Public Safety Committee on May 27th, 2019

[The Chair, Liberal, John McKay]

Ladies and gentlemen, it's close enough to 3:30 to get started. I see quorum, so I will bring the meeting to order.

We are dealing with Bill C-93 clause by clause.

The first clause has no amendments.

(Clause 1 agreed to)

(On clause 2)

On clause 2 we have amendment NDP-1, but I have received a note from the legislative clerk that we want to deal with NDP-1 and NDP-2 together. Consequential to NDP-2, the suggested ruling is that it is inadmissible, which would render NDP-1 null.

As this is, in effect, a discussion about the scope of the bill, I'm perfectly prepared to hear Mr. Dubé's arguments as to why both amendments are within the scope of the bill.

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

Thank you, Chair.

NDP-1 and NDP-2 both seek to do something we heard from, dare I say, all witnesses—or nearly all, certainly if we exclude the minister—which is to make the process automatic. In other words, instead of putting the burden on individuals seeking to apply.... We did a lot of research on this, my office in particular, because there were a few back-and-forths about certain considerations.

For example, with regard to the Privacy Act, the exemption already exists with the Parole Board to be able to do the work, instead of asking marginalized Canadians who have been saddled with these records for something that is now legal to be doing the work.

Ultimately, I think it's within the scope of the bill, because we'd be putting the onus on the Parole Board as opposed to on Canadians. Especially if it's not an issue of royal recommendation. In other words, if we're not talking about an issue of money, I think the mechanism for the process that's been created by this bill, which seeks to remediate what the minister refuses to qualify as a historical injustice, is certainly well within our prerogative as a committee, if not something that unfortunately could have been done from the get-go in the drafting of the legislation.

As I said, there was enough back and forth with people who are much smarter than me on this to know that the amendment covers all of our bases in terms of giving the appropriate powers to the Parole Board.

[The Chair, Liberal, John McKay]

Do any other colleagues have any comments on the admissibility or inadmissibility of amendment NDP-2? Do the witnesses have any comments? Is there any other debate?

Yes, Mr. Dubé.

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

I would seek a clear understanding of why it's beyond the scope of the bill. We haven't even gotten to the discussion about expungement yet. This is simply making the record suspension process automatic, and giving the appropriate powers to the Parole Board.

Could any clarification be provided there?

[The Chair, Liberal, John McKay]

My reaction—and I will turn to the clerk for some clarification here—is that it's a positive obligation on the part of the Parole Board, requiring positive actions. While I agree that we heard a lot of evidence to the effect that this process could be made a lot more, if you will, user friendly by positive actions by the board, it is at this point apparently beyond the scope of the bill.

I will let the legislative clerk weigh in on it.

[William Stephenson, Legislative Clerk]

Essentially, as Mr. McKay said, in this case the scope of the bill is fairly narrow. It creates an onus on the applicant and allows them to apply for a record suspension. It also waives the fee. Because of that fairly narrow scope in this bill, introducing a new concept that would essentially create a positive obligation on the board is beyond the scope of the bill.

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

I'm just wondering because I can think of tons of amendments that create positive obligations on other entities. I'm not sure I'm following the argument here. For many pieces of legislation that I've studied in committee, we adopted amendments that would clearly force different bodies to undertake actions that were not initially codified in the bill, so I'm not sure if I'm following what the distinction is there.

[William Stephenson]

In other circumstances, there are examples of creating an obligation to report back to the House or something like that, and it's still within what the department does and within what the bill foresees.

In this case, the concept is clearly to allow the applicants to apply on their own initiative. It's kind of meant to restrain the administrative action or the administrative onus, from what I understand. Maybe officials would like to weigh in on that. In this case, the issue of causing the board to identify those records on its own is a new concept.

[The Chair, Liberal, John McKay]

Do officials want to weigh in?

Mr. Broom.

[Ian Broom, Acting Director General, Policy and Operations, Parole Board of Canada]

Sure, I can weigh in. Thank you very much.

Under this amendment, from the Parole Board of Canada's perspective, we don't currently have the technological capacity to implement what is outlined in this motion. We'd need to consult with partners. We would want to verify some of the privacy and consent implications that could be involved in automatically ordering a records suspension.

As was mentioned, current process now is that applications are received with supporting documents. The onus is placed on the applicant. Examples would be court documents that would outline the nature of the conviction, dispositions involved, or whether or not the sentence was complete. We don't have any memorandum of understanding or information-sharing framework or infrastructure in place that would permit us to do that when conducting inquiries. I think, from the board's perspective of what we could implement, there are a number of challenges that we'd want to assess.

[The Chair, Liberal, John McKay]

Mr. Dubé.

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

Thank you, Chair.

As for the privacy considerations, as far as I've understood, given that the records suspension branch of the Parole Board is an investigative body, they do have Privacy Act exemptions. We spoke with them, and they confirmed they have access to CPIC, so I do find it a bit unfortunate that we're basically saying it would be too much work and we're not accepting to make it automatic, when the reality is, as has been pointed out by numerous people, that the burden is then put onto marginalized Canadians.

I would also just ask for clarification from the clerk, perhaps. I think back to Bill C-83 when we were studying SIUs and I believe amendments were adopted that created additional criteria for health care professional reviews, for example. I'm not clear on the distinction that creating additional actions on the part of public servants in one instance would be acceptable, but here, because we're prescribing the process in a certain way—even though the end result this amendment seeks would still be one of these individuals having records suspensions—it would no longer be within the scope of the bill. I mean, it's titled “no-cost, expedited”. Ultimately is that what we're relying on, the title? It doesn't seem to make much sense to me.

[The Chair, Liberal, John McKay]

The general argument is that, when you're going beyond the scope, you're going beyond the purpose of the bill. That's the general argument. I agree that we are down to some fairly narrow points at this point, but I'm perfectly open to any other interpretation or information as to why we would consider this to be beyond the scope.

[William Stephenson]

In the case of adding criteria to something in a bill, when you have a list of criteria, you can always play around within the scope of what's required. In this case, we're going beyond just requirements and giving the board additional responsibility, creating an additional administrative burden. In arriving at our analysis of the bill, we looked at the summary of the bill and we looked to the way the bill is drafted.

The summary of the bill reads as follows:

This enactment amends the Criminal Records Act to, among other things, allow persons who have been convicted under the Controlled Drugs and Substances Act, the Narcotic Control Act and the National Defence Act only of simple possession of cannabis offences committed before October 17, 2018 to apply for a record suspension without being subject to the period required by the Criminal Records Act for other offences or to the fee that is otherwise payable in applying for a suspension.

Basically, the bill does two fairly narrow things. It allows people to apply for a record suspension without being subject to the period required by the Criminal Records Act for other offences, and it waives the fee that's otherwise payable in applying for that suspension. That is what guides us in our analysis, as well as the way the bill is drafted. You'll note there are clauses that specify that the onus is on the applicant to prove various things.

That's how we understand the scope of the bill.

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

My concluding argument would be that this just proves the point that there was no actual political will to help these Canadians who are saddled with these records.

It's pretty apparent to me—and we've heard now non-partisan analysis—that the onus is on these applicants. I think it's quite disappointing and I would say that, to me, it just defeats the entire purpose. We're basically telling marginalized Canadians to figure it out. We say, “Don't worry, you won't be charged on our end”, but we've talked about the other fees that'll come with it. I find this extremely disappointing.

With respect to you, Chair, I would move to challenge the chair's ruling if that is what it is.

[The Chair, Liberal, John McKay]

The chair, reluctantly, rules that NDP-2 is inadmissible, therefore making NDP-1 null.

I do take note of the arguments that you've put forward, which I think, frankly, are good arguments and consistent with the evidence, but the interpretation on the scope of the bill is the interpretation on the scope of the bill. There are certain places that even well-intentioned legislators can't go.

With that, the chair is challenged. I think that's a straight-up, straight-down vote.

Would you like a recorded vote?

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

Yes, a recorded vote.

(Ruling of the chair sustained: yeas 8; nays 1)

[The Chair, Liberal, John McKay]

The ruling of the chair prevails. With that, there are no amendments to clause 2.

(Clause 2 agreed to on division)

(On clause 3)

[The Chair, Liberal, John McKay]

We now move on to clause 3.

We have Liberal-1 standing in the name of Ms. Dabrusin.

Ms. Dabrusin, would you explain your amendment to the committee, please.

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

Yes. In fact, I have a series of amendments. They're all related, so you're going to hear me say the same things.

One of the things that really stood out for me was hearing people talk about the fact that we have now legalized simple possession of cannabis, yet they might still have outstanding fines they have not paid. They might have difficulty covering those costs, and that could pose a barrier to people who are applying for record suspensions.

This amendment, Liberal-1, allows people to get a record suspension for cannabis possession even if they have outstanding fines. What it does as well is allow the waiting period for cannabis possession to be waived, even if the person has other offences on their record that they have met the waiting period for. If they've met the waiting period on the other offences, but they haven't met the waiting period that would normally apply for simple possession, we're saying we're going to waive that so that they can apply for it. But the fee is not waived for the second scenario.

[The Chair, Liberal, John McKay]

Matthew, go ahead.

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

I'm seeking confirmation of how I read this amendment, because I certainly support the intention to make it so that individuals who have unpaid fines or what they call “time served remaining” be able to access this process regardless, in keeping with the testimony we heard.

However, I look at proposed subparagraph (iv), under paragraph (b) “other than”, it says “sections 734.5 or 734.6 of the Criminal Code or section 145.1 of the National Defence Act, in respect of any fine or victim surcharge imposed for any offence referred to in Schedule 3”.

My understanding of that was that it means that, when certain organizations might be doing background checks.... Colleagues will recall that when there were changes brought in by the previous government so that individuals obtaining record suspensions who, for example, were on the sex offender registry, those things would still appear when doing vulnerable checks, background checks and things of that nature. My understanding, reading this amendment, is that even though we're waiving the need to pay the fine, it would still be uncoverable through a background check that the fine remained unpaid, which seems to me to defeat the purpose of the record suspension in the first place. I'm perhaps seeking clarity from smarter people than me to confirm that we have indeed understood that correctly.

[The Chair, Liberal, John McKay]

I don't think there's anybody in the room who's smarter than you. We're in good shape.

I didn't mean that as an insult, by the way.

Does Ms. Dabrusin want to respond before I go to Mr. Motz on that particular point, or do we want to go to the officials?

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

I understood that Mr. Dubé was asking the officials to weigh in on whether his interpretation was correct in the first instance.

[The Chair, Liberal, John McKay]

It is your amendment, so I wanted to give you an opportunity.