The Power of Perspectives

The Canadian Bar Association

Kim Covert

Bill C-66 not a complete fix for historically unjust convictions

May 17 2018 17 May 2018

 

We’ve come a long way, baby. Time passes and society evolves and so do its attitudes to certain behaviour. Some laws are slower to change than others, but once something becomes more socially accepted, the laws regulating that behaviour gradually fall off the books.

The convictions under those laws, however, are another matter.

Many members of the LGBTQ2S community still have a criminal record for activities that have not been illegal for some time. It is these people whom Bill C-66, the Expungement of Historically Unjust Convictions Act, is supposed to help.

In a submission to the Senate Committee on Human Rights, the CBA’s Criminal Justice and Sexual Orientation and Gender Identity Community Sections say they support the intention of the bill, but note seven areas where it can be improved.

  • The bill should specifically require that the requirement for expungement also include consideration of the law of consent and age of consent at the time of the conviction, otherwise the “result will be that people may be ineligible for expungement under Bill C-66 even if their conduct would have been legal at the time, if not for the very discrimination targeted by the bill.”
  • It should allow an application for expungement to be made for someone who is currently incapacitated if it doesn’t appear to be against his or her wishes.
  • When it comes to people who may apply for expungement on behalf of another, the Sections say “any other individual” should be defined in the Act or Regulation, and should be as inclusive as possible, given that many in the LGBTQ2S community do not have “traditional” family or community ties.
  • The expungement should be not just of the conviction, but should also include the destruction of records and fingerprints filed with the Canadian Police Information Centre in relation to the conviction. “The definition of expungement should be broad enough to keep pace with ongoing changes in technology and innovations in digital record-keeping.
  • The law should allow for consequences if members of the RCMP, CPIC and local police services do not comply.
  • Regulations should limit and guide the manner in which the Parole Board conducts inquiries. “This means respecting confidentiality and sensitivity, and not unnecessarily pursuing all facts and information connected to the incidents and persons involved.”
  • The list of offences in the Schedule is shorter than originally suggested, the Sections say, and “offers less redress than is necessary and just. History illustrates that LGBTQ2S persons have been prosecuted using every offence possible – not just those most obvious in 2018.”

Together with the Prime Minister’s apology, Bill C-66 is an important first step in “redressing the harms experienced by LGBTQ2S people in Canada as a result of federal legislation, policies and practices, and particularly those who were unfairly criminalized by unjust laws and actions,” the Sections say.

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