Evidence of meeting #159 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was conviction.
A recording is available from Parliament.
Founder and Director, Campaign for Cannabis Amnesty
I would imagine that it wouldn't surprise them.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
That brings me to this. You referenced a Supreme Court case, so there really is no legal foundation for what constitutes a historical injustice. Obviously that decision you referenced goes into it, but when the minister tries to create a standard—and he was very careful in his testimony Monday to not use that phrase again, although others like Minister Blair have—there's no real precedent. There's no measuring stick as to what would reach that threshold.
Founder and Director, Campaign for Cannabis Amnesty
Right, yes. The case I was referring to wasn't about historical injustices. It was about equality.
Founder and Director, Campaign for Cannabis Amnesty
The definition of equality under the charter is a definition that has been developed through case law, and it's a term of art. When you say “equality”, you don't mean formal equality, you mean substantive equality, and that has a meaning. It has content.
Historical injustice is not a legal term of art. You could use it to describe anything that you deem to be a historical injustice, but I think what Minister Goodale was doing in his testimony was being very careful, because the government in essence has created it to be a term of art because of the way that it has structured Bill C-66. I think Bill C-66 was designed to address it with the term “historical injustice”. There was a schedule, and on that schedule they put offences they deemed to be historical injustices. In order for them to have an argument to exclude certain offences from that schedule, they would have to define them as something other than historical injustices.
So I think it's a term of art that's artificially constructed, but you can define historical injustice in any way that you choose to.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
So ultimately what you're positing by using the discussion about equality is that there is clearly an inequity in how these individuals were treated and such. If you're going to use this term of art, as you say, then it could easily fall under the same sort of construct, but ultimately, it's unnecessary to go forward with expungement. If it's perceived in a particular way, if the social acceptance does exist for this activity now, which is now legal, then there's no reason why it couldn't just simply be expunged.
Founder and Director, Campaign for Cannabis Amnesty
Well, what I was trying to lay out had to do with the harm that was done by the historical injustices, the offences that essentially were homophobic in nature. They discriminated against individuals on the basis of sexual orientation. That is a violation of the charter, and it is false to try to draw a distinction, if you're looking at what is a violation of the charter, between laws that are discriminatory on their face and those that are discriminatory in their effect.
Founder and Director, Campaign for Cannabis Amnesty
So it's a false distinction if your objective is to try to define things that would violate section 15 of the charter.
Matthew Dubé NDP Beloeil—Chambly, QC
I appreciate that. So some of the issues that people would have that would qualify for the process laid out in Bill C-93—and we've had confirmation from officials on this—would include things like those you've mentioned, some of these administrative offences, such as failure to appear in court, unpaid fines, which some would say could be fines of as low as $50. Even then “low” is a relative term, naturally.
In your experience, would it not be the same marginalized individuals who would be targeted by those criteria that we're seeking to remediate with this legislation?
Founder and Director, Campaign for Cannabis Amnesty
In my experience, and I believe in the experience of many of my colleagues who defend these people on a daily basis, there's not necessarily any correlation between the number of offences on a person's rap sheet, a person's record, and the extent to which the person poses a real and true danger to society.
In fact, my clients who have the longest conviction records are the ones who have the greatest mental health challenges. They cannot understand, and for that reason they miss court dates. They are compulsive in their behaviour in terms of not showing up for court or compulsively stealing and things like that. That doesn't necessarily correlate with the people we are seeking to target as being the most dangerous and reckless people in society.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
And so there's a big distinction between achieving a public safety objective by not wanting to give someone a way out when there might be more serious issues and someone who might have an unpaid fine or this type of administrative offence.
Founder and Director, Campaign for Cannabis Amnesty
Exactly. It's not necessarily the existence of another offence on their record that speaks to the danger they pose to society, but really the nature of the offence.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Ultimately we favour expungement; it seems that the government doesn't.
However, even if they were to remain with the pardon called the record suspension system, would it not be preferable for it to be automatic to avoid this application process that, despite being expedited on the federal government's side, is still costly and drawn out, given what's been raised here today and on Monday?
Founder and Director, Campaign for Cannabis Amnesty
Yes, absolutely.
One of my primary concerns is that this legislation, while well-meaning and much better than the status quo.... I'm not here to completely dismantle it. I think it's fantastic that the government has taken this initiative. My concern is that people will not take it up.
President, Canadian Police Association
If it is automatic, how do you determine the nature of those additional offences to determine whether there is a public safety risk or not?
Founder and Director, Campaign for Cannabis Amnesty
I think if there are other offences, you wouldn't qualify for this.
Liberal
The Chair Liberal John McKay
I have to leave it there.
This is an interesting point in the debate, so maybe Monsieur Picard can pick it up in the next seven minutes.
Liberal
Michel Picard Liberal Montarville, QC
No, I won't. I'll change the subject.
Madam, do you think consuming cannabis is a basic right?
Liberal
Michel Picard Liberal Montarville, QC
Do you think an activity that is prohibited and then becomes permissible is worthy of an administrative correction—without getting into the administrative aspect—where the correction does not necessarily relate to a basic right?
Liberal
Michel Picard Liberal Montarville, QC
On Monday, we heard from department officials, and they explained the difference between a suspension and….
What's “expungement” in French? I don't know.
On the difference between expungement and suspension, the pardon has a paper trail, but there's no such document to explain an expungement, so no one can arrive with a document.
Do you agree with that?
Founder and Director, Campaign for Cannabis Amnesty
I do not. I make reference to that in my written submission, but I can respond right now.
Essentially, what Minister Goodale was trying to say was that pardons are more beneficial for government crossings to the United States, because a successful applicant will have documented proof of a pardon while an expungement does not. This would only be the case where the government creates a regime that results in that objective.
This question was raised in this committee when the government was studying Bill C-66, which was a bill to create expungement for historically unjust sentences. When the CEO of the Parole Board, Talal Dakalbab, testified before this committee, he was asked this very same question.
Talal Dakalbab testified that those who receive an expungement pursuant to Bill C-66 could carry with them the Parole Board of Canada's expungement decision. This is a quote from that testimony:
This document shows that their offence has been expunged or that they have obtained a pardon or a record suspension. This is usually how this information can be removed from the systems of other countries.
There is a mechanism—if the government constructs the legislation in that way—to provide a document that is equally as useful in the process of an expungement but that is not in a criminal record database. With something, for example, like a birth certificate, there is meaning and weight to its significance, but it's not in a police database; it doesn't prevent you from getting a job.
Where it can be created, as Minister Goodale mentioned in the case of a suspension, it can also be created in the case of an expungement, and that was suggested by the CEO of the Parole Board when testifying about Bill C-66.
Liberal
Michel Picard Liberal Montarville, QC
What's the point of creating something new when you already have something that works and is understood by other police forces, namely U.S. customs?