Public Safety Committee on May 1st, 2019

[Solomon Friedman]

Yes, I tend to agree with that. My frame of reference here is having seen hundreds or thousands of criminal record printouts from some of my clients. The nature of the offence is very clearly delineated. That's why I said if you can go one way, that is, put a person's name to get a list of offences, those offences are listed right there and they're listed with enough specificity in my view that you could engage the record suspension or expungement process.

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

All right, thanks.

[The Chair, Liberal, John McKay]

Welcome to the committee, Mr. Cooper, you have five minutes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much, Mr. Chair.

Thank you, Mr. Friedman.

I agree with you that Bill C-415 is not a perfect piece of legislation, but in my view, it is a far better piece of legislation than this legislation. I look forward to voting in favour of it in about 45 minutes.

[Solomon Friedman]

Good for you.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

As you noted in your testimony, a pardon is not a deletion, but rather a suspension. Therefore, if one were asked by an employer or if they were looking for housing or looking to volunteer as a coach of their kid's soccer team or whatever it may be, if they'd been convicted of a criminal offence, they'd have to answer yes, would they not?

[Solomon Friedman]

Well, if they have received a record suspension, that removes any effects of conviction. My view would actually be that an effective conviction is having to answer yes to the fact that you've been convicted.

The vulnerable sector is different. I direct your attention to section 6.3 in the Criminal Records Act where the vulnerable persons issue is raised. There is a schedule of offences there, and that schedule of offences would not apply to a possession of cannabis charge. In my view, I don't think a record suspension would, necessarily, trigger an issue with the vulnerable sector. But of course, the trouble with the record suspension is, because the record is there, some future legislature can come and change that rule, right? Some future legislature can come and say, no, this should fall under a vulnerable sector. Or when I said that a record suspension can be revoked statutorily or administratively, I mean statutorily. If the record still exists, then a future parliament can decide, hey, all those record suspensions are right back to convictions.

That's why, in my view, an expungement is far preferable.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Right. In terms of the application process to the Parole Board, you talked about it being quite onerous. We saw, with Bill C-66, passed by the government, a process where someone could get an expungement but they would have to apply. I think approximately 9,000 or 10,000 Canadians were thought to be eligible. I think at last count it's something like seven or eight people who've bothered to apply or have been able to get through all of the paperwork. We're looking at about 250,000 people who might be eligible, and the estimate is that 10,000 might apply. Isn't even that, perhaps, a little optimistic?

[Solomon Friedman]

I think 10,000 is extremely optimistic. Remember, when it comes to this category of convictions, we're dealing with a disproportionate population in terms of marginalization. We're talking about individuals with mental health or educational deficits. I think you're going to have an even lower proportion than under the historically unjust convictions.

Maybe I'm an eternal optimist. This is an age of electronic databases. I understand there might be some people whose records might be difficult to access; maybe there was a paper database converted to an electronic one; great. We'll put asterisks next to those people and they can get letters from the Parole Board saying, “Hey, maybe you should apply and clear this up for us”, but I'm certain that out of that 250,000, the vast majority can be simply rectified electronically and automatically.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

It's been done in other jurisdictions—San Francisco. Automatic [Inaudible—Editor] system.

[Solomon Friedman]

San Francisco; snap of the fingers.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Yes.

[Solomon Friedman]

I don't know. Do they have much better computers than the Government of Canada? We're talking about the City of San Francisco there. Surely this can be done.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I guess what really bothers me is that we've got 33 sitting days left in this Parliament. This bill is not going to be passed. It's been a number of months since legalization came into effect. I voted against legalization, but I agree with you that it's fundamentally unjust to be burdened with a criminal record for committing an offence that is perfectly legal today and, frankly, a vast majority of Canadians have no objection to it.

Shouldn't this really have been part and parcel of the government's legalization legislation?

[Solomon Friedman]

That might be a little outside of my can. I'm a lawyer without an opinion on something. I'll say this. You're doing a lot of good work here and when it comes to the private member's bill, Bill C-415, I hope that the work and the research this committee does, if this bill doesn't pass in the present Parliament, goes on to the next parliament that can handle it and address all of these concerns with respect to the application process, expungement versus record suspension, and ensure that this is the most just version of this bill possible, whenever it gets passed.

[The Chair, Liberal, John McKay]

Thank you.

Mr. Dubé.

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

Thank you, Chair.

Just for the record, and in defence of Mr. Rankin who's not here to defend his bill, I will say that our position, and his, is that it should be automatic, but there's some consternation as to whether royal recommendation is required. If there's a certain amount of cost, we'll definitely see what the rulings are in this committee when we present similar amendments to this legislation. I do want that to be clear. Certainly the expungement that's proposed in the bill is definitely a vast improvement, so we'll see, as Mr. Cooper said, how the vote goes in the next few minutes.

Mr. Friedman, thank you for being here. I appreciate it.

I did want to ask about the statistics, the 10,000 out of 250,000 and then the seven out of 9,000 or whatever it is for Bill C-66. Obviously, based on your comments, I think there might be a safe assumption—if there's such a thing to make here. I'm just wondering, do you think the 240,000 others who won't apply would likely not be applying because they fall into some category of marginalization or because of the different exemptions that exist relating to, for example, unpaid fines in the legislation?

[Solomon Friedman]

Yes, I think there are a number of factors here. First of all, it's all well and good to think that, when Parliament passes an act, it's somehow simultaneously transmitted, maybe telepathically or otherwise, to every Canadian.

There are people who have no idea what it is that you guys are up to on a whole number of fronts—

[The Chair, Liberal, John McKay]

Neither do we.

[Voices]

Oh, oh!

[Solomon Friedman]

—present company excluded, of course. That's number one.

You're going to have people who simply won't know, and you know why? When you look at what's important in their lives, they might just not care. They might have learned to live with a criminal conviction and its consequences. That's number one; you have a communications problem.

That problem is further compounded when you look at the population groups that are disproportionately affected by the criminal prohibition of cannabis, people who have educational challenges or mental health challenges who might live on the margins of society. If we can improve their lives by removing a barrier to employment, financing, travel, etc., in my respectful view, Parliament should do everything it possibly can to reach those people, because the people who will be reached and will know about it can probably hire lawyers like me.

Forget hiring your predatory pardon application people. They'll probably have counsel, and they have probably dealt with this a long time ago, and they probably got a proper record suspension by going through that process a long time ago. We want to reach the people who really need to be reached.

In my respectful view, the bill needs to be amended significantly.

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

The officials who were here on Monday talked about non-traditional means, and it almost sounds like some kind of Twitter strategy. I'm not trying to be glib about it; it's very unclear what they're actually going to do.

From what we've been discussing and what we discussed when we did a study on record suspension as a broader issue and the reforms that are required, we talked about these sorts of bad actors trying to act in this realm.

Basically, the government would have to develop some kind of strategy to compete against these individuals, and ultimately, the amount of work that it would require could easily be the work that would be applied to finding the records, deleting them and going through expungement.

Do you think that is a fair assessment of that type of situation?

[Solomon Friedman]

I'm not an expert on government databases, but as I said, it boggles the mind that a bunch of smart people can't get together, get a software developer here or there, look at the database and just pick out these records.

As a self-employed criminal lawyer, I know I get a lot of unwanted automatic mail from various Government of Canada agencies. They find me, and they know exactly what I am up to, what taxes I've paid and when my installments are due, so the Government of Canada is really good at those automatic record-accessing databases. Surely when it comes to helping out some poor, marginalized, mentally ill people who are really in need of this assistance, for whom this could make a big difference in whether or not they reintegrate into society, I have to think—and I'm not being glib, either—that some smart people can sit down in a room and get it done.

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

I think it's safe to say that expungement would be the best option. If that doesn't come to pass, would it still be better to have the record suspension be automatic and just remove the burden of applying?

My sense from what you've said is yes. Am I understanding you correctly?

[Solomon Friedman]

Yes, and I say that with all of the bill. It's better than nothing, but you guys can do better than nothing, for sure, and you can do better than better than nothing.