Public Safety Committee on May 6th, 2019

[The Chair, Liberal, John McKay]

Ladies and gentlemen, I see quorum, and as far as my eyesight allows, I see that it is close enough to 3:30.

We have with us Elana Finestone from the Native Women's Association, and Mr. Cudjoe from the Canadian Association of Black Lawyers.

I'll ask Mr. Cudjoe to go for the first 10 minutes, only because technology is not necessarily always trustworthy.

Colleagues, we've achieved the first element for the process today, which is to merge the two panels so that we are time efficient. I'm anticipating a lot of questions for both panellists and we may go into the second hour.

Second, I'm hoping that over the course of the two hours today, we will agree on a process going forward for the submission of amendments and picking a date for clause-by-clause.

My suggestion to Mr. Paul-Hus and Mr. Dubé has been that we have amendments done by the end of the week. I appreciate that there are some difficulties with translation, because the drafters don't deal with amendments until the bill is actually referred to the committee. This a difficulty for all parties, by the way.

If, over the course of the two hours we have together, you could indicate to me whether we can go with a motion, we won't have to have a subcommittee meeting, but if we can't agree on a motion, we will have to have a subcommittee meeting to agree on a process.

With that understanding, I'll now ask Mr. Cudjoe to make his initial presentation for 10 minutes.

Thank you, sir, for being here with us today.

[Gordon Cudjoe, Vice-President, Canadian Association of Black Lawyers]

Thank you very much for the opportunity to be heard. On behalf of CABL, we really appreciate the fact that somebody thinks our voice is worth hearing.

My apologies for not attending in person. This assignment came to me quite late in the process, which is why there's also no written material.

Looking at all the material I've seen presented by the other parties, most of the ground has been covered, and I don't think I'll be too long.

The recommendation from the Canadian Association of Black Lawyers, I don't know if you've heard it. I've heard the request to expunge the records and to make changes to the suspension of records. The main concern for young Black and indigenous youth who have gone through the system on possession of marijuana charges will be future employment and how that will affect them.

The suspension of the record will almost seem like a token gesture if the committee considers that these convictions perhaps should not have happened in the first place. Having had a discussion with our board, our recommendation is that simple possession of marijuana charges and associated charges be deemed regulatory offences.

That would not take them off the books completely—reference can always be made to them—but the one advantage, and I'm speaking on behalf of youth who are trying to get their first job, is that one question asked by employers to get around the suspension of records act is, “Have you pleaded guilty to a criminal offence?”

It doesn't matter whether you've been pardoned or not, you can't get around that question. If on that form you say that you have pleaded guilty to a criminal offence, you don't even get your foot in the door for an interview, which is why the suspension of a record for many young men trying to get into the workforce is actually a token gesture. Employers are not asking whether you have a criminal record, but whether you've pleaded guilty to an offence, or you've been found guilty by a court of an offence.

For young people, it's even worse. Your record as a youth may be sealed after three to five years, depending on whether you're convicted of a summary or an indictable offence. For a simple possession of marijuana charge, that record could be opened again for any future occurrences. Even with the suspension, I don't know how that's going to work in sealing your record for good as a youth. The problem is that provinces are reporting records for youth, as there's something on their record, but they can't tell us. For a possession of marijuana charge, that puts an individual in line with somebody who has committed homicide, robbery, break and enter, sexual assault, and guess what? They can't tell you what it is. This makes it even worse for the young person.

Our recommendation is that these be deemed regulatory offences. For example, I coined a phrase, “the simple possession of marijuana act.” From that, you can get around things that are blocking people from getting their first-time employment, by sealing their records for good.

I know that Ms. Finestone is going to get into the administrative charges, but there's one charge in particular that I have seen from the ground level that has arisen for young people as a result of possession of marijuana charges.

The second time a young person of 14 or 15 is met and questioned by a police officer, they get scared. They're already in the court system. They may not actually be committing any offence at the time, but because they have a possession of marijuana charge, many times they've lied about their name. They then get an obstruction of a police officer charge. This is all as a result of their original possession of marijuana charge, and guess what? Their criminal career has begun.

For many who live in suburban areas, go to better schools and have better chances in life, this may not be a big stumbling block. However, for many who are coming from extremely poor areas and families who don't have the means to push them forward, this is a huge stumbling block. This is why the suspension of records, which may seem to be carte blanche for everybody across the board, doesn't take into account the numerous people who were charged with possession of marijuana, especially as young people.

I'd ask the committee to look at the numbers of first nation and young black men who were charged with possession of marijuana and to keep these numbers in mind when the recommendations are being followed, or whichever way the committee decides to go. The reality on the ground for black and indigenous youth is very different from the reality for others. Many times we hear police refer to somebody as “known to the police”. Sometimes it is a simple possession of marijuana charge, but it brings that person into the eye of the police who are walking the streets. Many of these young men are not able to stay at home all day playing video games—perhaps they don't have them—and they're out on the streets and come into regular contact with the police.

One particular case went all the way to the Supreme Court: R. v. Mann. Mr. Mann was walking down the street. The police had a call about a break and enter. They saw Mr. Mann, and Mr. Mann, being a young, indigenous man, fit the description. The clothing was completely different, but he fit the description. He was stopped by the police, and the police, for safety reasons, searched him and found marijuana in his pocket. Eventually, the Supreme Court threw it out, but this case went all the way to the Supreme Court.

What does this mean for Mr. Mann and many of the young men who are brought before the court on possession of marijuana charges? Let's review the process. There's a court appearance; it's basically a public shaming of the young man for possession of marijuana. There's the risk of further charges because he is released on conditions. There's the risk of detention if he is arrested for anything else. There's the stigma of walking into the courthouse with people who have been charged with a lot more serious charges. Furthermore, if at the end of it this young person is not given proper advice, he may decide to do what other young people say, that “I want to get it over with.” He is now branded for life with a charge of possession of marijuana. Employment opportunities are going out the window. This is for young men who already find it hard to get into the workforce.

Following that, you have the fail to appear, fail to comply and fail to comply with probation charges, meaning failure of the youth to report to the probation officer. When the record is suspended, what shows up? I say that sometimes for a charge of possession of marijuana, it can actually be more insidious if the provinces are going to report it as “There's something there, but we can't tell you.”

I will respond to one particular comment that was made about deals and how the prosecutor would make deals that would lessen the charges for the possession of marijuana. I think that's questioning the integrity of the prosecutor's office. I doubt they would make deals that were not real. Furthermore, we are well aware—

[The Chair, Liberal, John McKay]

Mr. Cudjoe, I'm not sure if you can see me, but I've been kind of waving at you.

[Gordon Cudjoe]

Oh.

[The Chair, Liberal, John McKay]

You had two minutes, and now you're down to one minute.

If you can arrive at a conclusion, that would be good, please.

Thank you.

[Gordon Cudjoe]

Thank you very much, Mr. Chair.

I was on my last point—

[The Chair, Liberal, John McKay]

Excellent.

[Gordon Cudjoe]

—and I didn't think it would take 10 minutes.

Thank you very much.

With regard to some of the deals that were referred to, I'd like the committee to take into account that many deals are made as a result of overcharging. I think that it's a red herring to go down that path.

I'll sit back and wait for any questions.

Thank you very much.

[The Chair, Liberal, John McKay]

Thank you, Mr. Cudjoe. I appreciate that.

Ms. Finestone, you have 10 minutes, please.

[Elana Finestone, Legal Counsel, Native Women's Association of Canada]

Before my 10 minutes start, I want to mention one housekeeping issue. I have some recommendations and proposed amendments that I just submitted. I won't go into depth about those because we can discuss them during the questions if you would like.

Good afternoon. I would like to thank the Standing Committee on Public Safety and National Security for having me here today to discuss Bill C-93.

I'm here on behalf of the Native Women's Association of Canada—NWAC. For those of you who don't know, NWAC is a national indigenous organization representing the political voice of indigenous women, girls and gender-diverse people in Canada, inclusive of first nations—on and off reserve, status, non-status, Métis and Inuit.

NWAC examines the systemic factors that affect indigenous women's contact with the criminal justice system and seeks reforms that will alleviate the harms faced by indigenous women in contact with the law.

Today, I'm here to talk about justice: correcting historical injustice, accounting for administration of justice offenses and increasing access to justice for indigenous women.

First, I would like to talk about the context of my recommendations. Indigenous women are under-protected by the criminal justice system when they experience violence, go missing or are murdered, yet they are also disproportionately impacted by the criminal justice system.

Too many indigenous women are in poverty, have precarious housing, lack family support and experience mental illness. They tend to lack knowledge of the criminal justice system and are often not represented by lawyers. They experience cultural and language gaps throughout the system.

From the recommendations in the Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission and the testimony of indigenous women themselves, we know that their experience of the criminal justice system can be traced back to colonialism and racism. Indigenous women's criminalization is one aspect of a larger problem.

NWAC recommends that Bill C-93 account for and meaningfully respond to these realities. I'm here on behalf of NWAC today to make concrete recommendations to address the implications for indigenous women as the bill stands.

Bill C-93 is an important step in acknowledging the harms caused by tough drug policies and their adverse effects on indigenous women, especially indigenous women who are poor and convicted of minor offences. Unfortunately, the effects of the bill will go unrealized for many indigenous women with criminal records for simple possession of cannabis. Simply put, the bill remains inaccessible for indigenous women who are poor and have administration of justice issues associated with their simple possession of cannabis conviction.

NWAC ultimately recommends that Bill C-93 be used to expunge criminal records for simple possession of cannabis and related administration of justice offences. In the alternative, NWAC puts forward the following three recommendations.

The first is to correct historical injustice. It is acknowledged in the House that the prohibition of cannabis was bad policy. There is an acknowledgement by the Liberal Party that indigenous people have been “policed differently, convicted differently and managed by the courts differently”, and that these criminal records have a disproportionate impact on youth from poor communities, racialized communities and indigenous communities.

At NWAC we know that indigenous women are much less likely to escape the notice of the criminal justice system. We know that cannabis used to be legal in Canada. It was legal until cannabis used to be associated with people of colour and considered so dangerous that increased law enforcement and police powers were necessary to contain its use.

Let's correct these historical injustices and interpret this bill in a way that rights these historical wrongs.

I borrowed language from the preamble in Bill C-415, but made a few additions. I recommend that the preamble read the way it does on page 3, but I would just add to the second paragraph the following:

And whereas the Supreme Court of Canada in R. v. Gladue and R. v. Ipeelee indicates that indigenous people and communities face racism and systemic discrimination in the criminal justice system

In the last paragraph, I would add that these convictions have had a negative impact not only on their employment prospects but also on custody and access to children.

Recommendation number 2 deals with the need to account for administration of justice offences, a lived reality for criminalized indigenous women. As a group, women's crimes tend to be on the lower end of seriousness. Over half of women's crimes are property crimes or administration of justice offences. Administration of justice offences are criminal offences, such as failure to attend court and failure to comply with conditions, to name a few. A full list of offences is on pages 4 and 5 of NWAC's recommendations.

Administration of justice offences are also known as the “revolving door of crime”, because it's harder for people charged with these offences to leave the criminal justice system. This is especially the case for criminalized indigenous women. Charges against females accused of administration of justice offences are growing faster than charges against males.

Administration of justice offences can be linked to indigenous women's marginalization. The lived reality for criminalized indigenous women is that they do not have the support or means to comply with the criminal justice system. This is not an excuse for their behaviour, but is a reality. For example, indigenous women in remote communities may be unable to get to a distant town where the court is located, and then may face several failure to appear breaches. Another person may unintentionally breach their bail conditions if they are homeless and do not get their court notices. When an indigenous woman is ordered not to attend her residence as a condition of judicial and term release, and there is no alternative housing or community support available to her, she is forced to violate that order to find shelter. As a result, indigenous people and marginalized Canadians are more likely to be charged, and if released on bail, are more likely to be subject to stricter and more impossible conditions.

All of these administration of justice charges add to indigenous women's criminal records and set them up for failure. As it stands, indigenous women who are initially convicted of simple possession of cannabis and amass these administration of justice offences are not eligible to apply or receive a record suspension under Bill C-93.

That's why NWAC recommends that Bill C-93 allow people with simple possession of cannabis convictions and administration of justice offences associated with simple possession of cannabis to apply for and receive criminal record suspensions for both the simple possession of cannabis convictions and any of the associated administration of justice offences.

My last recommendation is to increase access to justice. In light of poverty and administration of justice offences plaguing racialized and marginalized groups affected by the Cannabis Act, NWAC recommends that people who have not completed their sentence for an offence under subsection 4(3.1) be able to apply for criminal record suspensions. It does not make sense for people to continue sentences for conduct that is now legal. This amendment would ensure that people in poverty who cannot afford to pay outstanding fines would have the benefit of Bill C-93.

For the law to positively impact criminalized indigenous women, a gender-based understanding of Canada's history of racism and systemic discrimination towards indigenous people must be embedded in Bill C-93. The criminalization of indigenous women is one of the legacies of colonization. Indigenous women who are typically criminalized for simple possession of cannabis offences tend to be in poverty, are over-policed, and linger in the criminal justice system because of administration of justice offences.

Criminalized indigenous women are set up to fail in this criminal justice system. By allowing people to no longer be clouded by a criminal record for an act that is now legal, regardless of whether they have finished their sentences, Canada now has an opportunity to take a step towards righting these historical wrongs.

Thank you very much for your time. I look forward to our discussion on this very important issue.

[The Chair, Liberal, John McKay]

Thank you, Ms. Finestone.

Mr. Cudjoe, thank you.

Mr. Graham, seven minutes.

[David Graham, Liberal, Laurentides—Labelle, QC]

Thank you. I'm going to start with Mr. Cudjoe.

You made a comment very early on that the following question is often asked, namely, have you pleaded guilty to a criminal offence? I had not run into that before. Does that not run afoul of human rights legislation?

[Gordon Cudjoe]

Yes. If it does, if it's not been challenged—and the point is that we're talking about young kids filling out applications for Walmart and other places like that, who will not have the legal resources to challenge that.... It would take a group, for example, the Black Legal Action Centre, or something—to challenge that. That question can be changed, on the next form, to something to get around that.

So it may run afoul of human rights-ization. I believe it does. I believe any question that seeks to get around conditional discharges and absolute discharges does run afoul of that. But I have seen three or four variations of that charge, and in actual fact, I believe one was from a government agency, which would be OMVIC. The OMVIC form for a car salesman has a very similar question that doesn't allow you to avoid pointing out a conditional discharge, which would have been done 10 years ago.

[David Graham, Liberal, Laurentides—Labelle, QC]

Or there's the way one is asked at the American border: Have ever been arrested?

[Gordon Cudjoe]

Thank you.

[David Graham, Liberal, Laurentides—Labelle, QC]

Great. Thank you.

I just have some questions for you, Ms. Finestone. You mentioned the addition of a preamble. Does a preamble have any weight in law?

[Elana Finestone]

It helps people interpret what the intent of the law is. So when we interpret this legislation, we would do it in a way that acknowledges historical injustices, which would be a way of correcting those injustices.

[David Graham, Liberal, Laurentides—Labelle, QC]

You mentioned in your comments that you didn't want to go over the details in front of us, but for the record, could you just go over the four or five quickly and whether you want, for the sake of argument, each to be forgiven automatically or each one subjectively? Do we have a way of judging if a pardon for the additional offences should be automatic or subjective by application?

[Elana Finestone]

We would like them to be automatic. Would you like me to go over what's on page 4 to 5?

[David Graham, Liberal, Laurentides—Labelle, QC]

Very quickly, because we have five or six pieces here, it would be nice to—

[Elana Finestone]

Oh, sure.

[David Graham, Liberal, Laurentides—Labelle, QC]

—have a background on each one, why that one is there and not another one.

[Elana Finestone]

Sure.

I looked at the Criminal Code offences that—

[David Graham, Liberal, Laurentides—Labelle, QC]

Are common.

[Elana Finestone]

—would be common, just for things like cannabis—not for any sexual offences, because again I'd like to bring us back to talking about cannabis.

For example, we have subsection 145(2) of the Criminal Code, dealing with failure to attend court; subsection 145(3), failure to comply with the condition of undertaking or recognizance; subsection 145(4), failure to appear or to comply with summons; subsection 145(5), failure to comply with appearance notice or promise to appear; and then subsection 733.1(1), failure to comply with a probation order.

I defined administration of justice offences just for the purpose of subclause 4(3.1) of the bill, just so we know that we're talking strictly about simple possession of cannabis when it comes to criminal records, and I included those provisions in the definition.

Then I made amendments, which you'll see starting on page 6, that whereas, as the bill stands, people wouldn't be able to apply for a criminal record suspension if they commit another offence, this would say that if it's an administration of justice offence related to simple possession of cannabis, then they would be able to apply.

Then on the next page where we talk about receiving a record suspension, I made amendments so that it would say something to the effect that people could receive a record suspension not only for the simple possession of cannabis but also for the administration of justice offences associated with it. For example, if someone is convicted or charged with simple possession of cannabis but then doesn't show up for court just for that charge, not for anything else—again just talking about cannabis—then that would also be taken off.

It's really quite meaningless if you just take away one part of the record but there's still a slew of administration of justice offences listed, which would be the case for marginalized and racialized people.