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C-66, Expungement of Historically Unjust Convictions Bill. Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Cormier, seconded by the Honourable Senator Wetston, for the third reading of Bill C-66, An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts.

Hon. Serge Joyal: Honourable senators, I would like to say, at the outset, that I support the principle of Bill C-66, which is, according to its title, an act that establishes a procedure for expunging certain historically unjust convictions of people of the same sex engaged in sexual relationships, but I came to the conclusion that this bill is flawed and that it breaches section 15(1) of the Charter of Rights and Freedoms.

I will explain why. I listened very carefully to Senator Cormier when he introduced the bill. I also, of course, listened to Senator Cordy, when she intervened last week. I was not in the chamber yesterday, but I read the speech of Senator Lankin yesterday. I read the testimony of the various witnesses who were called upon to testify when the Human Rights Committee reviewed this legislation.

When I start thinking about that bill and realize that so many people had reservations about the bill, the bill in itself is right because it allows a certain number of people who have been found guilty of sexual encounters between same-sex people to have their record expunged, but it leaves, at the same time, another group of people who have had exactly the same conviction because they have engaged in consensual same-sex relationships. But those people are left aside, and the bill does not provide for anything particular to address their concerns, even though they are in exactly the same class of people who have been found guilty and those who want to have access to the expungement procedure to have their names and reputations cleared and even to have their heirs, after they are dead, go to the parole board and clear their reputation for the rest of the family history or their neighbours or friends.

I started reading the decisions of the Supreme Court in relation to how section 15(1) of the Charter works. Or what are the principles under section 15(1) of the Charter, and how can they be applied in the context of that bill? Let me read section 15(1) of the Charter:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In other words, everybody is entitled to the same benefit of the law, and there is no doubt that Bill C-66 establishes a benefit of the law for a certain group of people engaged in sexual relationships among consenting persons and so forth, as the criteria described in clause 25 of the bill says, but some others found guilty in the same context are left out of the benefit of the bill. Senator Lankin, Senator Cordy, the Prime Minister himself in the statement, recognized quite clearly that the people who were arrested in the bathhouse raids in the 1970s and 1980s are in that group of people who have been historically unjustly condemned.

So I said to myself, “What are the principles at stake here?” How can our system address this issue? I went back to a decision of Madam Justice McLachlin in 1993 in the Rodriguez case. For those of you who are old enough, like me, to remember the Rodriguez case, let me read to you the criteria that Madam Justice McLachlin established:

The only question is whether Parliament, having chosen to act in this sensitive area, touching the autonomy of people over their bodies, has done so in a way which is fundamentally fair to all.

I repeat, “in a way which is fundamentally fair to all.” The focus is not on why Parliament has acted but on the way in which it has acted. So the question, honourable senators, is this: How is Bill C-66 acting in relation to the same group of peoples who have been historically unjustly condemned? The bill, unfortunately, makes a distinction between a certain group of them, according to a certain section of the Criminal Code, and left the other one in limbo. I quote clause 23; the bill states quite clearly that, in order to provide for expungement of conviction:

Subject to the conditions referred to in subsection (2), the Governor in Council may, by order, add to the schedule any item or portion of an item.

In other words, it is left to the discretion of the Governor General, open-ended. There is no time frame. There is no additional criteria to be satisfied as the bill provides. It just leaves the discretion to the Governor General in council one day, sometime, to decide if those people who have been historically unjustly treated will benefit from the expungement of their record. The jurisprudence is pretty clear. When there is discrimination based on section 15(1) of the Charter, which I just read to you, which has the same benefit of the law, the court has established criteria to measure that discrimination. In fact the most recent case is quite fortunate because it happened less than 20 days ago, in a decision of the court on May 10, 2018, Centrale des syndicats du Québec and the Confederation of National Trade Unions, and Attorneys General of Quebec and Ontario.

And Justice Abella, who wrote the majority decisions, established quite clearly at paragraph 22, less than two weeks ago, the criteria to measure discrimination under 15(1), that is, to deny a person the same benefit of the law, a person who is in the same category as all the others. The justice wrote:

When assessing a claim under s. 15(1) , this Court’s jurisprudence establishes a two-step approach: Does the challenged law, on its face or in its impact, draw a distinction based on an enumerated or analogous ground, and, if so, does it impose “burdens or [deny] a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating . . . disadvantage”, including “historical” disadvantage?

“Historical disadvantage,” the very clear words that are included in Bill C-66.

So the bill’s objective is sound. It establishes a procedure to expunge criminal records, but only for a group of same-sex people, not for another group, those who have been arrested during the bath raids. The statistics have been provided by Senator Cordy: 1,200 of them found in a bawdy house, 53 accused of indecent action and 61 others for gross indecency.

So in other words, all those people who have been treated unfairly because the decisions of the court that I mentioned at second reading, the Labaye decision and the Bedford decision, established the criteria that when people engage in a consensual same-sex relationship in the particular context of the interpretation of the Criminal Code by the Supreme Court, they are no longer found guilty. There are no more bathhouse raids. There are no more people arrested for consensual sex in the clubs exchangiste. That’s very clearly established by jurisprudence.

So, honourable senators, this is a very big concern, and I took the initiative of calling some of the people who are denied access to this bill. I said to them, “You are in a dear situation: This bill discriminates against you because you are part of the class of people who have been found guilty of an offence that is no longer an offence, but we have decided that in that kind of offence, we are going to bet you won’t benefit from the expungement, so you are doubly discriminated against.”

At the moment, as Justice McLaughlin has clearly established, what is important is not why Parliament has acted, but the way in which it has acted. On the way we are acting with Bill C-66, by denying those who have been convicted of a sexual offence in a consensual same-sex relationship, as they are defined in clause 25 of the bill — and it states that the following criteria must be satisfied:

(a) the activity for which the person was convicted was between persons of the same sex;

(b) the persons other than the person who was convicted had given their consent to participate in the activity; and

(c) the persons who participated in the activity were 16 years of age or older at the time the activity occurred . . . .

There is a problem with that limit of 16 years of age because in earlier times, before 2005, 14 was the age of consent. I hope my colleague Senator Andreychuk will address this issue. I know that Senator Lankin has addressed it.

So there is, in other words, another rachet of discrimination that also is part of that double discrimination that we impose on people who found themselves raided in the bathhouse raids of the 1970s and 1980s.

Honourable senators, this is very serious. We’re denying a benefit without establishing any kind of deadline whereby their situation will be corrected and whereby they will have access to the procedure to get their criminal record expunged.

Again, the Supreme Court — and this will be my last quotation because I don’t want to bury you with quotations of the Supreme Court — has quite clearly established, when there is discrimination against a person, how that could be addressed and be admissible under section 1 of the Charter.

I read here the pronouncement of former Justice McLachlin, again in the decision that I was quoting two weeks ago. Here is what Justice McLachlin mentioned when there is discrimination under section 15(1). How can we offset that by the criteria of a reasonable society?

Justice McLachlin established three criteria to satisfy:

The Attorney General at the outset must establish a pressing and substantial objective for delaying the right and disentitling affected women from access to pay equity, exacerbated here by a lack of retroactive corrections under the Act.

In other words, is there a pressing and substantial objective today to deny to the people found guilty 40 years ago the same benefit of the others who are covered by other sections of the Criminal Code? That’s the first criteria. The answer to that question in my opinion is no.

The second one is the following:

Minimal impairment cannot be established simply by saying that a lengthy delay was required full-stop . . . .

In other words, when the government legislates and impinges on the rights of a person, the government has to establish that there is a minimal impairment initiative, that it has taken all the precautions and all the attention to make sure that there is minimal impairment.

The Hon. the Speaker: Senator Joyal. I’m sorry, but your time has expired. Are you asking for five more minutes?

Senator Joyal: Yes.

The Hon. the Speaker: Is leave granted?

Hon. Senators: Yes.

Senator Joyal: Justice McLachlin stated that:

Minimal impairment cannot be established simply by saying that a lengthy delay was required . . . .

In other words, we need more time. That’s what clause 23 of the bill says. The Governor-in-Council may later consider to adjust the procedure and give the same rights to those who were raided as to the other ones covered by other sections of the code.

Finally, the question is: Is the intervention proportional to the public interest in denying them a remedy? In other words, what is the public interest today to deny access to the same procedure of expungement as those that are covered by the bill?

So in my opinion, the three criteria that were established and repeated by the Supreme Court two weeks ago don’t save the discrimination that is unfortunately perpetuated by the bill for a group of people who should have access exactly in the same context to those who are covered in the annex of the bill.

Let me conclude with this: Fortunately, we are a democratic country and fortunately there is a court challenge program. The Court Challenges Program that was announced last February — I checked it; it might have avoided your attention — covers section 15 of the Charter. In other words, a person who is denied the benefit of Bill C-66 can have access to the Court Challenges Program, which provides money to have the legal fees vetted under very specific criteria, have access to that money to challenge Bill C-66 and have the same benefit of the law as those who are covered. Again, I won’t mention the fact that the age of consent has been changed in the bill from the age that was the legal age limit when those accusations were launched some years ago. As you know, the age of consent was changed in 2005, if I remember well.

In other words, honourable senators, this is a bill that seems to be good in its intention, and I will vote for it, but I will vote for it with the commitment that I will support any initiative in court cases in Canada that will challenge the fact that this bill maintains discrimination against a group of lesbian and gay people who should be covered and who should be entitled to exactly the same benefit, the way that the Prime Minister has said that today those bathhouse raids would never happen again.

Honourable senators, I want to thank the committee, under the chairmanship of Senator Cormier, for giving the witnesses an opportunity to appear — they were denied in the other place — and for ensuring that they had an opportunity through the questions of senators around the table to highlight those points and to help us understand what we are voting on. In fact, it is always to remedy a wrong, but, as I have said, we have remedied only half of the wrong. We have covered half of the people who were originally intended to benefit from this procedure.

This is the reflection, honourable senators, that I wanted to bring to your attention. I think this is a very important issue because it calls upon section 15 of the Charter, a section that covers equality — and I’m looking at Senator McPhedran — equality of access for women to the same salary, the same remuneration. When you deny equality under section 15, as the Supreme Court has said recently, there have to be very clear criteria to satisfy if you want to save that inequality that in this case is a concern of the gay and lesbian people.

Thank you, honourable senators, very much. I appreciate your attention.