record. It sets aside for most purposes, but the criminal record could be disclosed or revoked in certain circumstances when public safety is at risk. Also, record suspensions or pardons cannot be granted posthumously, meaning those who have died do not get an opportunity to have their name cleared.

In contrast, the government fully recognizes that those convictions constitute a historic injustice and that they should not be viewed as former offenders. They are not only wrong today but they were wrong then, in violation of our charter, and of fundamental rights. These convictions were for an act that should never have been a crime. However, this expungement process will allow these convictions to be fully and permanently removed from federal databases.

For thousands of Canadians impacted, the process will be straightforward. Applying will be free of charge. Those eligible to apply directly can do so to the Parole Board. In the case of deceased persons, a family member, loved one, or other appropriate representative will be able to apply on their behalf. This is consistent with the recommendation of Egale Canada's human rights trust.

Applicants will need to provide evidence that the conviction meets certain criteria, including that the act was between same-sex individuals, that it was consensual, and that those involved were at least 16 years of age or subject to a close in age defence under the Criminal Code.

Upon confirmation of a successful application, the record of the conviction can be destroyed. That means once the Parole Board orders expungement, the RCMP will permanently destroy any record of the conviction in its custody. It will also notify any federal department or agency that to its knowledge has any records of the conviction and direct it to do the same. Relevant court and municipal and provincial forces will be notified of the expungement order as well.

Expungement offers more than a clean criminal record check. It is recognition that the conviction was unjust and that it never should have occurred in the first place. It is recognition that it was inconsistent with the fundamental rights now protected under the charter of rights and freedoms.

All of this is not to say that there will be blanket expungement. Indeed, we want to ensure we are only catching those who meet the set criteria. Criminal records for individuals convicted of non-consensual sexual activity will continue to be upheld. Applications submitted for an ineligible offence or by an ineligible applicant will also be rejected. Furthermore, an automatic expungement process would be irresponsible as it could result in the expungement of records for acts that are still criminal.

However, those eligible will find the process to expunge their record very straightforward. This includes military service members whose offences sometimes were prosecuted under the National Defence Act. That is why we have allowed for a schedule of eligible offences that will apply to convictions under the Criminal Code as well as convictions under the National Defence Act.

Applications must be for offences listed in the schedule of the act, and initially this will include buggery, gross indecency, and anal intercourse.

The act would allow for the Governor-in-Council, in future, to make other historically unjust convictions eligible for expungement by amending the schedule of eligible offences, and as necessary, criteria through order in council.

Given the historic nature of these offences, if court or police records are not available, sworn statements may be accepted as evidence.

It should be noted that anyone attempting to mislead the Parole Board about a historical offence can be charged with perjury.

To put all of this in place, the government has set side $4 million over two years to implement this new process. Proactive outreach will also be undertaken to increase awareness of the initiative, the criteria, and the application process among potential applicants. The government will work with federal partners and stakeholders from the LGBTQ2 community to inform potential applicants.

It is now incumbent upon us to ensure that happens sooner rather than later.

The moment the bill is passed we can begin accepting applications, which is why I would urge all members to pass the bill as expeditiously as possible. The Parole Board of Canada can begin accepting applications as soon as this legislation is brought into force.

At the same time the government introduced the bill, it announced a settlement in the class action lawsuit for actions related to the purge. This will provide up to $145 million to former public servants and military and RCMP members impacted by state-sponsored systemic oppression and rejection.

The agreement in principle also includes a minimum investment of $15 million by the Government of Canada for projects that will record and memorialize those historic events, so we never forget our past, so we never repeat it again in the future. That includes museum exhibits curated by the Canadian Museum of Human Rights. It includes a national monument located right in Ottawa, along with an education package memorializing the historic discrimination against the LGBTQ2 community.

As I have mentioned, all of this represents an important step but not a panacea. Working to create the inclusive and diverse country we want will take sustained effort and collaboration on all our parts.

As the Prime Minister noted in his apology, “Discrimination against LGBTQ2 communities is not a moment in time, but an ongoing centuries-old campaign. We want to be a partner and ally to LGBTQ2 Canadians in the years going forward.”

That is why we have been and will continue to work hard to address issues impacting lesbian, gay, bisexual, transgendered, queer, and two-spirit individuals.

I am deeply proud of what the government has accomplished to date and of the work that is still ongoing. Just over a year ago, the Prime Minister named the hon. member for Edmonton Centre as his special adviser on LGBTQ2 issues. An LGBTQ2 secretariat has also been established within the Privy Council to support government initiatives on these issues.

With the recent passage of Bill C-16, gender identity and gender expression are now prohibited grounds for discrimination under the Canadian Human Rights Act. Bill C-16 also expands hate propaganda offences in the Criminal Code to protect identifiable groups that are targeted for their gender identity or expression. Another piece of legislation, Bill C-39, has been introduced to repeal section 159 of the Criminal Code.

Work is also under way to develop a long-term vision for blood services that ensures safety and non-discrimination in donation practices. In fact, the Minister of Health was instructed in her mandate letter to work with the provinces and territories toward that very goal.

The government is working toward adopting policies and practices that remove unnecessary collection of gender markings in government forms. We are also working to introduce an X gender designation on passport applications. This would ensure Canadians who do not identify as either male or female receive the same services and support as everyone else does.

The government also plans to commemorate the 50th anniversary of the decriminalization of homosexuality in 2019. It will do so by providing funding for initiatives that increase awareness of the people, actions, and struggles that led to that milestone.

For example, more than $770,000 in federal funding will be provided to the Egale Canada Human Rights Trust to support the “Legalizing Love: The Road to June 27, 1969” travelling exhibit project.

I am also proud to note that Canada is actively promoting LGBTQ2 rights on the international state, including as co-chair of the Equal Rights Coalition.

Since 2014, we have provided $2.9 million in funding for projects that support violence prevention programs, awareness campaigns, and advocacy efforts in support of LGBTQ2 communities abroad. These include initiatives aimed to combat homophobia, transphobia, and biphobia in education systems.

In Canada, we know that LGBTQ2 youth have a disproportionately high rate of homelessness. According to a 2016 Statistics Canada study, while members of LGBTQ2 communities make up between 5% and 10% of our population, they represent between 25% to 40% of our homeless youth. A new and unique facility, currently under construction in Toronto, will be exclusively dedicated to serving this very vulnerable group. The Egale Centre will offer transitional and emergency housing, as well as counselling services, for homeless LGBTQ2 youth.

Last week, the government announced just over $47,800 in federal funding to help improve the Egale Centre's security. The funding will be used for the installation of security cameras and access control systems. The enhanced security measures will mean greater peace of mind and a safer and more secure facility, for the benefit of the Egale Centre's residents, staff and volunteers.

I am proud to stand with a government that is committed to protecting the fundamental human rights of all Canadians. All people, regardless of sexual orientation, gender identity, and gender expression must be able to live their lives free from stigma, violence, discrimination, or prejudice.

Sadly, as we know, there was a time in our history when the prevailing attitude to LGBTQ2 issues was very different from today. People could be criminally charged and convicted simply because of their sexual orientation. The could lose their jobs, their livelihoods, and their loved ones, or be barred from serving their country. They could be bullied, ostracized, and made a pariah by their own government.

The landmark bill we are discussing today is an important and necessary step toward righting the historical discrimination faced by LGBTQ2 Canadians for so many years. It is a key step we are taking, but is only one of many. It is in the context of a world in which calls for equality are slowly being answered.

Just yesterday, the legalization of same-sex marriage occurred in Australia. It joined countries like the U.K., Germany, and many others. They are also looking at making reparations for the historic discrimination that happened to the LGBTQ2 communities within their countries.

We remain in a world in which many LGBTQ2 individuals are still forced to live in fear, fear of being rejected, fear of being hated, fear of facing violence or even facing death, just because of who they love. Sometimes the gaps appear so far apart, they are like worlds we cannot bring together. However, as the proverb goes, a river cuts through rock not because of its power, but because of its persistence, and the calls for an inclusive world in which diversity can thrive are stronger and more persistent than ever. The apology that was given by all of the leaders in this House was demonstrative of that. The fact that we can come together as a House and be able to stand and acknowledge our part with respect to the wrongs of the past, as well as to be able to talk about the future we want, not only for our country but for all people across the world, about basic human rights, and the right as basic and as simple as being able to love the person that one loves without fear of reprisal, is something that we can stand for and propagate.

I am proud to introduce this bill. I urge all members to support it expeditiously.

[Sheri Benson, NDP, Saskatoon West, SK]

Mr. Speaker, I want to pledge the NDP's support to work quickly to have the bill passed. Like many bills, it is not totally perfect, but we will move it forward.

I have one question. I am hoping the parliamentary secretary will be able to give a bit more detail with respect to it. He announced some funding to help with rolling out this legislation. I am wondering if the government will be looking at the fee for pardons. Normally, the fee charged by the Parole Board is $600. I am wondering if the government is open to reducing that fee to zero, as the law was unjust, and people should be able to move forward without any cost to themselves.

[Mark Holland, Liberal, Ajax, ON]

Mr. Speaker, I want to thank the member opposite for her support and her commitment to work on moving this legislation forward expeditiously. As she knows, the day that we get this legislation adopted is the same day that people can begin the process of making those applications and having their records expunged so they can move forward with their life, finally free of the stigma of these past convictions.

On the question of expungement, it will be free. The question of pardons is another matter. We are looking at pardons separately. This does not mean just because we are dealing with expungement that we will not be dealing with pardons. That simply will be dealt with in a separate piece of legislation, at which time we will be talking about things related to pardons, including the cost.

[Chris Bittle, Liberal, St. Catharines, ON]

Mr. Speaker, I would like to thank the hon. parliamentary secretary for his work on this file over so many years in office in this place.

I had a unique perspective during the apology. I had the opportunity to look up at the gallery, see the faces of the individuals who had suffered at the hands of their government simply because of who they love, see the power of the apology, and see the power of those words.

I was wondering if the parliamentary secretary could expand on the power of action to back up those words, and what this bill does to advance the government's and this Parliament's position toward the LGBTQ2 community. Could he provide comment on that?

[Mark Holland, Liberal, Ajax, ON]

Mr. Speaker, I thank the member for St. Catharines for his work on this file. I know that it is an area that is very important to him.

Certainly, the apology was powerful for all of us as we sat in our seats and had the opportunity to hear the Prime Minister speak and hear the other party leaders speak. We had the opportunity to witness in the gallery the impact of those words. As well, in our own communities, members have been able to talk to people who were really wronged in egregious ways, and who had to carry that around, and the feeling of vindication that they have, not only with the apology but the opportunity to be able to get the records expunged, and for that process to be different from other processes. This is not simply forgiving somebody because time has passed and we are trying to reintegrate them. This is saying to people that this should never have happened to them, and destroying that record is the clearest and the most powerful way we can do it.

That is why this bill is such an important compendium to the apology that we made. However, that unto itself is not enough either. We need to go through and look at every single way in any means that we can, to ensure that the types of injustices that occurred in the past do not get repeated in the future.

That is why we have our partnerships at the community level, and our other partnerships, to ensure that there are resources available to those people who face discrimination, whether they be in the LGBTQ2 community, or any other Canadian who is facing discrimination. In this way people will be given the resources to be able to fight back and to be able to live a life free from that kind of shadow being cast on them.

We would think that would be an easy thing in Canada. We have come a long way, but we still have a long way yet to go. That is why we do not hold this out as a panacea. There is more that has to be done. I tried to address some of that in my speech, but I think it is an important point that the member makes.

[Sheri Benson, NDP, Saskatoon West, SK]

Mr. Speaker, I want to ask the parliamentary secretary a follow-up question.

Pardon my ignorance; I do not come from a legal background. Could the hon. member clarify that if someone has their criminal record expunged, will he or she go back to not ever having a criminal record? If that is not the case, and I am missing a legal piece that I do not quite understand, is it that people will then have to also get pardons?

My question is this. If there is a cost involved in that process, will the government entertain not charging a fee with that? Could the hon. member enlighten me a bit about the fact that there are maybe two steps to a process that I did not quite recognize?

[Mark Holland, Liberal, Ajax, ON]

Mr. Speaker, in fact, these are two separate processes.

Just to be very clear, because I think it is an important point, if somebody was convicted and we have three offences that are listed here, buggery, anal intercourse, or gross indecency, these are convictions that should have never occurred. They are a violation of people's fundamental Charter of Rights. We are acknowledging that these are a very different class of offences than any other because they should never have existed.

Expungement means a complete destruction of those records. They are gone. Once somebody applies for expungement, it is destroyed within their record. It does not exist any longer. It should be noted that that is only available for those offences where it was between consenting adults, where it was same sex in nature, where they were 16 years of age, or where there was a close in age provision, so that we are really dealing with just those.

The RCMP has said that there are about 9,000 on file. That does not mean that the full 9,000 are available for expungement because some of those might not have been consensual, or some of those individuals may have died and somebody might not exercise the right posthumously, although it was available for them to expunge it. This is very different than the process that exists for somebody who is seeking a pardon.

Somebody who is seeking a pardon, who broke a law in Canada and served their time, in whatever fashion that represented, and wants to get that removed from their record, cannot do so permanently. However, a pardon allows them as part of the rehabilitation process, to receive a pardon that is not a part of their immediately available criminal record. If that person committed an offence that was violently sexual in nature, and there was a check done to see if that person can work with a vulnerable part of the population, for example, children, then that record would actually show up even though there was a pardon. Expungement is very different from a pardon in that regard.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Mr. Speaker, I would like to ask my hon. colleague if he could clarify section 23(1) of this act. It speaks to the schedule:

Subject to the conditions referred to in subsection (2), the Governor in Council may, by order, add to the schedule any item or portion of an item.

I do not exactly know the reference with which that might apply to this. Is it for other offences or other types of offences that might occur down the road? Are we only dealing with this particular issue on this particular genre of offence, and it does not apply to any other offences in the years to come, should we decide to have something else that we decide to deal with?

[Mark Holland, Liberal, Ajax, ON]

Mr. Speaker, the idea here is expungement should be the tool that is used exclusively for righting historic wrongs, for crimes that should never have been considered crimes, that were in fact violations of people's fundamental rights.

There are three specific types of crimes that are enumerated in this bill, which I referenced earlier: anal intercourse, buggery, and gross indecency. However, it does provide for the opportunity to expand that list, if it is determined at a future date that other such crimes existed that represented a historic wrong, in other words should never have been considered crimes and were a violation of people's human rights.

Again, we want to keep expungement narrowly limited to that specific type of application.

[The Deputy Speaker, Conservative, Bruce Stanton]

We are out of time. Perhaps in the next round of questions and comments, the hon. member might be able to make his intervention at that time.

Resuming debate. The hon. member for Elgin—Middlesex—London.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Mr. Speaker, I am pleased to rise in the House today to support Bill C-66, an act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other acts.

Today I will be short and sweet, because I believe that in this House we do have consensus, where all parties do agree that it is important to move forward on this.

As I have noted prior, I had the opportunity to speak to Canadians from coast to coast to coast who are part of the LGBTQ2 community. More specifically, I held consultations with several groups of individuals regarding the national apology. From all of the conversations and research that I did, one of the key requests from this community throughout this process was the request to expunge the records of Canadians who had been charged under the Criminal Code. The request to destroy and remove these judicial records would provide individuals the freedom of having their criminal records that have been looming over them for activities gone.

I had the opportunity to review this bill with the members for Charlesbourg—Haute-Saint-Charles and St. Albert—Edmonton, following its tabling. Like any bill, there will be questions on specific sections but, overall, I support the principle of this bill. When reviewing the bill, section 25 specifically outlines the eligibility for an applicant, including the type of conviction, consent, and age requirements, things that I believe are all very important. I feel that this perfectly in line and safeguards Canadians from being eligible for offences that are outside of this realm.

The proposed schedule of offences would impact all Canadians, including members of the LGBTQ2 community. This is extremely important as it covers the particulars of the offences. For Canadians who do not have a criminal record, it is hard to realize some of the negative impacts that it has on individuals in many different types of circumstances. Criminal records can have an overwhelmingly negative impact on employment opportunities and opportunities for career advancement. For travel to the United States or for immigration purposes, Canadians with a criminal record can be banned from entering many countries.

Now take into consideration the group of Canadians that this legislation is targeting are no longer viewed as guilty of criminal offences. How unfair would it be to allow them to still have a criminal record, when we know that this is not a crime? It is totally life changing, and I believe that this legislation is doing its part.

As I indicated, I have had the opportunity to speak to many Canadians on this issue. From all of my consultations, every group and individual made the request to have the records of these criminal convictions expunged. It is truly obvious what needs to be done here.

As a Parliament, I believe it is extremely important that the legislation we have in front of us is done. It gives Canadians a way to move forward. I fully support Bill C-66 and look forward to seeing this legislation passed in order to see those who do not deserve these criminal records finally have some sort of peace. It is one step at a time, and I believe we are going in the right direction.

[Mark Holland, Liberal, Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, I want to thank the member opposite for the work she has been doing to engage Canadians. I also want to thank her for her unequivocal support and for helping us move this forward in an expedited way. It is really only because of all-party co-operation that we have been able to get this done so quickly, which is particularly appreciated, given that there is so much happening as we wrap up and head toward the holidays.

I wonder if the member has any thoughts on the expungement and how this might impact some of the people she has been speaking to and what it might mean to them. Does she have any stories from those consultations that might help illuminate the power of what we are doing today?

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Mr. Speaker, any viewers will probably find that Parliament is not going to be as exciting today as they want it to be, because we are all in agreement here. The expungement of these records opens up freedoms, the freedom for one to travel or the freedom to have a job. For instance, people are doing things that are not seen as crimes, but when they apply for a job, the record shows that they have a criminal record. Something that has been pardoned in the past still shows up as a criminal record, so this expungement is extremely important.

I am not a legal guru, but I understand the impact of this bill. We have talked to people who say that they cannot get a job because they have a criminal record for this, or they cannot take their kids to Disney World. We have to recognize that there are many families that just want to travel across the border. It may be for work or it may be for recreation, but they are excluded from travel. This would just give them another step towards having a life like every other Canadian, an equal life for all.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Mr. Speaker, I am very happy to hear that my colleague is supporting this bill. As she and everyone else here knows, the NDP has been fighting for this cause for many years. We are happy that this bill has come forward at last, and we will obviously be supporting it. We are also pressing to have this bill passed expeditiously so that it can go through the House before we rise for the Christmas break.

I know that the member is supporting this bill. Will the Conservatives be supporting it, and will they support the expeditious passing of the bill so that this can get done and help these people?