2nd Session, 43rd Parliament
Volume 152, Issue 37

Tuesday, May 4, 2021
The Honourable George J. Furey, Speaker

Criminal Records Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Pate, seconded by the Honourable Senator Galvez, for the second reading of Bill S-208, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today once again to lend my support to the tireless efforts of the Honourable Senator Kim Pate.

Bill S-208, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation aims to ensure that all Canadians, regardless of their past, have the opportunity to forge a brighter future for themselves and in turn our entire country.

As stated in clause 32.4 of the Canadian Human Rights Act, there is a strong Canadian principle that states

. . . that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

Under Bill S-208, under paragraphs 4(1)(a) and 4(1)(b), prisoners would be entitled to record suspensions after

(a) five years, in the case of an offence that is prosecuted by indictment or is a service offence for which the person was punished by a fine of more than $5,000, detention for more than six months, dismissal from Her Majesty’s service, imprisonment for more than six months or a punishment that is greater than imprisonment for less than two years in the scale of punishments set out in subsection 139(1) of the National Defence Act; or

(b), two years, in the case of an offence that is punishable on summary conviction or is a service offence other than a service offence referred to in paragraph 5 (a).

Honourable senators, I ask you to imagine for just a moment there was a piece of paper with every mistake you had made that was easily accessible to members of your community, which was a mandatory reading exercise for every one of your potential employers and for each and every teacher at the school your child attends. Further, imagine that it is routinely required to be revisited and reviewed prior to you being approved or denied a loan.

This is not an existence that prisoners have to imagine, nor is it exaggerated. It is the daily lived reality of virtually every Canadian who was once a prisoner, long after they have completed their sentence.

Indeed, many of us will know one question that is almost always present on employment and even medical forms, as well as part of prerequisite travel documentation is “Do you have a criminal record?” or even “Have you ever been convicted of a crime?”

No matter how heinous or egregious a crime is deemed by society, our collective social agreement is that the punishment for it is having to spend time in prison — a traumatizing and dehumanizing institutional environment that enforces exclusion and absolute isolation.

Before the COVID-19 challenges, I went with Senator Kim Pate to visit some prisons. I was taken aback by the terrible conditions that exist for prisoners. It has absolutely convinced me since then that they have paid their price when they go to prison. When they come out, they need another chance.

The punishment is justified through the perspective of forced rehabilitation. In fact, one of the primary founding principles of imprisonment was to re-educate a person so that they could one day rejoin their community in a more productive and healthy way.

The negative impacts of criminal records are immense. They are in direct contrast with the notion of being able to successfully rejoin society.

As the Criminal Records Act currently stands, record suspensions can be restrictively expensive and are hard fought for — if they are granted — while pardons have become immensely difficult to attain, regardless of a person’s particular sentence.

Honourable senators, the notion of applying a more lenient approach to past offences is not unprecedented. On the contrary, when the marijuana legislation became a Canadian reality, so did an amendment to the Criminal Records Act, an expedited process for record suspensions for simple possession of cannabis.

This amendment explicitly stated the 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 record required by the Criminal Records Act for other offences, or to the fee that is otherwise payable in applying for a suspension.

It is important for us to understand the context behind this new-found social acceptance of the crime of marijuana possession only. With clever campaign quips and accompanying legislative changes, marijuana was federally decriminalized in Canada. This shift in social acceptance, underpinned by empathetic and compassionate understanding, gave way to less punitive and more rehabilitative approaches to punishment for this crime. However, today criminal records associated with virtually all criminal offences continue to act as an X-mark on the lives — and indeed perceived value — of every person who has ever been criminalized.

Honourable senators, by now we know all too well about the disproportionate representation of racialized people in prisons across Canada’s provinces and territories — namely Black and Indigenous women, men and children.

This is clearly illustrated in my booklet The Invisible Visible Minority, specifically the section on institutionalization. In prisons and jails across the country, Black people are overrepresented by 300% versus their population, and for Indigenous people that number jumps to 500%.

Between 2015 and 2016, Black people accounted for 10% of Canada’s prisoners. Further, between 2018 and 2019, Indigenous people represented 28% of the country’s total prison population.

The Office of the Correctional Investigator echoed these concerns in its 2018-19 annual report, which highlighted that Indigenous women accounted for 56% of women designated maximum security risks and 31% of the minimum security population.

These disproportionate numbers of racialized people who are in prison, and the lifelong and far-reaching impacts of having a criminal record, further fuel the vicious cycle that is systemic racism.

Honourable senators, the irreparable damage that criminal records impose on prisoners lasts long after they endure the traumas of imprisonment. Prisoners are not asking for some grand mercy. They are simply asking for a chance to prove themselves and to demonstrate that they, too, have value and are worthy of a prosperous future.

In this respect, I ask you all to pass Bill S-208. Senators, at this point I would like to thank Senator Pate. Senator Pate, with your presence in the Senate you have done a tremendous job to educate we senators on the terrible situations in prison, and you never stop working on these issues. For that, I want to thank you.

I also want to take this opportunity to say to Senator Yonah Martin, this is a very difficult time for you, and I know I speak for all senators when I say to you we pray that your mother’s soul rests in peace and that you and your family get the strength and courage to get through this very difficult period.

(On motion of Senator Duncan, debate adjourned.)