Public Safety Committee on Dec. 6th, 2018

[The Vice-Chair, Conservative, Pierre Paul-Hus]

Thank you, Ms. Dabrusin.

We have two minutes left. Does anyone want to ask a question?

Go ahead, Mr. Spengemann.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

That's good of you. Thank you, Mr. Chair.

It's a question slightly out of the box, and it came up in the context of a study we're doing on the Standing Committee on National Defence, Bill C-77, and it involves service offences. Are you in a position to describe to the committee how offences committed by a member of the armed forces within the military code of conduct may or may not make their way into the criminal records in the civilian world, and what kind of suspension question, if any, would arise in that context?

[Brigitte Lavigne]

Certainly within the current process we do, albeit not many, we have applicants who are former or current force members. They received a criminal conviction as per the Criminal Code, and then we would review their military conduct sheet, in terms of the conduct, as well as any other form of conduct that would be non-law abiding, as part of our review, and their application would go before a board member for determination.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Is it fair to say there's a possibility that an offence committed within the armed forces that is not, strictly speaking, criminal in nature may be seen as a criminal offence through a civilian criminal record check, which may attach the stigma of its being a criminal offence without having that status within the armed forces?

[Brigitte Lavigne]

I don't think I can speak to that.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thank you.

[The Vice-Chair, Conservative, Pierre Paul-Hus]

Thank you very much.

Ladies, Mr. Churney, thank you for being here and for your answers. We appreciated them a great deal.

We will suspend the meeting to give our other witnesses some time to take their places.

Thank you.

[The Vice-Chair, Conservative, Pierre Paul-Hus]

Ladies and gentlemen, we now resume the session on motion M-161. It deals with the record suspension program and was introduced by our colleague Wayne Long.

In the second hour of the meeting, we will be hearing from representatives of the Canadian Association of Elizabeth Fry Societies, the John Howard Society of Canada, and the 7th Step Society of Canada.

I welcome you all to the committee. You have seven minutes for your presentations. Let us start with Ms. Lafond.

[Louise Lafond, Registered Nurse, Canadian Association of Elizabeth Fry Societies]

Thank you, Mr. Chair.

Good afternoon.

Thank you for welcoming me here today, particularly on this National Day of Remembrance and Action on Violence against Women.

First, I would like to acknowledge our presence on the unceded territory of the Algonquin Anishinabe nation.

I wish to thank Kassandra Churcher, Executive Director of the Canadian Association of Elizabeth Fry Societies, and Sarah Davis, Executive Director of the Elizabeth Fry Society of Ottawa, for asking me to appear on behalf of Ms. Churcher who is unfortunately unable to attend today.

I find myself in a liminal space, as I am not a member of the Elizabeth Fry Society, but before I became a nurse, I worked for the Parole Board of Canada as a record suspension officer from October 2012 until August 2016. I screened thousands of applications and investigated half as many summary level cases as, in general, the expectation was to screen 10 files per day and open five investigations.

From my experience as a record suspension officer, and as a nurse in a supervised consumption site, working with some of the most marginalized people in our society, I am well aware of the benefits of and barriers to record suspension. As was shared with you previously, 95% of the approximately 500,000 pardons and record suspensions that have been granted or ordered since 1970 are still in effect. Of course, I cannot break the confidentiality of my clients, past and present. However, I can speak generally of the experiences of clients who have applied or who are unable to apply for record suspensions.

To address the subject, I will ask that you do a thought experiment with me.

Recall a moment in your life when you made a social gaffe, something innocent but something you now regret. Let's call this X. If you have a spare bit of paper, feel free to make a big X on it. This X is your criminal record. In the now of social media, this gaffe will follow you wherever you go and be the first thing that comes up when anybody searches your name on the Internet. This is what my clients have faced whenever they have sought, for example, employment in the mainstream economy, to volunteer at their child's school, to gain admission to teacher's college or to travel to the United States. If they are able to apply for a record suspension, it's like being able to turn that page over. The X is still there, but they are able to pursue paths that were closed to them.

The palpable relief that I was so seldom able to hear from my clients when they received their record suspension was gratifying. I would often speak to my clients when they were seeking advice on their applications or when they were in the process of applying. The amount of distress that they were in was sometimes overwhelming. They were revisiting that X and all the circumstances that surrounded it, trying to navigate the justice system in the opposite direction, and trying to discern all of the very formal and legal language. They knew that they were going to be re-evaluated in the light of that X once again, and they wanted to get it right the first time.

Without going into specifics, I recall a client who was able to reach me who was waiting to have their file reviewed by a board member. There was quite a backlog at the time, and normally no exceptions were made. However, they told me that they had been accepted into a one-year professional program at a university on a full scholarship and that if they did not receive a record suspension that day, although they had applied with a lot of lead time—approximately six months in advance—their acceptance would be rescinded. I was able speak with a board member and I explained the circumstances. The board member agreed to look at the file and ordered a record suspension that day. Because this person received a record suspension, this person was able to go school and avoid losing the scholarship and having to go for four years.

Many of the people I work with now, especially women, would like to apply for a record suspension. However, because their income is so low and they live in precarious housing, even if they are eligible, they cannot even scratch together the approximately $85 to get fingerprinted and to request a copy of their criminal record. Indeed, the city of Ottawa is a place of privilege in comparison to others as these services are available in close proximity.

I would not want to be a single parent living in a rural area and attempting to apply, as the barriers to reach such necessary services as fingerprinting, courthouses, police and postal services would be prohibitively expensive and time consuming.

In my practice as a nurse, because of my background as a record suspension officer, I have been offering record suspension consultations to my clients. The most common barrier that I have encountered is that many of my clients have outstanding fines. They are shocked and saddened to realize that because they owe money, the five- or 10-year clock has not even started to tick for them.

On the other hand, when my clients have tried to research the process of applying for a record suspension, they've encountered unscrupulous agencies offering services that practically guarantee a record suspension at the end, only to be told that they must pay very high fees to even start the process. So there they remain at the margin, unable to pay their fines as they are on social assistance, unable to find a reasonably well-paying job to escape their precarious housing because of their criminal record, and unable to find a way to have a chance to apply for a record suspension.

I would like to thank the committee for its time today. I have provided copies of the record suspension application guide as a reference for your discernment. Should you have any questions, I would welcome them in English or in French.

[The Vice-Chair, Conservative, Pierre Paul-Hus]

Thank you, Ms. Lafond.

Ms. Latimer, you have seven minutes.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

Thank you very much.

It's a pleasure to be here. This is a subject that's very important to the John Howard Society of Canada.

We believe that, under the Criminal Records Act, the current regime for relieving the prejudicial effects of a criminal record is fraught with problems. In fact, we received a grant from the Canadian Bar Association's law for the future fund some time ago to conduct a study of the criminal record system, which really hinders the post-sentencing reintegration of so many with whom we work.

The John Howard Society is a charity committed to just, effective and humane responses to the causes and consequences of crime, which has local offices in all provinces and serves more than 60 communities.

In the interest of time, I'll focus my introductory remarks here on how to improve the system and refer you to the study that we did, which I'm happy to send to your offices via email, if you're interested, so that I can just focus on these issues.

It is our belief that legislative reform of the Criminal Records Act is needed. The Minister of Public Safety, Ralph Goodale indicated in January 2016 that the government was prepared to amend the Criminal Records Act, but no amendments have been proposed to date.

We think that the focus of a new act should be to promote public safety by supporting the successful reintegration of those who have completed their criminal sentences and to achieve fairness and efficiency in the process. The object is not to forgive a person's past criminal wrong, but to recognize that the debt to society has been discharged by the completion of the sentence imposed by the courts and to allow the person to be restored to the community, as a contributing member without the continuing penalization of the past wrong. People should no longer be unprotected from discrimination in housing, employment, education and other areas of civil society because of a spent criminal record. This should be achieved through a fair and efficient process.

Some of the weaknesses that we have identified with the existing system include discriminatory application and results. As you have already heard, the $631 service fee is unaffordable for many and is a true barrier to many who deserve closure of their criminal record. The ineligibility is hard to understand, which denies the possibility of rehabilitation, due to certain types of offences and this is really not supported by the evidence.

For all of us at the John Howard Society, I think that when we see someone who had a serious criminal past change their life and lead a crime-free present and transition into a crime-free future, we say, “Hallelujah. This should really be rewarded.” Our concern—and this came up in the discussion—is that it should be for indictable offences, as well as summary offences, because those are the ones you really want to see change their lives around.

We think that the extended crime-free period is punitive and that, back in 2012, the rationale for doing that didn't seem to be based on any clear evidence, so there is no logical basis for the extension of those crime-free periods.

We consider illiteracy or cognitive impairments to be a real problem. The current process is complicated and requires significant literacy skills to wend your way through that process. People with marginalized and disordered lives are disadvantaged in a process that requires individuals to retain a lot of information about their past, so it's come up that those who move around have to go back to various communities. This is really difficult for people with unstable backgrounds, in terms of housing, addiction or periods of incarceration.

The one that I find truly concerning is that, once you receive a record suspension or a pardon, you're protected from discrimination in areas of the federally regulated sector, under the Canadian Human Rights Act and under provincial human rights acts. What you're having though is equally entitled people, who should get these types of human rights protections but who are not getting them, because they don't have the monetary resources to pay the fee. Therefore, you're denying people access to human rights based on wealth, which I think is a real fundamental concern.

As has been indicated by some of the previous speakers, the process itself is riddled with inefficiencies and unfairness, so it's a very complicated application process. This leaves people vulnerable to private interests that often profit from assisting people with applications, which has been mentioned.

As part of the current process, there are also peculiar things that you have to establish, like the measurable benefit of the record suspension. It relieves people from facing discrimination. Why you would have to prove that this is a measurable benefit to an individual is somewhat axiomatic and takes up a lot of time as part of the process. I think it's sort of clear on its face.

There is also a very onerous investigation process and often arbitrary criteria that the Parole Board is required to use. Whether someone has been of good behaviour—not whether they've incurred additional criminal penalties—is really subject to some varying judgments on what constitutes good behaviour. If we don't like the way they're recycling, does that constitute bad behaviour? If they're getting a lot of parking tickets, does that constitute bad behaviour that would deny them the benefits of a record suspension? Also, pulling the administration of justice into disrepute is also somewhat of a vague criterion. When someone has completed a crime-free period after committing the crime, why would closing their sentence pull them into disrepute?

There are also long backlogs with the current process that need to be addressed.

I only have one minute. The solution that we're looking at is an automatic closing of records once the sentence has been completed and the crime-free period has been met. This works now in Canada in the youth criminal record system. It avoids the costs, unfairness and arbitrary decisions of the adult record system. This would require removing the Parole Board as the decision-maker on these and involving the RCMP, which is the manager of the CPIC system. They would know whether there had been problems with the crime-free period in that intervening time. Their portion of that $631 administration fee is less than $50, so it would really cut down on your expenses.

We also need to define what's a criminal record. Police will want to share access to other types of investigatory records, but you really want this to apply to the conviction records and to be protecting people from that. You need some clear definitions of what you're talking about in criminal records. What we prefer in terms of nomenclature is “open” or “closed” records with possibility of reopening criminal records if there's subsequent criminal activity.

[The Vice-Chair, Conservative, Pierre Paul-Hus]

Thank you, Ms. Latimer.

Mr. Small, you have seven minutes.

Do you have any opening remarks?

[Rodney Small, Core Group Member, 7th Step Society of Canada]

I have no speaking notes. I'm a little different from my friends here, Louise and Catherine.

First and foremost, thank you for having me. I speak from my heart and I speak to my experience. It's very funny, I do have some subtle notes, but a lot of mine are going to come from the heart. The subtle notes that I do have are some straightforward questions that I'd like to pose to the audience here. It's funny because both my friends here definitely went down the road to answer some of the questions that I had been looking to explore.

[The Vice-Chair, Conservative, Pierre Paul-Hus]

I will just let you know that we ask the questions.

[Some hon. members]

Oh, oh!

[The Vice-Chair, Conservative, Pierre Paul-Hus]

You're here to answer our questions, if you can.

[Rodney Small]

Just so you know, this is definitely new to me and you can probably tell I'm a bit nervous. Coming from where I'm coming from, and being in a room of this magnitude, set up in this form, is definitely intimidating, to say the least. It's my first time, and you're going to have to bear with me. It will take a minute to get rid of the nerves, but I'm sure that in due time everything will roll pretty smoothly, as I'm protected by the higher power, no question about it.

The first thing I wanted to speak about is the accessibility of the application process. Speaking from my experience, being from a low-income, marginalized community, I can say that the application is definitely not, generally speaking, accessible.

Now I had the gracious opportunity to go on to university. Many young people in my community just don't get that opportunity. In fact, most of us end up either in jail or, sad enough to say, dead. I'm here today to represent my membership, the 7th Step Society. Most of our core group members are ex-offenders, so I'm more than humbled to be here to speak not only on my behalf, because I have my criminal record suspension now, but for my fellow group members who, sad enough for them, don't have that.

Funnily enough, when I got the criminal record suspension, I didn't feel any different. In fact, it brought up old memories and it made me feel like a criminal again. It almost made me feel like asking, why did I go through such an arduous process?

I brought the application along. I remember when I first decided.... I waited extra long. I knew the time period was five years, and then 10 years for indictable offences, so I actually waited 15 years because I was too intimidated to even approach the process. I just didn't know how to go about it, and I definitely knew that I couldn't afford it, no question about it. The $631 was a deterrent, not even a thought, and I had to wait till I had actually saved up the money and had some support from friends who were willing to help me out during the time that I was getting ready to graduate from university and apply to law school. It was very important, obviously, that I had all my ducks in a row, so that I wouldn't meet some of the same issues that we heard here.

For me, the $631 is the obvious deterrent, because that's the application process fee, but what we didn't hear today are those other fees that are attached to this application. When I go through and look at the 10 steps.... I was very diligent in taking my time and going through each one, because I just didn't have the means to hire a lawyer. For me, getting the criminal record check, that cost money. Getting all the information that is actually required throughout this process costs money, and it adds up. When you don't have that money to spend, these things become deterrents for you.

Now, that's only one thing. The next issue is that you have a lengthy time period to wait just to get some of these documents to put the application together. I remember when I started my application. I started it because, just like I said, I wanted to be prepared to apply to law school. It took literally almost two years to put this application together. I remember when I first got it together. It's a pretty big document, and I remember just holding it. I was so happy with myself, because I had actually accomplished, you know, going through 10 steps of very scrutinizing....

I don't even know how to describe it, revisiting my past in a way that just brought up some old nightmares, to say the least. I'd changed my life for so long that it just brought up some old memories that I really didn't want to be thinking about.

I remember when I finally reached that 10th step. It's the checklist, and you actually have to go through the checklist. It's a part of your application; you have to put it in there. I was just so happy to put that stamp on there and put it in the mail. I was just extremely happy. Then I just remember waiting and waiting and waiting for so long that I actually forgot I had applied for a criminal record suspension, until one day I get home and I get this letter. I'm not going to read the whole letter. It would just take up too much of my seven minutes.

I will read the very bottom part of it for you. It says, “Accordingly, the Parole Board proposes to refuse your request for a record suspension. Please note that this is not the Board's final decision in regard to your application. You and/or someone on your behalf are entitled to make any written representations that you feel are relevant to this matter for the Board's consideration before a final decision.

I was broken. I was devastated. I was stressed out. It literally just took me right out of my current livelihood and brought me back 15 to 20 years. I didn't even know how to respond. I remember that when I first got it, right away, tears came to my eyes. I worked so hard—so hard—to prove that I was a law-abiding citizen. I worked so hard to pull my life together. I gave back so much time to my community, because that's all I knew growing up in my community. In fact, where I come from, we say that giving back is not a requirement. It's an expectation. That's what we do in order to support one another to come out of that marginalized situation.

[The Vice-Chair, Conservative, Pierre Paul-Hus]

Thank you.

I have to stop you now if we want to let the members ask you questions.

We have about 30 minutes left for the question and answer period.

Mr. Picard, you have seven minutes.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

Thank you, everyone.

First of all, Mr. Small, you have no reason to be intimidated. You did perfectly. We are the ones who should be intimidated by your courage and your persistence.

How do you evaluate the time it took for you to get a final answer that prevented you from having access to anything you wanted to achieve?

[Rodney Small]

For me, I don't think the criminal record held me back in wanting to be the person I wanted to be, but I didn't get the opportunity to apply to law school when I wanted to apply. I just didn't want to put myself in a position where I was highlighting my past in a manner that would affect my future.

I had to literally sit back and make sure first and foremost that when I did respond, I knew how to respond, because after going through the 10 steps, I thought it was just clear-cut. I couldn't wait to get my criminal record suspension because, to me, I earned it. I earned it. It was something that I deserved. I was waiting for a favourable response. It set me back a good four years of my life—no question.

[Michel Picard, Liberal, Montarville, QC]

Ms. Lafond, you're fairly passionate about your work and the clients you've served and represented. What is the rate of success for those who got their suspensions and for those who failed?

[Louise Lafond]

Of the ones who I investigated at the summary level, I would say that it's a good 90% or 95%. When people had the opportunity, like Mr. Small did, to make representation to the board, I would encourage them to make a privacy dump of their file so they could actually see what the police were saying about them and they could respond. That is something that is not automatically offered to clients. I would say, “You should ask for a privacy release.” Yes, most of my clients did succeed.

[Michel Picard, Liberal, Montarville, QC]

I'll twist my question a little bit. Of those who got their suspension, how many lost it afterward because of their behaviour, actions or whatever?

[Louise Lafond]

It's very, very few. I could count on maybe two hands the number of applications that I received where I checked CPIC and found a further conviction.

[Michel Picard, Liberal, Montarville, QC]

There's no such thing in life as a free ride. The money that is expected from someone to pay for a transaction or someone's work in a process somewhere is a reality of our lives. Don't you think that the suspension is not a moral thing? It's a social process for a person to be able to reintegrate into society and to be active.

Shouldn't that be covered by part of our daily life, where if you want something you have to pay for it, and therefore, you find ways to somehow be responsible for—