Public Safety Committee on Dec. 11th, 2017

[Angela Connidis]

I don't think it will be as easy to remove through order in council. I think that would require a legislative amendment. The criteria are in the act for this. The offences are in the act at this point.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thanks very much. I don't have a lot of time.

There's some concern about presenting proof, and you've addressed that by allowing declarations. I think there's some concern that it mixes up administrative procedures with court procedures, and people start talking about the onus of proof.

I just want to test what I think I heard from you. In the absence of documents or evidence that proves non-consent, a statement is anticipated to be sufficient evidence that it was consensual. Would that represent something like you were saying?

[Kathy Thompson]

Because those offences are historical offences—as I said, buggery and gross indecency have not been part of the Criminal Code in over 30 years—it may be difficult for individuals to obtain court or police records. In some cases, it may not be, but if that is the case, as part of their application they would have to demonstrate that they did try to obtain those records and provide an affidavit or a solemn declaration that those records don't exist. Also, the act provides authority for the Parole Board to conduct their own verifications as required.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

There seems to be a bit of a problem in that for most of the offences consent wasn't germane to the conviction. Even if there were a conviction record, it might not ever have dealt with the question of consent, because these offences weren't about consent. That's just a concern that I raise.

Again, it seems that clause 24 would allow the Governor in Council to actually fix criteria that would deal with those kinds of questions.

[Kathy Thompson]

Also, if I may add to this, when providing for the application, in addition to the records—because that is a very good point that often the charge record doesn't indicate whether it was consensual or not—as part of their application, they would have to provide evidence and demonstrate and indicate that it was consensual.

[The Chair, Liberal, John McKay]

Thank you, Mr. Garrison.

Mr. Fragiskatos, please, you have seven minutes.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you, Chair.

Thank you to the witnesses for being here today.

I was at an event on the weekend in London, back in the riding. It was a Christmas choir event put on by the Pride Men's Chorus in London, Ontario, and there was a great deal of excitement about what's moving along here.

I also want to commend my colleague across the way, who I don't know terribly well, but I do know that he has worked on these issues for most of his life.

Thank you very much, Randall, for what you've done.

My first question has been touched on already in terms of international experiences. Australia is mentioned, as are New Zealand, the United Kingdom, and Germany. These initiatives have really taken off in these countries very recently as well, with all of them in 2017, if I'm not mistaken. To the extent that we are now moving along with Bill C-66, can you comment on how we have looked at those experiences in terms of legislation and have sought to build into this approach best practices and lessons learned from their very early approach?

[Kathy Thompson]

Yes, we absolutely have looked at those fairly recent experiences of other countries and particularly, as I've said, all those you've mentioned: Australia, New Zealand, the U.K., including England and Wales, and Germany. We've tried to understand how they approached the expungement scheme from their perspective. It helped to inform this, for example. I should also mention and give credit to the Egale report, which also helped inform how we set out to address the objectives for the proposed legislation.

We were looking at how most of these regimes dealt with providing for posthumous expungement, recognizing the very historical nature of most of these convictions. We also looked at and tried to understand some of the challenges related to providing or obtaining evidence. We therefore looked at how they provided for individuals to provide solemn declarations or sworn affidavits to ensure we understood how they met the criteria.

We were very much informed by these other regimes that have gone forward and developed expungement regimes.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you very much.

In your statement, Ms. Thompson, you noted, “Given the historical nature of these offences, if court or police records are not available, sworn statements or solemn declarations may be accepted as evidence.” Is there an estimate at this point of the number of court or police records that might not be available? For example, in looking at the situation in Germany, Australia, New Zealand, and the U.K., has this been a significant challenge?

[Kathy Thompson]

We know that in RCMP repositories there are more than 9,000 records of convictions, so it's difficult to know how many will still have records in local jurisdictions available to them. Sometimes it's at different levels, for example, or police stations may still have those records. It's difficult to know how many records will be available. We know that there are more than 9,000 for these charges in RCMP repositories, so that's what we have prepared and built the regime for.

With respect to other international regimes, I might ask Angela to speak to that.

[Angela Connidis]

Sorry, I don't have anything to add. I think Kathy has actually covered what we have with that.

[Peter Fragiskatos, Liberal, London North Centre, ON]

That's fine.

With the remaining time, I know my colleague Mr. Spengemann has some questions.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thanks very much, Mr. Chair. How much time do I have?

[The Chair, Liberal, John McKay]

You have about three minutes left. We actually will get into a second round, but it is my intention to cut the questioning off at around 4:15 or 4:20 to give time for clause-by-clause consideration.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Okay. Thanks very much, Mr. Chair.

Thank you for being with us today.

I have two fairly precise and hopefully quick questions. Have you had an opportunity to consult on the bill with stakeholders in the LGBTQ2 community?

[Kathy Thompson]

We did have an opportunity to consult with the Treasury Board office responsible for liaising with the LGBTQ2 community. Also, we had an opportunity to consult with one of the LGBTQ2 historians to understand the historical nature of some of these offences and some of the context with respect to the charges that were laid.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Okay.

Have any concerns been raised or have any views come to your attention specifically from transgender Canadians, perhaps specifically with respect to the first criterion of the tests that have to be met?

[Kathy Thompson]

Not that we're aware of.

Also, with respect to consultations, we undertook an online consultation with respect to the Criminal Records Act, and as part of that broader consultation, there was a question targeting the issue of historical injustice, and circuitously, expungement as well.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Is it your view that the bill as it's currently framed is flexible and sensitive enough that if there were concerns raised by transgender Canadians specifically in an application process, those circumstances could be addressed well enough and effectively enough?

[Kathy Thompson]

In my view, it would be, because we have allowed for that solemn declaration. As we said earlier, a lot of the convictions do not indicate the specific nature of the conviction, whether it was, for example, consensual or non-consensual. That's why we're asking for a little more information. I think there is enough flexibility in the regime we've built to allow for that information to come forward.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

That's helpful. Thank you.

With respect to the actual application process, is it your sense that the three-part test generates any kind of burden of proof akin to the bounds of probabilities or even beyond that?

What I'm getting at is the potential of some type of fee creeping in, even though there's no application fee per se, so that if somebody has to go through extensive steps of proving eligibility under the three criteria, they might actually have to retain counsel or some type of advisory process or services; or is it user-friendly enough that the applicant could establish the three criteria easily without onerous expense?

[Kathy Thompson]

That was certainly the intention in developing the legislation. I'll ask Talal to speak to the process.

[Talal Dakalbab]

When we speak about the fees, we're speaking about federal government fees, because we can't really waive other fees. I just want to be clear about that aspect.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Sure. Of course.

[Talal Dakalbab]

From our perspective, we're going to have a guide online and available on paper to help them, but there will be obviously some documents that they'll have to provide in order for the board to do the inquiries and verify the information. It doesn't totally remove the burden of providing documents or providing solemn declarations or statements. I can't speak to it, because it's really out of the jurisdiction of the federal government.