Public Safety Committee on May 6th, 2019

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I'm sorry to interrupt, but what the officials told us is that based on the current legislation, they estimate there will be approximately, in their best guess, 10,000 folks.

I want to get into something with a little more meat for both of you. Now, on the issue of the process of how this goes about, which is really what I think you were getting to in a minute if I had let you continue, every group that appeared here before us had an issue with the process. I would note that the Auditor General has repeatedly called out departments for implementing systems based on their processes as opposed to a process to serve Canadians in the best possible way.

In your opinion, does the process that is highlighted in this legislation hinder or help the Canadians who you interact with? Does this process of applying for this application align with the abilities of those who might need it most?

[Elana Finestone]

I would say that it hinders. I believe this committee made a report about how inaccessible criminal record suspensions are. Firstly, a lot of people don't know that they can make them, or they are duped into paying money—crazy amounts of money—when it's actually not that expensive.

I think the issue I was raising before is that a lot of people don't even know about the law. This is not the only issue on which I've spoken about and engaged with community members on a law that specifically affects indigenous communities and they've never heard of it.

If people are forced to apply all over again, I think that's why the numbers you're estimating are lower for the people who will actually use it. Right now, it's a fact: there is no access to justice for these groups that I am speaking about.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

They're not my numbers. They're numbers the officials provided to us.

[Elana Finestone]

Okay.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Mr. Cudjoe, do you have thoughts on that issue?

[Gordon Cudjoe]

I just have a couple of thoughts on it. In my personal practice, a lot of the people I represented were homeless, mentally ill or on the verge of being homeless. They also had very low levels of education. By not making it automatic, it won't help a lot of people who actually have been convicted on possession of marijuana charges. Rather, this bill will help those who are able to read and know what's happening in the legal system.

Very quickly, to go off that a bit, in Ontario, because legal aid is funded at so low a level and you have to be going to jail before you get legal aid, many people who started off in the criminal justice system on possession of marijuana charges did not have lawyers. They did the easiest thing that was possible for them and took the first deal they could get from the Crown. They did not challenge the search that led to the possession of marijuana and did not try to get anything like a conditional discharge because on that day that wasn't being offered. I ask that the committee look at this whole situation in light of that.

[The Chair, Liberal, John McKay]

We'll have to leave it there, Mr. Motz.

Mr. Cullen, welcome to the committee. You have seven minutes, please.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you, Chair, and thank you to both of our witnesses. It's illuminating.

I have what may be a unique experience in this. I grew up in Rexdale, and I now live in and represent a northern community in British Columbia. Friends of mine used to have a term for this when we were growing up: the crime was “walking while black”. Out in my neighbourhood, the chances of getting stopped and potentially picked up if you were young and black were dramatically higher. All of our stats support this. In Vancouver, indigenous people are seven times more likely than white people to be arrested. In Regina, they're nine times more likely to be arrested.

Mr. Cudjoe, I want to pick up on the point from my Conservative colleague. If a white middle-class kid gets picked up for possession and has access to a lawyer, the chances of their ending up with a criminal record or a secondary record of an administrative justice charge are much lower than those for somebody struggling with poverty, in a racialized community or in a marginalized community. Is that correct?

[Gordon Cudjoe]

That is correct, and that is one group that I focused on, because I had a number of those situations where most parents would not go to the police if they had found marijuana in their kids' clothing. What about the children who are wards of the CAS? All of those charges went straight to the police, and nine out of ten didn't have a lawyer.

The kid who grew up without parents is now ending up with a record disadvantage and did not have a chance from the start.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

If the Supreme Court has acknowledged that marginalized and racialized people face racism and systemic discrimination in the criminal justice system, would consulting with both of your organizations not have been essential if the government's intent was to attempt to prevent marginalized and racialized Canadians from facing that racism and systemic discrimination?

I'm confounded that we're at this stage, five weeks to go in a Parliament, when you have these vital amendments to a piece of legislation. The people who historically have been hurt by the criminal justice system—indigenous people, marginalized people and black Canadians—will now have a pardon system that will in effect not help them because of the circumstances in which they live.

Is this the bill that we're facing right now?

I'll start with you, Mr. Cudjoe, and then I'll turn to Ms. Finestone with a more particular question.

[Gordon Cudjoe]

I think you've made the point.

Many times I'm invited to the table. On this issue we were not. I suspect it's because other groups were included, and perhaps somebody thought I was not to be heard. I don't know.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

The Prime Minister's argument for this legislation when he was a candidate was particularly about the effects on marginalized and racialized groups within Canada who are disproportionally affected by marijuana laws.

Ms. Finestone, I want to challenge my Conservative colleague's friend about folks giving the “middle finger” to the justice system. I've seen cases in which administrative penalties have been put down on young native women who were eight hours from the court room in their home. They had no public transportation, no Greyhound and no money, and they failed to appear. Under that circumstance, a young native woman who is picked up in northern British Columbia for simple possession and who fails to appear is disqualified from receiving a pardon under this legislation. Is that correct?

[Elana Finestone]

That's correct.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Okay.

[Elana Finestone]

That's a very broad issue. I went to a conference on indigenous criminal justice after the Gladue decision a few weeks ago. They were talking about how they created this indigenous court on a reserve simply because they noticed that there were so many warrants for people for arrest, and people were not showing up to court simply because there was no public transport and they could not go. It's the reality.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I didn't see this in your notes. Does your organization support Bill C-415?

[Elana Finestone]

Yes.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

That's on expungement.

Mr. Cudjoe, are you of a similar orientation, that expungement would be a more effective way of leaving these charges fully in the past?

[Gordon Cudjoe]

I really believe that. I have to admit that I'm not fully aware of the cons of expungement, but I really believe these records should be expunged.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

To this point on the circular effect of the criminal justice system on a simple possession charge, an employer asks on employment forms, “Have you plead guilty to a criminal offence?” This a very typical question on that list of questions. Somebody who is able, a young black person in Toronto, Montreal or wherever, and has gone through and secured this relief through the pardon would have to answer that question in the affirmative, would they not?

[Gordon Cudjoe]

That is correct, which is why I scoured my brain to see what could be done. I got the recommendation from our committee that perhaps deeming them regulatory offences, which cover firearms acts and so many other acts, could work.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

This is a workaround you're attempting to make to this legislation that you weren't consulted on.

[Gordon Cudjoe]

That's correct.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

You imagine a scenario in which the Crown, in a second case or trial of some sort, would be able to say to the court, “There's something on this defendant's record, but we can't tell you what it is.”

[Gordon Cudjoe]

No, I was referring to when the criminal records check goes to the employer.