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.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair.

Thank you for sticking with us for this second hour.

For Bill C-66, are confirmations provided to individuals who apply through the process that was created in that legislation, confirmations that their records have been expunged?

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

It seems clear, Minister, that we disagree on this.

With the minute and a half I have left, I just want to go to your comments. It almost sounded like the implication was that because you don't know what a schedule II possession offence is, that's why it was better to have the applicants apply rather than doing it automatically. It almost seems like the burden's being put, again, on these individuals.

Just in that context, when you look at Bill C-66, to return to that other issue, seven people out of 9,000 have actually applied. Is there not a recognition on the government's part that it would just be better to make it automatic? It's pretty apparent that Canadians who are already marginalized might not be in a position to take advantage of this, as was the case in San Francisco, where only 23 of 9,400 people took advantage of their opportunity to seek pardons for cannabis possession.

Expungement of Certain Cannabis-related Convictions Act

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I would like to begin by thanking my colleague from Trois-Rivières. He gave a passionate speech, although it did come a little early.

I want to thank my colleague as well, the member for Lanark—Frontenac—Kingston, for his very passionate and clear support for my initiative. I am grateful to him for the clarity and for demonstrating the very obvious distinction that the government seems to wish to gloss over between what are now called record suspensions or pardons, and the notion of expungement, which, of course, is at the heart of my bill.

As a private member's bill, members would know that I was not able to talk about the automatic expungement, because that would cost money and private members' bills are not allowed to do that. Therefore, I was left with an application process of my own. What troubles me is that the government is trying to conflate expungement and pardon as if there were no difference, and to make an argument, frankly a legally baseless argument, that expungement is somehow to be reserved, as the Liberals have chosen to do with Bill C-66, for activities that violate the charter. First of all, as I pointed out in my speech on Bill C-93 on Monday, going through a number of scholars like Professor Roach, Professor Berger and others, there is absolutely no distinction for that. More importantly, the government itself continues to acknowledge that it has no choice; it is from government records.

However, this law, which has been around since 1922, the prohibition on cannabis, has had a disproportionate impact on indigenous people and black people in particular. The government admits that, yet the Liberals are content to stand here six months after they brought in the law that made cannabis legal, in essentially the dying days of Parliament, to bring forward a half measure that likely will not get on the order book. It is something they can check off, I presume, during the campaign. Whether it gets through the Senate, the House and all of its committees before then, I have my doubts. Nevertheless, they have chosen to do this. This has an impact on real people's lives. The government acknowledges that, but the Liberals are prepared nevertheless to do this application process.

The Liberals pejoratively say that I recommended there be an army of summer students. I did no such thing. There are ways to deal with it. If it costs money and it is inconvenient, let us talk about what it means to that black person in Toronto who cannot get his or her foot on the social ladder and has to perhaps be on social assistance, or that indigenous person who cannot rent an apartment because they have a criminal record. The government will say that the Canadian Human Rights Act has an answer for that, but that is not living in the real world, as far as I can tell. It is disappointing.

With regard to the government's initiative, the welcome that it is waiving the fees and making it faster, I would characterize it as a good first step. However, it is too little and it is certainly too late. It is disappointing that we here on this, and it is disappointing that the government has not done the full measure. I was hoping that my bill could go to committee along with Bill C-93, and people of goodwill could try to find a solution which would involve expungement, and make the changes that even the government admits are necessary. However, this measure simply will not do the job.

Criminal Records Act

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I would like to explain at the outset that the NDP will oppose this legislation. Over the next 20 minutes that I have available, I hope to explain why record suspension is not the way to go, and record expungement, which I will describe, is the way to go. Record expungement for simple possession is the basis of my private member's bill, Bill C-415, which will be up for second reading debate in the chamber on Thursday.

I have risen on previous occasions in this place to call Bill C-93 a half-baked measure, and I am still of that opinion. Let me explain: It is too little and it is too late.

It is too little, because record suspension is just that, putting a criminal record aside where it could potentially be used again against the individual. It ignores the historical injustice, the disproportionate impact of cannabis possession offences on marginalized Canadians, on blacks and particularly on indigenous people.

It is too late, because it is almost six months since October when we had the historic legalization of possession of cannabis. Here we are, almost at the end of this parliamentary session, starting second reading debate on the bill. It has to go before committee. It has to go to the Senate. It has to go before Senate committees. I am anxious that this will not be law in Canada, as it will die on the Order Paper until the next Parliament addresses that.

It is especially disappointing because the Liberals have had years to do this. Their excuse was to wait until possession was legal on October 17, 2018. Now we are almost six months later, in the dying days of this Parliament, and suddenly talking about it.

I hope that cynicism is not warranted. I hope there is goodwill on the part of the government to fix the bill and move it forward expeditiously. However, I have my doubts.

My private member's bill, which is the counter to this piece of legislation, would require an application process for expungement. In an ideal world, my bill would have had automatic expungement, which is the case in Delaware and California, where officials sweep the records, find out whether a person has a record, for simple possession in effect, and if so, the record is deemed never to have existed. It is gone. It is zapped from the system.

This legislation would require an application. My bill does too, but that is because, as the House well knows, it is a private member's bill, and due to a technicality called the royal recommendation, I could not ask the government to expend money. I was not able to do what has been done south of the border with automatic expungement. That would apply universally and automatically and benefit, disproportionately, indigenous and racialized Canadians.

Let us just stand back from this. We have an activity which is perfectly legal now, but for which hundreds of thousands of people, perhaps that high, have a record for past consumption of cannabis, possession of cannabis, when it was illegal, and now they cannot get on with their lives.

Why does that matter? It matters because blacks cannot rent apartments because they have a criminal record and are on the bottom of the list in a tight housing market. As I will explain later, there are way more people in Halifax who were charged with a cannabis offence and have a record for cannabis than the non-black population.

Believe it or not, it is most glaring in Regina, Saskatchewan. This is government data; this is not me. This is from records disclosed under access to information. An indigenous person in Regina is nine times more likely to have a record for cannabis possession than a non-indigenous person. A black individual is five times more likely in Halifax and three times more likely in Toronto to have the same. An indigenous person in Vancouver is seven times more likely to have a cannabis record. This matters. We would call this law, adverse effects discrimination. We would call this constructive discrimination.

That is why it is so galling that the government wants to bring in a half-baked measure in Bill C-93, rather than doing what is done in California. In San Francisco, there is an automatic intelligence system that simply sweeps the records to make them disappear for those who have a possession of cannabis offence on their record.

Let us contrast this with what the government wants to do today. To its credit, it wants to bring in a bill that says people no longer have to pay $631 for having a criminal record suspended, which is what Mr. Harper introduced, and they no longer have to wait for five years. I congratulate the government for that minor step in the right direction.

In the U.S., a person's record is automatically expunged in the states I have mentioned. These records are deemed not to exist. This matters because it allows people who are asked by a landlord whether they have a criminal record for anything to tell that landlord they do not. When asked by an employer if they have a criminal record, people who have only a cannabis possession charge from several years ago in their background can say they do not, because under expungement, it is deemed not to exist.

The government tells us not to worry and that we do not understand, because there is a human rights statute federally and in all the provinces that says people cannot face discrimination on the grounds that they have a criminal record for which a pardon has been granted. Tell that to an inner city landlord in downtown Halifax or to an inner city employer or small business operator in downtown Vancouver.

It is ludicrous. Why would the government not do the right thing, getting this all done at the same time and done properly, rather than bringing in this half-baked measure? It is too little, too late, which I am sad to say is my theme.

I am not the only one with this opinion. I am pleased to say that the Liberal member of Parliament for Beaches—East York acknowledges the limitations of the bill. He said:

Only full amnesty recognizes the disproportionate impact of cannabis prohibition on people of colour and the fact that cannabis should never have been criminalized in the first place.

Our government’s solution is better than nothing, but it’s not enough to be better than nothing when we have an opportunity to make historic injustices right.

I am quoting a Liberal member, not someone who has an axe to grind, if you will, on this issue. This is a Liberal who realizes we can do so much better.

One of the arguments the Liberals have used to explain why we cannot have expungement is that many people would be affected and it would cost so much money and take so much time. However, that is not true anymore, because we have new data suggesting that only some 10,000 people would be positively affected by the bill. That is not a very large number. Why can we not expunge their records rather than simply giving them this record suspension, after which records move from one filing cabinet to another and can come back and bite people later in a subsequent event if the state deems that they have committed another crime?

What about a crimes such as failure to appear? These are called administration of justice offences. They are not like the actual offence of cannabis possession. They occur when people do not pay a fine or do not show up in court. In these situations the criminal justice system is continually on a person's back, even though the root of it all was a cannabis possession charge.

I have been advised that indigenous women are sometimes affected down the road in this way when they have custody issues with their children. This occurs not because of the cannabis offence but because of the other matters on their record that have resulted from that. It is ludicrous.

The government says our most important relationship is with indigenous people. Here it could make a tiny but critically important change in the lives of so many. Why would it let this opportunity pass to expunge the records of people so they could say they have no criminal record, allowing them to get their foot on the social ladder in order to get employment, housing and the like? I do not understand the government's reluctance in this context.

Professor Kent Roach is one of Canada's leading criminal law specialists. Recently, in the Criminal Law Quarterly, he wrote, “The government's approach to cannabis convictions in the wake of legalization is even more problematic than the expungement act,” which is another bill I will come to.

He continued, “It has announced plans to allow the National Parole Board to grant pardons under the Criminal Records Act. This again requires case-by-case applications. This places challenges on the most disadvantaged people who have been convicted of cannabis possession.”

He goes on, “By not relying on expungement, the government's approach leaves applicants vulnerable to records of convictions and arrest being retained by the RCMP and other federal departments and to questions from prospective employers and landlords about whether they ever had a criminal conviction. It falls behind states such as California and Delaware in terms of reform.”

He then goes on and says about my bill that it “...takes a better approach by proposing to expunge cannabis convictions including the destruction of records of convictions.”

I am not here to score political points. I am not even running again in the next election. I am fully convinced that automatic expungement is the way to go. It is what people deserve. I implore the government to amend this bill and do the right thing by so many people who are affected, whose lives are on hold until we get this right.

Record suspension simply removes criminal records from the main database, CPIC, the Canadian Police Information Centre, and puts the data somewhere else, where it can be used prejudicially later and potentially shared with other departments, thereby having a negative effect.

Expungement means those records disappear for all purposes and for all time. A record suspension or pardon indicates the government is forgiving or excusing individuals for criminal behaviour, and that is all; expungement acknowledges it was wrong to criminalize it in the first place.

At this time, let me give the House the other government excuse for not doing the right thing.

It brought in, to its credit, Bill C-66, which was called the Expungement of Historically Unjust Convictions Act. That bill dealt with same-sex sexual activity, which is no longer criminalized but was in the past. The government said it was going to deem those offences to no longer be on a person's record—gone.

I have two things to say about that.

Number one is that since October, from the last statistics, do members know how many people have even bothered to apply, of the 9,000 eligible? It was seven. That hardly gives confidence that this application process is going to make a difference.

Number two is that the government says, “Oh, member for Victoria, do you know what we will do? We will say that this is to be reserved for things that are constitutionally over the line, such as same-sex sexual activity.”

There is no principled reason for that smokescreen. I have talked to criminal law specialists and constitutional specialists across the country who say that this argument is not valid. Second, even if it were valid, which it is not, what about the constructive discrimination I just talked about, the adverse effects discrimination, whereby the policy and application affect blacks and indigenous people dramatically more than others? What about that?

Not doing the right thing for cannabis expungement as for same-sex sexual activity, which the government is prepared to expunge, makes no sense at all. It is another Liberal smokescreen.

I am not here to score political points; I am just trying to persuade the Liberals to do the right thing. Why would they not do it? That is what is so complicated for me to understand.

The NDP has been calling for this measure for years. I will not go through the whole background of it, but there are deficiencies in addition in the bill that is before us today. The Parole Board does not have the resources to do the job, so there are going to be even further backlogs for other applications from people seeking pardons. There is a whole industry, sadly, out there to help people get rid of their criminal records. If members go on the Internet, they will see everybody who wants to help if they give them a few hundred bucks.

The forms are complicated. Members might not think they are, but for a poor person with little education who is living in the inner city, this measure would impose another burden, and I do not understand why, when our friends south of the border figured it out much more readily.

There are also eligibility gaps in Bill C-93. Only those people convicted of simple possession are eligible, meaning anyone with prior record suspensions of crimes related to the simple possession charges will not be able to use this process. I gave the example of failure to appear or not paying the fine or the like. If there is another offence on the record, then they are facing an inability to apply.

Someone pointed out that if a person has a summary conviction offence and then four years down has another cannabis offence, there may be a total wait of nine years to apply under this bill. I do not believe that was intended, but it is a function of the drafting of the bill, according to experts I have consulted. That is problematic.

The Liberals have had six months since they brought in legalization to do this. This bill is maybe four and a half or five pages in English, so how on earth did it take that long? The elephant laboured and brought forth a mouse.

Bill C-75, which was 302 pages, was before the justice committee, and it rammed that one through. This bill is five pages in English and maybe nine pages in total with English and French. It took the Liberals that long to produce this tiny bill, this weak bill. Presumably they can just check it off on the list that another promise was kept, except if the bill dies on the Order Paper, as most people are anticipating.

This is a real problem. This is an opportunity for the government. My hope is that if the private member's bill that I have before Parliament for debate on Thursday goes to the public safety committee at the same time as this bill, perhaps there will be a way in which some of the provisions that I have suggested for expungement could be brought into the bill that is before us and we could get it right for the victims as they are.

It is not just me saying this. The Prime Minister has been quoted as follows: “...there is a disproportionate representation of young people, from minorities and racialized communities, who are saddled with criminal convictions for simple possession as a significant further challenge to success in the job market....” He seems to get it.

The statistics that the government has produced under access to information confirm what I am saying. I am not making up those shocking statistics about overrepresentation of blacks and, particularly, indigenous people. The Prime Minister gets the consequences, so why would the Liberals not do it right? I do not understand.

Professor Doob, the famous criminology professor at the University of Toronto, stated:

There is no justification for forcing those who were convicted to live with a criminal record for behaviour that will soon not be criminal. A procedure for dealing with the problem has been devised by the current government. They should ensure that relevant drug records are expunged for the thousands of Canadians who have them.

Senator Pate, who has been very powerful on this issue in the other place, has made similar arguments, and I hope that those points are taken into account by the Liberals opposite.

I have been working with a very talented lawyer in Toronto, Annamaria Enenajor, who is the director of Campaign for Cannabis Amnesty. She is a prominent lawyer in Toronto and clerked for the Chief Justice of the Supreme Court of Canada. She is volunteering for this important cause and she states:

...the government...leaves the impression that restrictions exist on the government's ability to issue expungements for the offense of simple cannabis possession that are beyond its control. This is false. There is nothing in Canadian law that prohibits our government from issuing expungements for offenses that, in their application, unjustly targeted racialized and indigenous communities. It simply chooses not to. This is a policy decision.

That is the nub of the argument. Let us do it right.

There may be some good arguments in theory. I talked about the theoretical ability to apply the human rights legislation when people have been given pardons and so on, but it does not work in the real world. We have an absolute dearth of money for legal aid, and legal aid rarely covers human rights complaints if one has been discriminated against because of one's record. Theoretically, I guess, the Liberals could hang their hat on that, but they sure have not visited many inner cities if they think that is a viable argument in practice. Many small businesses and landlords draft their own applications and may not be aware of human rights legislation.

We have a historic opportunity in the dying days of this Parliament to do it right. Let us expunge criminal records for small quantity cannabis possession and help those thousands of Canadians who need a head start and a chance to get their foot on the rung in the social ladder. Let us do the right thing for those people as soon as we can.

Expungement of Certain Cannabis-related Convictions Act

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Madam Speaker, it is indeed a great pleasure to rise today to debate Bill C-415 by my hon. colleague and friend from Victoria. We both hail from Vancouver Island and I really admire the work he has put into this bill.

It is not very often that one gets to debate a private member's bill in this place that would have such significance in how it would change how we approach criminal law and acknowledge past wrongs. One other private member's bill that I can reference, which I think had a major impact, was Bill S-201, brought in by Senator James Cowan to recognize genetic non-discrimination. The Liberal cabinet was opposed to that bill, but virtually the entire Liberal back bench rose and disagreed with the cabinet and voted in favour of the bill. With the combination of the Liberal back bench, the Conservatives and the New Democrats, we passed that bill and it received royal assent.

I very much implore my Liberal colleagues to look at what this bill attempts to do. I know that some have raised concerns about the bill. They may not think it is perfect, but at second reading stage, we are acknowledging the intent of the bill. I think that if they looked into their hearts, they would find it worthy to be sent to the Standing Committee on Justice and Human Rights, where we could hear from departmental officials and expert witnesses, many of whom the member for Victoria has already quoted. That is where we can look at the language and technical jargon of the bill to see if some of the concerns can be addressed. However, let us at least send this bill to committee. I think this is a very important moment.

Last year, I had the pleasure of giving the NDP's response at second reading to Bill C-45, in my capacity as the justice critic then. I acknowledged that the bill was not perfect and there was a lot of fulsome debate on its merits. My colleague, the member for Vancouver Kingsway said it right, that Bill C-45 did not really legalize cannabis; it just made it less illegal. There are some strict limits that if someone steps outside of, the full weight of the law will still come down on them.

Nevertheless, I think that even my Conservative colleagues can realize that there has been a sea change in public opinion in Canada with regard to cannabis possession. The public has realized that the continued criminalized approach to cannabis possession is wrong. Far too many people suffered under it and, in fact, the continuation of a criminalized approach would actually cause more harm than the use of the drug itself. They have recognized that.

When looking at many of the arguments that Liberal members made in support of Bill C-45, not the least of which was by the Minister of Justice, one of the reasons they cited was that thousands of Canadians end up with criminal records for a non-violent minor cannabis offence each year. I will quote the minister. In her second reading speech on Bill C-45, the Minister of Justice said:

A majority of Canadians no longer believe that simple possession of small amounts of cannabis should be subject to harsh criminal sanctions, which can have lifelong impacts for individuals and take up precious resources in our criminal justice system. Our government agrees that there is a better approach.

I could not agree more with what the Minister of Justice said last year during that second reading debate on this.

There are roughly 500,000 Canadians who have criminal records for cannabis possession. That means that if one were to take a room of 60 people, one person in that room would probably have have a record for cannabis possession. We acknowledge that that has far-reaching consequences. We know that it has affected marginalized and racialized populations disproportionately more than average Caucasian Canadians. That is borne out by the evidence collected in each province and many of our major cities.

Another big issue is that the government came to power with a promise to legalize cannabis. That promise was adopted at the 2012 Liberal policy convention. Therefore, I think that the Canadian public has known for quite some time that this was coming.

As my friend the member for St. Albert—Edmonton said, elections have consequences, and the Liberal government did fulfill that one promise. However, I have an issue with the length of time that it took. We needed the task force to present its report. We then finally had Bill C-45 introduced in April 2017. It received royal assent and came into force only on October 17 of this year. There was plenty of time for the Liberal government to deliberate on the subject and on the consequences that criminal possession has on people's lives. We have this strange binary situation where a person who possessed cannabis on October 16 received a criminal record, but a person who had it on October 17 was perfectly fine.

It is quite amazing what has happened in this country. One can now possess up to 30 grams in public. People can now grow their own plants. Even though there are still very real consequences with the over-consumption of cannabis and whether it is getting into the hands of children, I think we can very much agree that the continued criminal approach to the issue was wrong. It was using up precious resources and it was in no way effectively dealing with the problem.

When we look at the intent of Bill C-415, I very much admire the word “expungement”, because it has an air of permanence about it. It is very much different from a record suspension. As the member for Victoria very clearly laid out, a record suspension is simply setting aside the record. It does not protect the individual in any way from having that reapplied sometime in the future. Indeed, the individual would very much have to prove that he or she is worthy of that happening. However, an expungement allows an individual to truthfully answer the question of whether the individual has a criminal record that he or she does not have one, because expungement makes it as if it never happened in the first place.

We can look at the statistics, specifically with reference to indigenous people in Canada. In Vancouver, indigenous people were seven times more likely than white people to be arrested. In Regina, it was as high as nine times. If we are trying to address a historical wrong, a very real case of social injustice, I think expungement is absolutely the way we should be going.

The Liberals have raised concerns. They have said that they wished to reserve expungement for activities that have been found to be unconstitutional. The parliamentary secretary made reference to Bill C-66, which, absolutely, every member in the House was in support of. However, I have to repeat that the member for Victoria clearly outlined that reserving expungement for activities that have been found to be unconstitutional is simply an arbitrary distinction and has no legal or principled foundation. This is basically a government making up its own rules. I would ask the Liberals to point to any specific case law that underlies their arguments for this, because, trust me, they will not be able to find it.

The Liberals would also like to say that pardoning people will work, because they are going to make pardons free and immediate. I appreciate the fact that the application process will be removed and that the fee will be waived, but right now, the only legislation that actually exists on the books to address this issue, at the end of 2018, three years into the Liberal government's mandate, is Bill C-415 from the member for Victoria.

The Liberals also agree that the process needs to be fair, but they have other doubts about the bill. The bill has been consulted on widely with academics and members of the legal community. I again appeal to my Liberal colleagues to not throw the baby out with the bathwater. If they have difficulties with the technical aspects of this bill, with the language, surely they can understand the intent behind the bill and surely they can find it within their hearts to send the bill to the Standing Committee on Justice and Human Rights where we can make the necessary amendments so that it is reported back to the House in a form they can support.

I look forward to voting on this bill. Again, I congratulate my friend and colleague, the member for Victoria, for bringing in this fantastic piece of legislation.

[Peter Schiefke, Parliamentary Secretary to the Prime Minister (Youth) and to the Minister of Border Security and Organized Crime Reduction, Lib.]

Madam Speaker, it is a pleasure to rise today to speak to Bill C-415, an act to establish a procedure for expunging certain cannabis-related convictions.

First, I would like to thank the member for Victoria for his hard work and strong advocacy on this issue. I know he has spoken numerous times with the Minister of Border Security and Organized Crime Reduction about this issue. It is something we very much appreciate.

It is clear that the member shares our conviction that some changes need to be made with a new cannabis control regime in place. For nearly a century, the criminal prohibition of cannabis failed to protect youth and led to the highest rates of cannabis use in the world amongst our kids. It also led to billions of dollars in profit for organized crime and created an unhealthy and unsafe situation in all of our communities.

That is why we replaced the criminal prohibition with a far more effective and proportional system of comprehensive cannabis control. While there are no turnkey solutions to righting the wrongs that resulted from that regime, there are now steps we can take to address them.

Bill C-415 would create a method to expunge cannabis possession convictions, regardless of quantity, that are no longer an offence under the Cannabis Act. It proposes a no-charge, application-based process that would allow applicants to provide sworn statements to prove their eligibility. It does not, however, require them to prove their attempts to obtain official supporting documents in doing so.

This bill also proposes that expungement must be granted, so long as the review by the Parole Board of Canada does not reveal any evidence that the activity in question was prohibited under the Controlled Drugs and Substances Act or any other act of Parliament.

The approach proposed in Bill C-415 is similar in form to another bill this House passed not long ago, but the nature of the convictions proposed for expungement is quite different. Bill C-66, Expungement of Historically Unjust Convictions Act, received royal assent in June of this year. That legislation was introduced on the occasion of the historic apology to the LGBTQ2 community for decades of state-sponsored systemic discrimination and oppression.

It put in place a new process to permanently destroy records of convictions for offences involving consensual activity between same-sex partners that would be lawful today. The government passed that law so that expungement could be available as a tool to correct a profound historical injustice, where the offence had been ruled unconstitutional or contrary to the Canadian Human Rights Code.

However, there are substantive differences between the nature of those offences and cannabis possession, which courts have never found to be constitutionally invalid. That said, clearly we agree with the member for Victoria that individuals who have previously acquired criminal records for some possession of cannabis should be allowed to shed the burden and stigma of that record.

That is why, when the Cannabis Act came into force on October 17, the government announced its intent to introduce legislation that, once in force, would allow individuals to apply for a record suspension, as long as they had completed their sentence. The five-year waiting period would be waived, and record suspension would be immediately eligible. Finally, the unfair $631 fee put in place by the Harper Conservatives would also be waived, and record suspension would be available at no cost to the individual.

As my hon. colleague across the way mentioned, these records have had a disproportionate impact on youth from poor communities, racialized communities and, of course, indigenous communities. Many Canadians also have a criminal record as a result of some youthful indiscretions, and now lead otherwise exemplary lives.

This proposed measure would make affordable record suspensions available to those individuals. It would give them the opportunity to remove the stigma and burden on their lives that results from a criminal record.

Here, I would point out that thanks to the motion by the member for Saint John—Rothesay, the Standing Committee on Public Safety and National Security has been instructed to undertake a study of the record suspension program formerly known as “pardons”.

The idea behind this study would be, first, to examine the impact of a record suspension to help those with a criminal record reintegrate back into society; second, to examine the impact of criminal record suspension fees and additional costs associated with the application process on low-income applicants; and third, to identify appropriate changes to fees and service standards for record suspension, and to identify improvements to better support applicants for a criminal record suspension.

The committee would be able to study improvements that could be made to the process for record suspensions. However, I am pleased to note that the government's announcement of intent with respect to the legislation on record suspensions for some possession of cannabis reflects the desire to reduce the kinds of barriers reflected in that motion.

Protecting Canadians is our number one concern. We do that by implementing evidence-based criminal justice policies that are proven to support rehabilitation, prevent crime and victimization, and keep our citizens and communities safe. The government's announced intent to introduce new legislation is in keeping with that principle.

Aside from the differences in the proposed approaches, I would like to also point out that Bill C-415 is flawed as it is currently written. Under the bill, the acceptance of a sworn statement to prove eligibility without having to demonstrate attempts to obtain official documents would risk that an expungement could be ordered and records destroyed for ineligible individuals, such as those who have been convicted of possession of far more dangerous uncontrolled substances, such as cocaine.

As currently written, indeed most individuals would not be eligible to apply, as the bill would require that the activity be legal today. All cannabis obtained prior to the coming into force of the Cannabis Act was illicitly possessed, and the possession of illicitly obtained cannabis remains an offence today.

I am grateful that many members in this House feel that people who have been previously convicted for possession of cannabis should be allowed to participate meaningfully in society. They should have access to good, stable jobs. They should have access to housing and education and the ability to participate in the community. For far too long, many thousands of Canadians have faced barriers to those necessities simply for having possessed cannabis. However, values have shifted, and we recognize the failure of prohibition. It has now been over a month since we have had legalized and regulated cannabis, and we see the positive impact of that action.

What we do now to make things as fair as possible for Canadians must be done carefully and diligently. I very much look forward to taking the next steps to help people turn their lives around. Once again, I would like to thank the member opposite for his views on how we can do so. I am also thankful for the opportunity to address this issue today.

[Murray Rankin, NDP, Victoria, BC]

moved that Bill C-415, An Act to establish a procedure for expunging certain cannabis-related convictions, be read the second time and referred to a committee.

Madam Speaker, it is an honour to rise in the House this afternoon to present my private member's bill, Bill C-415. My bill would have the effect of expunging or erasing criminal records for the half million Canadians who have records for the possession of small quantities of cannabis, which became a perfectly legal activity in October of this year.

This is a matter of fundamental justice and I urge all members to support this initiative. I urge government members to keep an open mind and to study the bill and amend it so we can move it forward as quickly and effectively as possible.

As far back as 2012, the Liberal Party passed resolution No. 117 on cannabis legalization and it is curious that it used the words of elimination of all criminal records for simple possession. I am pleased that the Liberal Party agrees with me that expungement and not merely record suspension is what is required in this circumstance.

According to a report commissioned by the Department of Public Safety, fully 86% of those surveyed agreed that completely erasing criminal records for minor offences, particularly cannabis possession, was the right thing to do. Judging by the enormous outburst of editorial support that I am pleased to have received from coast to coast, Canadians get it. They support this initiative because they are fair-minded people who recognize the unfairness inherent in continuing to burden people with the effects of a criminal record for something that is now legal.

I stood yesterday in the House with a prominent aboriginal leader from British Columbia, with people from the John Howard Society and with Senator Pate, the former executive director of the Elizabeth Fry Society. They all called on the government to get with this, expunge records and not to rely, as I will explain why, on merely criminal record suspension in this context.

I have three fundamental arguments in the short time available that I would like to make. First, I want to challenge the government's assertion that it will be bringing on immediate pardons. The word “immediate” means now and I will explain why that is simply not possible. Second, I want to address the government's apparent argument that expungement is somehow reserved for only one category of past historical injustices and not things like this. Only record suspensions apparently, in the Liberals' mind, are appropriate in this context. Third, it is important to tell Canadians about how the unjust application of cannabis laws in our country has happened. I think it is undeniable that there has been an injustice.

On the first point about the timing, the government has had several years to address this signature initiative on cannabis legislation. Other jurisdictions like California and Vermont, when they brought in their laws, brought this piece in at the same time and automatically expunged the records for people with convictions for a small quantity of cannabis. The Liberals chose not to do that. They said they should wait for record suspensions, sometimes they called them pardons, and that will happen sometime soon, maybe with legislation introduced, I presume, in the spring.

Canadians know there will be an election in October. They know any initiative has to pass through both Houses and be proclaimed in law, so it is likely that this will not take place until 2020, if my arithmetic is right. When Canadians hear the word “immediate”, they think of something different. I would urge the Liberals to work with my bill and make it better so we can get on with the task that should have been commenced when we brought in legalization in the first place.

The second argument is the arbitrary distinction between expungement reserved for something called historical injustices and pardons for something else. I do not know who is giving legal advice to the Liberals on this point. I have had the good fortune of getting opinions from Benjamin Berger, Professor of Law at Osgoode Hall, and noted constitutional lawyer Professor Kent Roach at the University of Toronto. They see absolutely no distinction in law. I see none in public policy for what the government seems to be insisting upon.

Let me quote from a leading Toronto criminal lawyer, Annamaria Enenajor of the Campaign for Cannabis Amnesty. She said, “the government...leaves the impression that restrictions exist on the government's ability to issue expungements for the offense of simple cannabis possession that are beyond its control. This is false. There is nothing in Canadian law that prohibits our government from issuing expungements for offenses that, in their application, unjustly targeted racialized and indigenous communities. It simply chooses not to. This is a policy decision.”

Professor Kent Roach says that “The charter is the minimum not the maximum in terms of our sense of justice. The government's proposed pardon scheme also reveals larger problems with our pardon system which, among other drawbacks, is conditional on future good behaviour.”

There is no distinction possible, although the government wishes to make it. I urge it to keep an open mind so we can do what is right for Canadians.

That takes me to my third point. The application of this law is a historic initiative to address a historical injustice. It is a fact, and I commend the government for acknowledging that black and indigenous people across this country have been disproportionately burdened with criminal records for possessing small quantities of cannabis. That prevents these people, who are often already more marginalized and impoverished than other citizens, from getting their foot on the social ladder. Why? It is because they now have a record. It means they are last in line when they want to rent an apartment. They are last in line when they want to get a job and have to answer “yes” about having a criminal record.

If that record were expunged, as my bill would do, they could honestly answer that they do not have a criminal record. It would be deemed in law that they do not such a record. Imagine how many thousands of impoverished Canadians we could assist by doing the right thing.

Jaywalking is not an offence under the charter. However, if nine out of 10 people we go after for jaywalking ho are black or indigenous, then it is a charter violation. Again, I commend the government for acknowledging this data as being valid. If someone is indigenous in Regina, they are nine times more likely to be charged and have a record for cannabis than non-indigenous people; and seven times more likely in Vancouver; and if someone is black in Halifax, they are five times more likely to be charged and have a record; and three times more likely if they live in Toronto. This is wrong. This is Canada. We should fix that, and let these people get on with their lives.

I want to address head-on the government's argument about record suspensions. It chooses to call it “pardons”. It does not do the job. What is the difference between a pardon and expungement? An expunged record is erased; it is completely destroyed. Under my bill, the offences would be deemed in law to have never happened. Therefore, a person whose record has been expunged could truthfully say on a job application that they do not have a criminal record. That makes all the difference.

What about a pardon? A pardon merely reclassifies the record. It may still be released, and even revoked, in the future. Most importantly, with a pardon, an individual can still face those obstacles I talked about. Furthermore, a pardon talks about forgiving, by implication, and not expungement, which would be an acknowledgement of the historical injustice in how cannabis laws have been applied in our country.

For a long time, cannabis amnesty has been a policy of the NDP. Since 2004, we have been calling for amnesty for people with records for cannabis possession. My colleague, the member for Vancouver Kingsway, who has done excellent work on this file, introduced a motion in the House asking the government to immediately pardon all criminal records for simple possession. The government said no.

Let me go to the argument I have heard the government use as recently as this morning. It is wrong. When a landlord or employer asks a person if they have a record, the question they are supposed to ask is whether they have ever been convicted for a criminal offence for which a pardon has not been granted. Now, the government says that if there has been a violation of that requirement, they can go to the human rights branch or the human rights tribunal in their province. I do not know whether the government has dealt with people from the inner city.

I used to do legal aid in downtown Toronto. People who are illiterate and do not speak English have enough trouble already. Do we think they are going to get lawyers, with legal aid in this world being so scarce, and take this to the human rights branch? I do not really think so and neither does Samantha McAleese, who is doing her Ph.D. on this very topic at Carleton. She has worked in the inner city of Ottawa with The John Howard Society for many years. She said that many people struggling with criminal records can often have barriers like literacy or language, making these formal complaints to the human rights codes very daunting. She further said that requiring individuals to muster through a complaint process in order to access employment, housing or any other social domain seems quite ridiculous. People with criminal records already face enough barriers in the community and are often already doing everything they can to get by day by day.

Even if the government is right, why would it not go far enough to complete the job with expungement? Even if there is a legal, technical reason for being right, which I urge the government is not the view of the leading criminal and constitutional lawyers I have consulted, why would it not complete the job?

I was so proud to have stood in this House when another expungement initiative took place not long ago: Bill C-66. It was the expungement of what the government termed, and I agree, historically unjust convictions for people convicted in the past for same-sex sexual activity and yet thousands of racialized and marginalized people have also been treated unfairly in the past. I have demonstrated that and the government accepts it.

People have barriers to renting apartments or getting jobs. Mothers from Saskatoon have cried on the phone to me that their child, busted a couple of years for having a couple of joints, cannot coach the soccer team because of these vulnerable people initiatives that require that people not have records for reasons we well understand, dealing with children and so forth. Their lives are also affected by this. After years of injustice, why would the government settle for a process that will not fully relieve the burden of a criminal record? The only way to right the wrong and finally give the half million Canadians a fair chance is expungement, to erase the records for simple possession.

The evidence is pretty clear that the argument about pardons may be good in theory, but in practice, people in the real world do not always ask those precise questions that the government says landlords and employers should be asking, “Have you ever been convicted for a criminal offence for which a pardon has not been granted?”, that magic incantation. In the real world in downtown Ottawa or Toronto, we were told yesterday, people do not always ask those questions and, therefore, people cannot get on with their lives because they have criminal records, they are already the poorest among us often and they are disproportionately indigenous and black Canadians.

It is simply the right thing to do. Why the government did not do it at the time, like other jurisdictions they modelled their legalization on, I do not know, but it is time to do it now and it is time to do it right. A half-measure is not good enough for Canadians. Expungement is the answer. Record suspension does not do the job. Let us get on with it. I urge all members to do the right thing and support my bill in the House.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

I would have to get back to you, Ms. Dabrusin, on the issue of the direct cost analysis. I know that when the previous government raised the fee, first of all to $150 and then to $631, their argument was cost recovery, that the fee increase was necessary to pay for the cost of the service. As to whether it covers the cost of the service on a dollar-for-dollar basis, I will have to check to see exactly what the cost is compared to the revenues that are raised, but as a result of Mr. Long's representation and others, we are looking at the broader question of record suspension.

The previous government changed the name from “pardon” to “record suspension”. They changed the eligibility rules, they changed the waiting periods, and they increased the fee. A number of people have made the argument that those previous decisions should be revisited. We are examining those questions in terms of broad reform with respect to pardons.

In the meantime, we have two specific sets of issues. We've dealt with one in Bill C-66 with respect to the LGBTQ2 community, and now we are seized of the issue of dealing with pardons or record suspensions in relation to the simple possession of cannabis offences. As I indicated in my opening remarks, we'll be coming forward with a very specific proposal on that latter point in the very near future.

[Prof. Robert Leckey]

It's both. I think the chance of fresh charges being laid now is relatively remote. I think it is more concrete in that it's a gap. I don't think the expungement provision goes as far as it was intended to go in Bill C-66. Given that we know that the criminal law can be used in ways we don't imagine, I think you should fix them both, but I also think realistically there's a real problem with the expungement.

[Murray Rankin, NDP, Victoria, BC]

I want to build on what Mr. Boissonnault asked you, Dean Leckey, if I could.

Of course, you haven't done the thorough charter analysis that would be required, but I think you said very clearly that you thought that Justice Canada's charter statement in respect to certain provisions was inadequate. I can't recall if that was with respect to paragraph 268(3)(a) of the Criminal Code, about intersex children and their protection, or if you were talking about paragraph 25(c) of Bill C-66.

I'm going to ask you to repeat that.

[Professor Gary Kinsman, Professor Emeritus of Sociology, Laurentian University, As an Individual]

Thanks, Tom.

Also, thanks to Dean Leckey for the support from McGill for the position that we are putting forward today before this committee.

The act of indecency section of the bawdy house law is linked to a broader legal construction of same-gender sex as indecent in Canadian history. This is also the case with the indecent acts offence. These sections have been and continue to be used to define LGBTQ2S practices as more indecent than similar heterosexual activities, mobilizing discriminatory practices against our communities.

In this presentation, I'm drawing on extensive research and writing that I've done, along with other members of our group, on the regulation and policing of consensual sexual activities in Canada. Since the late 19th century, the offence of indecent acts has been used to arrest LGBTQ2S people in bars, clubs, parks and washrooms. In these situations, the individuals involved have constructed relations of privacy and intimacy for themselves, hidden from view behind trees or bushes, and in cubicles with locked or closed doors, and have not been trying to bother other people. Often they have been entrapped by the police invading their privacy.

Police often used indecent acts instead of gross indecency or buggery charges because it was a lesser offence, and it was easier to prove in court. In the national security purge campaign, which the Prime Minister apologized for against LGBTQ2S people, indecent act was the charge that the RCMP threatened to use to get gay and bisexual men to give up the names of their friends in the public service and the military, so that the police could then purge those individuals.

In Ontario, following the mass resistance to the bath raids in the early 1980s, the police used targeted surveillance, including the use of video surveillance equipment, for indecent act arrests. These occurred in St. Catharines, Welland, Oakville, Oshawa, Mississauga, Guelph, Kitchener-Waterloo, and at the Orillia Opera House. The names of those charged were released by the police to the newspapers, leading a man in St. Catharines to kill himself.

According to the Right to Privacy Committee, 369 men in Toronto were arrested for indecent acts with other men just between July 1982 and April 1983. Thousands of people were unjustly arrested under the indecent acts offence.

Section 60 of Bill C-75 amends parts of the indecent acts provision. This provision must be entirely repealed. This would also allow those unjustly convicted under indecent acts to apply for expungement of their conviction, which they are currently denied under Bill C-66. It is not listed in that bill, and it is still on the books. This committee can actually make an effort to deal with this historically unjust offence.

Vagrancy is also a broad, ill-defined offence. It has historically been used against sex workers, but also to police people's genders and sexual expressions. Those viewed as wearing the clothes and/or otherwise engaging in the self-presentation of the “wrong” gender were charged under this offence. In a 1994 Supreme Court case, vagrancy was declared unconstitutional, and contrary to the charter. Clause 62 of Bill C-75 removes part of the vagrancy law, but like bawdy houses and indecent acts, the offence otherwise remains intact. It must be entirely repealed.

The targeted use of morality provisions and police entrapment have created historical links and ties between the struggles of LGBTQ2S communities and sex workers. We fully support the position that was presented to you by the Canadian Alliance for Sex Work Law Reform.

In 2015, the justice minister declared, “I definitely am committed to reviewing the prostitution laws”. Three years later, it is past time to act. In the broader context of repealing laws criminalizing sex work, we join the call for the repeal of the material benefits and advertising offences, which create unsafe working and living conditions for sex workers and puts sex workers at risk.

There are many other laws that have been used to criminalize the consensual activities of LGBTQ2S people that must be addressed, but are not mentioned in Bill C-75. We certainly hope they will be acted upon soon. These include obscenity laws that have been used against LGBT bookstores and publications and to construct non-conforming sexual representations as more obscene and indecent than similar heterosexual ones.

We also fully support the concerns that the Canadian AIDS/HIV Legal Network and many others have raised regarding the sections of the Criminal Code being used to unjustly criminalize those living with HIV.

In conclusion, we urge you to end the reliance of the Criminal Code on enforcing morality. This is done through various sections that define our sexualities as indecent and criminal. Instead, criminal offenses should be directed where they really need to be, which is on actual violence and actual harassment.

The apology process to our communities demands that the bawdy house laws and indecent act and vagrancy provisions are entirely repealed in Bill C-75. Otherwise, that apology remains flawed and unfulfilled. You have the opportunity to fix this now. We hope you will take it.

Thanks.

[Professor Tom Hooper, Contract Faculty, Law and Society Program, York University, As an Individual]

Thank you for inviting us to speak here today. I'll be sharing my time with Professor Kinsman.

We're here representing a group of gay and lesbian historians, with expertise in the policing of queer sexualities. We're here to follow up on the 10th report of the Senate human rights committee, which called on this government to address archaic laws used to criminalize LGBTQ2 people in Canada. I really mean archaic: indecent acts, vagrancy, bawdy houses. This is like the Antiques Roadshow of the Criminal Code.

Bill C-75 repeals section 159, anal intercourse, and this is an important part of thePrime Minister's recent apology to LGBTQ2 people, in which he specifically referenced the criminal provision against buggery and the harm caused by it. Acknowledging this harm, the government passed Bill C-66, which allows those convicted of this offence to apply to have their records expunged under certain conditions.

The repeal of anal intercourse is part of the larger effort to eliminate what has been labelled “zombie” laws. These laws are still on the books despite court rulings specifically declaring them unconstitutional. The Prime Minister also apologized to those arrested in the bathhouse raids, and he specifically referenced the injustice caused by the bawdy house law, but this was excluded both from Bill C-66 and the bill before us today. This is because the bawdy house law does not precisely fit the government's narrow definition of a zombie law. It has not explicitly been declared unconstitutional by the courts. It's not a zombie law. It's a different kind of monster. It's a Frankenstein law.

Why am I using this broad cultural reference to Frankenstein to describe the bawdy house law? Well, I'm going to give you three reasons.

First, like Frankenstein, the bawdy house law is a 19th-century relic. It was included in the original 1892 Criminal Code as a prohibition against brothels and other spaces of sex work. It was amended in 1917 to include places of indecency, in an effort to close massage parlours. This law is anachronistic and it must be repealed.

The second reason I am calling this a Frankenstein law is that like Frankenstein's monster, the bawdy house law is known to cause harm. In the 2013 Bedford decision, the Supreme Court found the bawdy house law to cause harm to sex workers that is grossly disproportionate to the objectives of the law. As a result, the reference to prostitution was removed from the bawdy house law under the Protection of Communities and Exploited Persons Act in 2015, PCEPA.

PCEPA maintained many unjust laws, including the bawdy house law and its reference to indecency, which was used by police to raid bathhouses. From 1968 to 2004, more than 1,300 men were charged in bathhouse raids all under this law. You heard last week how this caused harm to gay men like Ron Rosenes, a member of the Order of Canada who to this day has a police record from being charged in the 1981 Toronto bath house raids.

The government has specifically apologized for this unjust law. Why do we need to be here to ask for its repeal? Men like Ron Rosenes deserve to have their records cleared.

The third reason I'm calling this a Frankenstein law is that like Frankenstein's monster, the bawdy house law does not resemble the intention of its creator. This law was created by Parliament to criminalize brothels and other sexual spaces based on a community standard of morality.

The 2013 Bedford decision led to the removal of sex work from this law. This left behind the vague concept of indecency, which was significantly altered by the Supreme Court in the 2005 Labaye case. In that decision, the law was not declared unconstitutional; instead, it was rewritten by the court. The definition of indecency was changed from a community standard of morality to a standard based on non-consensual harm.

This new definition of a bawdy house is a very serious offence and is totally unrecognizable from what Parliament intended. What was once a morality law against brothels has turned into a heinous, violent crime. What type of establishment would allow such acts of non-consensual harm? Is a 19th-century morality law the best tool to combat such places?

Such acts are covered under other more appropriate sections of the Criminal Code. It's strange that clause 75 of Bill C-75 amends the bawdy house law to allow the possibility of summary conviction, a lesser penalty. This is inconsistent with the gravity of this offence as the courts have defined it now.

In 1982, then minister of justice Jean Chrétien said to this committee, “As a matter of principle, I believe that if sections of the Criminal Code have fallen into disuse or become obsolete, there was no reason to maintain them.” There were zero charges under the bawdy house law in 2017. Parliament does not need to wait for the courts to repeal this outdated law, especially a law that the Prime Minister has apologized for.

I urge this committee to not only repeal the zombie laws, but also the Frankenstein laws, and all other laws crafted in 19th-century morality that have criminalized LGBTQ2 people and sex workers.

Thank you.

[Professor Robert Leckey, Law Professor, McGill University, and Past-President, Egale Canada, Egale Canada Human Rights Trust]

Thank you very much. Signal if I'm going too fast at any point.

Our LGBTQI2S communities are appreciative of the interest shown us by the federal government in a whole range of ways, reaching right up to the Prime Minister.

In my time this afternoon, I intend to make four points. First, I will articulate our general perspective or approach. Second, I will express Egale Canada's agreement with the submission by Gentile, Hooper, Kinsman, and Maynard, whom you'll be hearing from, it turns out, after me.

I want to call for legislative change in two respects. The first is the failure in Bill C-75 to address the problem of surgeries on intersex children, and the second is a problem with the otherwise welcome efforts to undo past discrimination against our communities.

Let me start, briefly, with the overall perspective.

At Egale Canada, we come at these issues from a general approach attuned to LGBTQI2S equality, dignity and inclusion. Fundamentally, we are keenly conscious of the long history of the criminal law's sexual and moral offences being applied against our communities discriminatorily, discretionarily and disproportionately. We would emphasize intersectionality, conscious that members of our community experience overlapping disadvantage by virtue of being queer people with disabilities, for example, or being racialized or indigenous transpeople. I would emphasize the symbolic significance of the criminal law on matters touching our communities.

The Victorian prohibitions relating to sodomy, bawdy houses, indecency—you name it—have consequences beyond their enforcement and convictions obtained. The mere threat of their enforcement can operate powerfully, and it operates more powerfully against those most vulnerable people who might not get good legal advice or have any idea how to respond.

Second, very briefly, I wanted to signal that we fully endorse the report from Kinsman et al., whom you're about to hear from. We support their calls for Bill C-75 to go further than it does, in a number of ways. We affirm their call for adopting clear, evidence-based guidelines on the use of criminal law in prosecuting cases of HIV non-disclosure.

Let me turn now to the two legislative changes that it is possible nobody else will raise with you.

The first concerns intersex children. Subsection 268(1) of the Criminal Code sets out the crime of aggravated assault, and subsection 268(3) addresses excision. It specifies that “wounds” or “maims” includes cutting a person's “labia majora, labia minora or clitoris”, but then it provides an exception, where surgery is performed “for the purpose of that person having normal reproductive functions or normal sexual appearance or function”. The alternative basis for the exemption from aggravated assault's application is when a person is at least 18 years of age.

In other words, paragraph 268(3)(a) deflects the protections of the criminal law from children on whom surgery is inflicted for the purpose of giving them a “normal sexual appearance or function”. The idea of a “normal sexual appearance or function” is a vehicle for cisnormative assumptions about which bodies are medically correct or normal.

I can't undertake a full charter analysis this afternoon, but subsection 268(3) raises concerns about security of the person and equality. Moreover, international human rights bodies have recognized that so-called corrective surgery of children whose genitals are characterized as abnormal violates their personal autonomy and integrity. We urge you to amend Bill C-75 to modify subsection 268(3).

The final point concerns legislation with a view to ending historical discrimination.

Two corrective efforts—proposed section 156 in Bill C-75 and the expungement mechanism in Bill C-66, already passed—rely unjustly and discriminatorily on today's age of sexual consent.

First, proposed section 156 preserves the possibility of prosecution for wrongful conduct where the offences, once in place, have been repealed, so long as the conduct remains criminal today.

Second, paragraph 25(c) of Bill C-66 provides for applications for expungement orders for convictions in respect of listed same-sex offences on certain conditions, including that the persons participating in the activity were 16 years of age or older at the time.

Both provisions aim to end the harmful effects of criminalizing same-sex conduct in a discriminatory way, while preserving the power to punish conduct that remains plainly criminal by today's standards. But both are problematic. Efforts to assure equal treatment must not rely, as these do, on the current age of consent of 16. Instead, it is necessary to take into account the fact that, while the age of consent for sodomy was for a time 21, and then 18, the age of consent for different-sex sex was 14 until the year 2008.

Proposed section 156 would still allow the prosecution for consensual sodomy committed with a 14- or 15-year-old, because today, someone that age cannot consent to sex except with a person close in age to them. The expungement provision, for its part, would not permit the expungement of a sodomy conviction for consensual sodomy carried out with a 14- or 15-year-old. Whatever the good intentions, these provisions unintentionally perpetuate discrimination against our communities, insofar as there is no basis for prosecuting a heterosexual who had consensual vaginal intercourse with a 14- or 15-year-old while the age of consent was 14.

Accordingly, Justice Canada's charter statement is incorrect when it states that “the enactment of proposed section 156 would limit any such prosecutions to those that do not raise Charter concerns.”

Thanks for your attention.

[Ronald Rosenes]

I think there are two things that are important. I think the posthumous provision is important. I would support that without question.

As well, I've done a lot of work with historians, who will be presenting in the future. When we presented on Bill C-66, I also said, “Look, I don't want to have my record at the Toronto Police Service or the Scarborough Court anymore, but I don't want to see my records disappear off the face of the earth, because I think it is important to preserve our history”, so I would also add to your point that I would very much like to see the preservation, with my express permission and with agreement, of our documents in the historical archives of such places as the Canadian Lesbian and Gay Archives in Toronto.

That is just one example. I would like to see the records preserved in that way, if possible, and under our express permission.

[Ronald Rosenes, Community Health Advocate and Consultant, As an Individual]

Thank you and good evening. I really appreciate the invitation to be able to speak to you this evening.

I would like to thank the members of the committee for this invitation.

I will be speaking in English.

I'm really here tonight to speak very specifically about the impact of the bawdy house law on LGBTQ people over many years. While I applaud the proposed repeal of anal intercourse from the Criminal Code, it was certainly not the only law that was used to unjustly target LGBTQ people in my community.

I'd like to begin by telling you a story. I'd like to take you back to the night of February 5, 1981, which remains seared in my memory, despite my very best efforts to put what occurred behind me.

That night, I found myself at the Roman baths on Bay Street. For those who don't know, that's a club for men seeking to meet other men for consensual sex. It's a place that I had visited on several occasions as a 34-year-old out gay man seeking to enjoy my new-found sexual freedoms in a supposedly safe space. However, what happened that night really was my first-ever encounter with the state and a police force that took it upon itself to enforce the archaic bawdy house law that still exists on the books and in the law to this day. It's a law I would very much like to see repealed in Bill C-75.

That night, we were rounded up brutally. We were called “dirty faggots” and arrested as “found-ins in a common bawdy house”. The police may have suspected that money was being exchanged for sex, but this was never proven in court. The premises were ransacked at all of the city's bathhouses that night, and several closed their doors permanently as a result.

In his apology last fall to the LGBTQ community, the Prime Minister specifically mentioned the bathhouse raids and the bawdy house law in his apology, but those of us arrested using these provisions were left out of the most recent bill, Bill C-66, which was the expungement legislation. I again provided witness testimony to the senators, who seemed reluctant, in retrospect, to tackle the issue, perhaps—this is something we can discuss—out of concern that the bill would not get passed before the summer break. For us and for me, Bill C-66 became a lost opportunity in terms of providing an opportunity for the repeal of the bawdy house law.

I'd like to also remind everyone that more than 1,300 men were charged with this offence for being in a gay bathhouse between the years of 1968 and 2004. I feel as though I carry their voices into this room with me.

We were dragged through the courts and publicly humiliated. I ended up being put on the stand, where I admitted that I had been at the Roman steam baths that night—yes, I got on the stand and I told the truth—and I became one of some 36 men, out of over 300 who were arrested, who were actually convicted, and I was made to pay a fine. In my case it was an insignificant amount. It was insignificant, really, compared to the sense of shame that I and many other men were made to feel as our names were read out in open court and dragged through the press at the time.

In my case, I was fortunate. My own self-esteem has remained intact. I have benefited from a number of advantages—a loving family, loving partners, a good education—but I can never forget what happened that night. I was wrongfully arrested and convicted, having committed no crime.

Others were not so fortunate. Many lives were ruined that night by exposure in court and the press. Bathhouses at the time were often frequented by men who went home to families who were unaware of the sexual orientation of their spouse, their father, or their brother, and many were from cultures in which homosexuality was frowned upon.

Those of us who were arrested in the bathhouse raids are now dependent on the repeal of the bawdy house law. To this day, it shocks me how traumatizing and stigmatizing that night was and the bathhouse raids proved to be. At least two men are known to have taken their own lives. To this day, I'm one of the few people among those who were arrested who is willing to talk about the bathhouse raids and that night publicly.

The unrelenting power of stigma continues to cast a shadow over many lives. For that reason, I'm here today to appeal to the legislators to ensure that people like me with records, people who were wrongfully convicted of being found-ins in a common bawdy house, are treated on an equal basis in the proposed legislation. We missed out on Bill C-66, but I would like to be treated no differently from all of my LGBTQ sisters and brothers who were either hounded out of the civil service or dishonourably discharged from the military.

Now we are dependent, as I said, on repeal of the bawdy house law in order to apply for expungement of our wrongful convictions and, in some cases, criminal records. Certainly it was clear from Bill C-66 that an offence had first to be repealed before it could be added to the list of offences that qualify for expungement, so the law needs to come off the books.

It came to me as quite a surprise, through a request for information from the Toronto Police Service in December of 2017, that a record of my arrest and a supplementary report could still be found in their files. I suspect that if this is true for me, it's true for others. Therefore, I'm here today really on behalf of all of us to ensure now that we're included in Bill C-75. People who were wrongfully arrested in the bathhouse raids, I believe, have every right to request inclusion under the same law that offers expungement to others and to feel part of the government's apology. The bawdy house laws were among the laws used, in the words of MP Randy Boissonnault, “to victimize LGBTQ2S+ people systematically”, to give you the proper quote.

Bill C-75 now gives you the opportunity to correct this oversight. I think it would be a grave miscarriage of justice to ignore this opportunity and to deprive us, all of us, of our right to equal justice under the law. I think it's time to put 19th century notions of indecency behind us. Only those acts that are non-consensual or that cause harm to others should be prosecuted under more appropriate sections of the Criminal Code.

Also, I would like to say that I stand in solidarity with people in the sex-work community because I understand first-hand the harm that was caused by the bawdy house law. I also stand with others in recommending that the bill be amended to repeal laws that have been unjustly used against our communities, including laws related to obscenity, immoral theatrical performance, indecent exhibition, and nudity. I know that next week my colleagues will be speaking further to some of these issues.

It's essential, in my view, that we create some closure around these painful moments in our history. There are those who will say the raids came about as a result of attitudes and opinions—that is to say, prejudice against and fear of homosexuals and homosexuality that were prevalent in society at the time and persist to this day. Laws do not necessarily change prevailing attitudes, but they are absolutely necessary, in my view, for the protection of our human rights. They represent a necessary step in the ongoing struggle to promote tolerance and respect for difference in Canadian society.

While you're addressing delays in the judicial system and looking at the matter very broadly through this legislation, I hope you will take this opportunity to remember those of us who were arrested back in 1981 and over the years from 1964 into the 2000s, and that you will ensure this time around that the bawdy house law is repealed in Bill C-75.

Thanks very much.