Public Safety Committee on May 1st, 2019

[The Chair, Liberal, John McKay]

That's been one of the sales points of the bill.

[Annamaria Enenajor]

Yes.

[The Chair, Liberal, John McKay]

Before we suspend I'll ask Mr. Eglinski in his generous way to move that we accept the report of the subcommittee.

[Jim Eglinski, Conservative, Yellowhead, AB]

I move that we accept the report of the subcommittee.

[The Chair, Liberal, John McKay]

That's excellent. I thank you for that.

[Jim Eglinski, Conservative, Yellowhead, AB]

I'm just trying to co-operate with you and be part of the team.

[The Chair, Liberal, John McKay]

It's democracy in action.

Thank you very much. With that we'll suspend briefly.

[The Chair, Liberal, John McKay]

We are going to be running up against bells, colleagues. Apparently they're half-hour bells so with your indulgence, and it will have to be unanimous indulgence, and given our late start I would like to run 15 minutes into the bells and then we'll adjourn.

Thank you.

Mr. Friedman, I'll ask you to begin your testimony. If you could cut it down from 10 minutes that would be appreciated.

[Solomon Friedman, Criminal Defence Lawyer, As an Individual]

Good afternoon, Mr. Chair and committee members.

Thank you for inviting me to address you today on the subject of Bill C-93.

First, let's start with the positive. The philosophy behind this proposed legislation is sound. It is fundamentally unjust for individuals to suffer under the continued stigma of a criminal record for conduct that is no longer illegal.

As we are all well aware, a criminal record is indeed a significant barrier to success in our society. It compromises a person's ability to obtain employment, education, housing, financing, volunteer opportunities and travel. These are all roadblocks, individually and cumulatively, to a person's ability to integrate into society, contribute positively to the larger community and lead a productive, prosocial life.

The injustice of maintaining the criminal convictions for individuals previously convicted for simple possession of cannabis is further compounded when we examine the uneven and discriminatory effect of the criminalization of cannabis on already marginalized groups in Canada. In Toronto, for example, where black people make up 8% of the population, they account for 25% of all persons charged with possession of marijuana between 2003 and 2013. The same is true with respect to indigenous persons. Take Regina, Saskatchewan, where 9% of residents are indigenous but were 41% of all persons charged with cannabis possession.

Historically, these offences have disproportionately impacted the most vulnerable in our society: the poor, the marginalized, the mentally ill, the racialized and indigenous people. If the statistics aren't enough, I can tell you from the unfortunately steady stream of clients through my office that those charged with simple possession of marijuana share these traits. They generally derive from marginalized groups and, in a cruel twist of irony, these criminal convictions themselves further marginalize those same groups, perpetuating a cycle of criminalization, stigma and inequality.

Bill C-93 undoubtedly comes from a good place, and the government should be applauded for that. However, while well intentioned and a positive first step—there's always a “however”, especially when you bring in a lawyer—it remains, in my respectful view, deeply flawed. I will address each of these flaws in turn.

First, the bill requires that affected individuals apply to the Parole Board of Canada for a record suspension. This requires that a formal application be filled out and sent into the Parole Board for review. While the bill explicitly provides that no fee is payable for this particular application, unlike the ordinary record suspension fee, I suspect that for many Canadians this process will not be free.

There are numerous companies that for a significant fee will, quote, “assist” individuals in completing record suspension applications. In fact, as of today, the top ad under the Google search results for “cannabis pardon Canada” was a for-profit website offering their services for the low monthly price of $72 and $116 per month if expedited. To be clear, that is a monthly price on a 16-month payment plan. Who do you think this website is targeting to pay $72 or $116 per month on a 16-month payment plan?

We're talking about the low, low price of somewhere between $1,152 and $1,856, and that, of course, is irrespective of whether or not the government charges a fee for these applications. Recall that persons most likely affected by these criminal records are those already at the margins of society: people who have faced systemic barriers to success in education, employment and elsewhere. This bill, intentionally or otherwise, may serve as a barrier for people to obtain the very benefits it purports to offer.

Surely, in our age of electronic data, these records of criminal convictions for simple possession of cannabis can be proactively located by the Parole Board of Canada and identified for whatever action is ultimately legislated, be it record suspension expungement or otherwise. The burden, in my view, should be on government to rectify these records. While for those of us in this room the prospect of completing a government application may not be particularly daunting, it might be near impossible to those facing financial, educational, mental health or other challenges.

Second, Bill C-93 requires that individuals have completed their sentence prior to applying for a record suspension. Why? Why should an individual continue to be penalized, whether it is by a real jail sentence, a conditional sentence, probation conditions or otherwise, for conduct that is no longer illegal?

Why should an individual have to await the expiry of a lengthy term of probation for an offence that no longer exists under our law?

In my view, the injustice created by these criminal convictions should be addressed immediately, without waiting for expiration of any sentence, whether it is a prescribed period of probation, payment of a fine or some other sanction. And if you're too poor to pay your fine, well, you can never complete your sentence and you can never apply for this record suspension.

Third, I turn to the most fundamental issue of all with respect to Bill C-93: the very nature of the record suspensions mechanism. A record suspension is exactly what it sounds like. It is not a pardon; those don't exist anymore. It is not amnesty or expungement. It is a statutory process whereby the record of an offence is “suspended”, that is, “kept separate and apart from other criminal records”. A record suspension can be revoked. This happens automatically upon the commission of virtually all Criminal Code or controlled drugs and substances offences.

But it is broader than that. A record suspension may be revoked if the board is satisfied that the person “is no longer of good conduct”. Let me give you real-life examples of individuals I have assisted who have been served with applications from the Parole Board to revoke their record suspension: people who have been the subject of numerous police checks, intelligence, or otherwise, or have received highway traffic offences such as careless driving. They were found to no longer be of good conduct. Now, I am happy to say we successfully defended those applications to revoke the record suspension.

But there you are. This will be hanging over your head for the rest of your life. Moreover the minister retains the discretion to approve the disclosure of such a record where he or she is satisfied that disclosure is “in the interests of the administration of justice or for any purpose related to the safety or security of Canada or any state allied or associated with Canada.”

I can think of a state allied or associated with Canada that might be very interested in the otherwise criminal records of individuals convicted for the simple possession of cannabis.

In other words, the offence always hangs over the individual's head, record suspension notwithstanding. Most importantly, unlike expungement which requires notification to the RCMP and all other federal agencies to destroy all records to which the expungement order relates, there is no such broad requirement for a record suspension.

In review, the proposed application is itself a barrier to access, particularly for an already marginalized population. The bill requires individuals to complete their sentences before applying. In my respectful view, this is illogical, counterproductive and unnecessary. The record suspension is not a deletion of the conviction record itself; it is a suspension, a temporary suspension, one that can be revived by either administrative or statutory process.

What, then, is the alternative?

I should first note that Bill C-93 is better than nothing. But better than nothing is a mighty low bar for our Parliament. You can do better. You must do better. Instead, I would urge a scheme of expungement along the lines already provided for in the Expungement of Historically Unjust Convictions Act. The record of these convictions for the simple possession of cannabis should be expunged permanently and automatically.

In this regard, I would propose a private member's bill, Bill C-415, sponsored by Mr. Murray Rankin and introduced last October. It comes much closer to the goal of achieving true justice and relieving the disproportionate criminalization and stigmatization for those convicted of a now legal act of simple possession of cannabis.

The government has maintained in its backgrounder to this bill that expungement is only appropriate “where the criminalization of the activity in question and the law never should have existed, such as in cases where it violated the Charter.”

While the first clause of that requirement is debatable when it comes to cannabis. I can tell you as a criminal defence lawyer that the criminal prohibition of cannabis has caused much more harm than good. There is no doubt that the disproportionate application of the law violates the charter guarantee of equality and runs contrary to our most fundamental constitutional values.

It is a historical wrong that ought to be redressed. Parliament can do so via the remedy of expungement. I would urge you to do exactly that.

Thank you very much for your kind attention.

[The Chair, Liberal, John McKay]

Thank you, Mr. Friedman.

We essentially have a half an hour. I'm thinking five minutes, five minutes, five minutes, five minutes, that will take us to 20 after. Then maybe we'll get in a couple more four-minute rounds, if that's all right with people.

Ms. Dabrusin, you have five minutes.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you for setting out what you saw as the basis of some of your concerns about this bill.

One of my first questions—because I asked this in the last panel—is: looking at Bill C-93, would it be an improvement to this bill if we removed the requirement that a person pay any outstanding fine to qualify?

[Solomon Friedman]

Absolutely.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I believe you said this, but I just want to be really clear. Would it be an improvement if we remove the need to complete any of their outstanding probation?

[Solomon Friedman]

Absolutely.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

One of the things you raised, which I raised on Monday when we had people here, was that I also did the Google search and saw the same thing. How would you recommend we inform people that this is a free process?

[Solomon Friedman]

I was speaking this morning to one of my colleagues who used to work at the Canadian Civil Liberties Association. She said they had people all the time saying they were in communication with Pardons Canada and were told to spend $2,000. There's a serious information gap.

My best suggestion, respectfully, is to remove the application requirement. We're in a digital era, these records can be accessed. I don't know how much government databases cost and how easy they are to manage, so maybe I'm making some assumptions there, but I know that we have statistics as to how many records of conviction there are.

I say to the Parole Board of Canada, do it yourself. Maybe I'm just a practical guy. I don't see a possible benefit of having individuals apply. Vet them, if there's some question they don't meet the standards, then engage them.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

One of the things that was raised as a concern by the department when they came on Monday was that, if they were going to dig through all the records to figure out if this was a qualifying record, people would be waiting 10 years to do this record search, as opposed to it being faster if somebody made the applications person by person.

[Solomon Friedman]

I suspect tens of thousands of people don't even know if they have a criminal conviction for the possession of cannabis, who don't understand the implications of it. Colour me extremely skeptical that the Government of Canada can't do a search through their own conviction database.

I deal with police officers every day in my professional employment; they all have access to CPIC, that is their centralized database. They put someone's name in, they get the records of conviction. Surely as it's a database, you can do the opposite, put in the records of conviction to get the names.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

When I read it, Bill C-415 doesn't look as if it proposes an automatic system as well.

[Solomon Friedman]

It does not. I think that's a flaw that should be addressed, automatic and expungement.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

The other thing I was wondering is it looks as if it goes to members of the Parole Board, as opposed to the administrative process of Bill C-93.

[Solomon Friedman]

Yes.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Which process do you prefer, the administrative or going to the Parole Board?

[Solomon Friedman]

I'm a little agnostic about that. If you're going to the Parole Board anyway and they have the specialty in processing pardons...but then again, I've heard about the backlog for pardons. If you're not going to do it automatically, if you have some administrative process that can short-circuit the already long waiting list for record suspensions, that's probably better.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

The last witness spoke about the fact that if you were looking through CPIC, if you were going to try to do this automatic search, CPIC would pull up that it's a schedule II possession, and that schedule II was essentially all cannabis, and one item is now still illegal. Could you confirm that? Her suggestion was to just pull those out.