Hon. Pierre-Hugues Boisvenu: My question is for the Leader of the Government in the Senate.

Last year, Quebec reported 26 femicides, two thirds of which occurred in a domestic violence context. Every year, the Quebec courts handle more than 20,000 cases of domestic violence, and in 90% of cases, women are the victims. Every year, police in Quebec receive more than 60,000 reports of domestic violence. In Canada, last year, 173 women were killed in a domestic violence context, not to mention the children.

In its seven years in office, why hasn’t Justin Trudeau’s Liberal government passed legislation to make women in Canada safer?

Senator Boisvenu: Senator Gold, please convey the following message to the Prime Minister: He may have adopted a strategy to reduce violence against women in Canada, but it has failed.

In 2021, in Quebec, a repeat offender awaiting trial on a domestic violence charge, a man with a lifelong record of 51 crimes, including 11 domestic violence convictions and three sexual assaults, was released after violating parole three times. A few days later, he murdered his wife.

Senator Gold, why, for the past seven years, has every bill passed by the Liberal government contributed to making women less safe, including Bill C-5, which will be passed soon? Please explain to me why every single bill has eroded women’s safety, making them less safe than they were seven years ago.

Hon. Pierre-Hugues Boisvenu: Honourable senators, I rise today to speak to Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation, which was introduced by the Honourable Kim Pate on November 24, 2021.

At the outset, I want to acknowledge Senator Pate’s tireless work in defending the rights of criminals. However, you will understand that my criticism of her bill stems from another aspect of the justice system, namely defending victims, victims’ families and their rights.

That being said, I have full confidence that your judgment will enable you to find the right balance in order to allow women and children to live in their communities without fear.

Bill S-212 is a major rewrite of the Criminal Records Act. According to Senator Pate, its objective is to make it easier for criminals to reintegrate into society once they have served their court-ordered sentences, so that they can return to a normal life. This will be facilitated by allowing their criminal records to expire.

In her speech, Senator Pate talked about people moving on with their lives. That really struck a chord with me. Committing a crime is not a normal thing to do with one’s life. Destroying someone’s life, compromising someone’s future and tearing families apart are not normal consequences. Victims and their families are condemned to a new normal of sorrow, pain and sadness for their whole lives.

I’d like to share with you something that Madeleine Hébert, the mother of Maurice Marcil, shared with me. In 1979, Maurice and Chantal Dupont were assaulted and murdered on Montreal’s Jacques Cartier Bridge, and their bodies were thrown into the St. Lawrence. Here is what Ms. Hébert said:

Since July 3, 1979, I have never stopped being angry. Time stood still on that day; my son is still 14 years old. He will never grow up. I live with his memory, with his presence. He will be with me until I draw my last breath. For more than 20 years, I was closed in on myself. I buried my pain deep inside. I couldn’t think about those crimes. Roadside demonstrations made me break down in tears. I couldn’t hold a baby in my arms. Those are some examples of how I suffered. . . . The criminals, so they claimed, had paid their debt to society and didn’t want to die in prison. But as for me, they gave me a life sentence, and I don’t understand how they have the gall to believe they have served their time.

The case of Madeleine Hébert is a good example of the suffering that a victim’s family can experience as a result of a criminal act.

When I listen to the speeches given by Senator Pate or Senator Bernard, I’m left feeling as though the victims and the criminals have traded places in our justice system. The criminal becomes the victim, the justice system curtails victims’ rights, and the real victims no longer exist.

According to Senator Pate, the provisions of the Criminal Records Act currently prevent criminals from finding work and housing and being rehabilitated in society. She said that landlords and employers can discriminate against criminals, even if there is no public safety justification for doing so.

Honourable senators, I would remind you that the Constitution already protects criminals from any employment discrimination. Section 18.2 of the Charter of Human Rights and Freedoms states:

No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.

The employer has the right to check the candidate’s criminal history, but they can’t refuse to hire the candidate solely because the candidate has a criminal record.

Senator Pate’s bill completely changes the meaning and purpose of the act, as the new title demonstrates, since the legislation will now be called An Act to provide for the expiry of the records of persons who have been convicted of offences.

In her speech at second reading stage, Senator Pate also said:

This bill will remove unnecessary obstacles to community integration for those with criminal records . . . .

In my opinion, the phrase “unnecessary obstacles” presents a flawed and subjective view. At present, under the Criminal Records Act, the Parole Board of Canada must make inquiries when it receives an application for a record suspension. According to the act, these inquiries serve to ascertain, among other things, whether the applicant is eligible to make an application, their conduct since the date of the conviction, and whether ordering the record suspension would bring the administration of justice into disrepute.

This allows the Parole Board of Canada to study each case submitted to it, to ensure that the applicant does not pose a threat to public safety. It also ensures that the board’s pre-eminent criterion is respected, and that is the protection of society.

The offender must act responsibly when submitting an application by paying the fees for the application, ensuring the relevance and accuracy of the information in their file and, of course, demonstrating good conduct.

In my view, in order for an offender to be rehabilitated, they must first take responsibility. After all, the offender chose to commit a crime, and if applying for a record suspension is too hard for them, perhaps they have not taken full responsibility and do not deserve a record suspension.

In society, every day, Canadians have to fend for themselves to find a job, find housing and take care of their health, despite the obstacles they may sometimes face in life. In the legal world, women who are the victims of domestic violence must do what it takes on their own to flee their situation and protect their children and themselves from their abuser. They have to leave home, find a new job, alter their whole lives and, in many cases, pay for the services of a lawyer themselves.

Need I remind Senator Pate that applying for a pardon is a right but that obtaining a pardon is a privilege? The purpose of Senator Pate’s bill is to automate record suspensions with this new expiry process. Offenders will no longer have to apply to the board because their record will automatically expire at the end of the applicable period for the expiry according to law of any sentence. This completely eliminates the whole concept of merit.

This new provision takes an important power away from the Parole Board of Canada members, that of investigating whether a person is a suitable candidate for a record suspension. This is a significant loss of power for the board, and an additional risk to public safety. Currently, the board can decide to suspend a criminal record by considering the applicant’s good conduct, the measurable benefit to society and whether the application will bring the administration of justice into disrepute.

In other words, the board cannot suspend a criminal record solely on the basis that the offender has demonstrated good conduct during the applicable period for the expiry according to law of their sentence. The board must consider other aspects of the case, and the onus is on the applicant, pursuant to subclause 4.1(2), which states the following:

The applicant has the onus of satisfying the Board that the record expiry would sustain their rehabilitation in society as a law-abiding citizen.

Of course, there are exceptions in the legislation, and some categories of less serious crimes are not covered by the process I have just described, at least not completely. However, the most serious cases, which involve Criminal Code offences that are generally sexual in nature, that involve pedophilia or sexual exploitation of minors, are excluded from the possibility of applying for a suspension.

Senator Pate’s bill completely erases the process I just described. Automatic record expiry erases the board’s usual inquiry process for ascertaining the appropriateness of suspending a record, which the existing law requires for each record suspension application. It would now be up to the board to conduct inquiries prior to a record expiring and to prevent the expiry only if the offender is charged with or convicted of another crime.

The principles upon which the board must base its decision, such as measurable benefit to society and whether the application is unlikely to bring the administration of justice into disrepute, no longer apply.

The onus is no longer on the offender; it is now on the board. This bill provides for the automatic expiry of criminal records based on nothing more than the passage of varying lengths of time after the expiry of a sentence, depending on the offence. Except in some cases, the person seeking a record suspension doesn’t need to apply, and, as such, doesn’t have to make a statement to the Parole Board. That makes it impossible for the board to ascertain whether the offender made a false or deceptive statement or concealed some material particular.

However, if the board’s inquiries turn up a conviction, then there is a clause to prevent the record from expiring. Nevertheless, the bill includes a clause that would still allow the board to authorize the expiry of the record even if the offender has reoffended. It is found in the proposed section 4.1(3), which reads as follows:

The Board must, on application, order the expiry of the applicant’s record if it is satisfied that the record expiry would sustain their rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.

That is worrisome because it is a way of condoning and authorizing recidivism. Why would we eliminate the criminal record of an individual who continues to break the law? If we are lax in passing judgment on a repeat offender, then we are encouraging them to do it again.

There is another aspect of the bill that I find alarming and that should concern you, honourable senators, and that is the fact that, under this bill, the records of offenders who committed any of the crimes set out in Schedule 1 to the existing act could now expire automatically.

Schedule 1 to the act contains serious offences, as I said earlier. These include the following: sexual interference with a minor; bestiality in the presence of a person under 16; inciting a person under 16 to commit bestiality; corrupting children; child pornography; and trafficking of persons under 18. These last two offences, child pornography and trafficking of persons under 18 years of age, are the fastest-growing crimes in Canada at the moment.

Schedule 1 lists crimes of a sexual nature, mostly against children. We know that the recidivism rate for sex offenders is very high. Some studies indicate a recidivism rate of 48% within five years of parole, and a re-incarceration rate of almost 70%.

That is why the Criminal Records Act prevents Schedule 1 offenders from being able to apply for a record suspension, with certain exceptions. This will no longer be the case, colleagues, if Bill S-212 passes.

What’s even more alarming is that offenders who have been convicted of any of the sex crimes set out in Schedule 1 will only have to wait five years after the end of their sentence for their criminal record to automatically disappear. Yet statistics show that the recidivism rate is 48% five years after parole.

Something else that alarms me are the changes to the revocation or cessation of effect of the board’s decision. Under the current act, a record suspension can be revoked or cease to have effect if the applicant has reoffended, lied on their application or was simply not eligible. Senator Pate is trying to amend this process by restricting the possibility of revocation or cessation of effect set out in Schedules 1 and 2 to the act to only those cases in which the offender lied when inquiries were made. It will be hard to make inquiries because, as I mentioned, the bill no longer requires the offender to submit an application. How can the board determine whether the offender is lying if it doesn’t have all the information?

In summary, the other crimes and offences that are not set out in Schedules 1 and 2 to the act can no longer be revoked, and in the case of offenders whose record has expired and who reoffend, any new offence will be entered on a new, clean record because the old one will be completely eliminated, so reoffending will be a thing of the past.

This process is a threat to public safety because this lax approach will only reinforce offenders’ sense of impunity, and erasing past crimes creates a new injustice and revictimizes victims of crime.

I don’t agree with Senator Pate’s answer in her speech at second reading to her third question. She said there would be no risk to community safety as a result of the proposed amendments.

As mentioned, the bill as written will have a major impact on the number of cases where an expired criminal record becomes accessible again, due to either revocation or cessation of effect. That will become very rare.

Police and the courts will be deprived of crucial information concerning an individual’s criminal past. This will have serious consequences, especially in cases where a judge is deciding whether to order the release of an accused based on certain factors, such as whether the accused has been previously convicted of other criminal offences, as provided for in paragraph 515(3)(b) of the Criminal Code.

The accused’s past convictions will be a very important factor that the court could consider in its analysis of the grounds set out in subsection 515(10) of the Criminal Code. For example, the court could come to the conclusion that a person who has been convicted multiple times for different criminal offences in the past might commit another criminal offence if released pending a trial and that the detention is necessary for the protection or safety of the public. In the absence of this information, an individual could be released and considered dangerous.

To make that analysis, it is imperative for the court to be able to access the criminal record of the accused. That is also the case for the appeals courts. I would like to quote a passage from a decision written by Justice Sophie Lavallée, of the Quebec Court of Appeal, in S.J. v. R.:

 . . . the appeal judge must take “a look at the past” in order to assess the “potential for compliance with a release order.” In so doing, the judge may consider a multitude of factors, including the following: . . .

d. the applicant’s record with respect to complying with court orders;

I would also like to address the sentencing stage of the judicial process. Here again, I refute the argument proposed by Senator Pate in her November 30, 2021, speech in reference to her second question, which was, and I quote: “Does record expiry make sentences more lenient? The short answer is no.”

The courts have clearly illustrated that an offender’s criminal history is of great importance at sentencing. In R. v. Angelillo, Justice Charron of the Supreme Court of Canada wrote, and I quote:

The objectives of sentencing cannot be fully achieved unless the information needed to assess the circumstances, character and reputation of the accused is before the court.

She continues:

There is no doubt that the court may take prior convictions into account in determining the appropriate sentence. . . . The sentence imposed on a repeat offender may well be more severe, but this is not contrary to the offender’s right not to be punished again. From the standpoint of proportionality, the sentence imposed in such a case is merely a reflection of the individualized sentencing process.

The same opinion was expressed in R. v. Simeunovich, a 2019 decision from the Ontario Court of Appeal. It stated, and I quote:

[English]

The appellant’s extensive record was an important factor in this case. It impacted on the appellant’s prospects for rehabilitation. It was relevant to specific deterrence. Moreover, the trial judge recognized that the appellant’s incorrigibility engages public protection concerns. . . .

[Translation]

Furthermore, R. v. Cardinal, a 2011 Alberta Court of Appeal decision, stated, and I quote:

[English]

. . . the sentencing judge made no error in concluding that a record is relevant in considering other sentencing principles. The record is relevant when considering, among other things, denunciation, individual deterrence, proportionality, the risk of re-offending, and whether preventative detention is necessary to prevent further offences.

[Translation]

It is therefore clear that, if an offender’s record is unknown to the court at the time of sentencing, because it automatically expired and the offender was not in one of the rare situations where revocation or cessation of effect applied, the judge’s sentencing decision will be biased. The offender’s profile will be inaccurate because information about their criminal record is unavailable.

In other words, the main purpose of this bill is to reduce future sentences imposed on repeat offenders. That is contrary to the principles of law that guide the Canadian justice system. Worse still, it enables individuals who should be monitored by police because of their criminal records to fly under the radar.

Honourable senators, although I feel that this bill is a threat to public safety and too lenient toward repeat offenders, I respect Senator Pate’s hard work and perseverance in the interest of creating a more just and humane justice system. In a democratic society such as ours, it is obviously important to ensure that our justice system respects human rights and treats offenders with dignity and humanity. That is what distinguishes us from authoritarian societies and dictatorships, where justice is not independent and is very often tightly controlled and biased.

I understand what Senator Pate is fighting for and I am well aware of the work we need to do to create a system that is better suited to the reality of Indigenous peoples. However, the problem with this bill and its approach is that it takes a solution to a specific problem and tries to apply it to the entire justice system.

Consider the example of mandatory minimum sentences. A national debate is obviously going on about the appropriateness of some of these sentences, which could have an effect contrary to their objectives.

Personally, I am in favour of looking at these issues and making the necessary corrections, where appropriate. However, when I reflect on Senator Pate’s Bill S-213 on this subject, which eliminates all mandatory minimum sentences, I think her approach goes beyond today’s debate and ignites another debate that is much more radical and binary. We are being forced to vote for or against mandatory minimum sentences. There is no room for reflection, because our positions become diametrically opposed. On the one side, we have the Conservatives, who are in favour, and on the other, we have the independent senators, who are against.

Looking at criminal records specifically, I don’t think it was necessary to totally rewrite the federal law and change its meaning completely, on the pretext that some offenders can’t find a job or housing. The current act works well and can, of course, be changed if there is a problem with it in certain cases, such as the one Senator Bernard mentioned. However, it is not appropriate to completely change an act that is working well.

The proof is that the Correctional Service of Canada now has the lowest number of people in prison and the highest number of people under community supervision on record. Historically, the correctional system always had more offenders in prison than under community supervision. Today, in 2022, we have far more people under community supervision than in prison. That means the system is working.

At present, due to the pandemic and the Trudeau government’s catastrophic financial management, many Canadians are grappling with inflation, have lost their jobs or can no longer afford shelter because rents are too high or their credit score prevents them from finding housing. Ask them if they are okay with their money being used to pay the costs associated with the expiry of criminal records to make life easier for offenders who can’t find work or housing. I don’t think their answer will be favourable.

I will conclude my speech by asking you a question, esteemed colleagues: Do you support this bill that allows individuals sentenced for pedophilia, possession of child pornography or obscene material, or trafficking of minors to have their criminal record disappear automatically five years after they have finished serving their sentence?

I believe that as senators, as parents and grandparents, we should already know the answer.

(On motion of Senator Martin, debate adjourned.)

[English]

On Other Business, Senate Public Bills, Second Reading, Order No. 9, by the Honourable Pierre J. Dalphond:

Resuming debate on the motion of the Honourable Senator Carignan, P.C., seconded by the Honourable Senator Housakos, for the second reading of Bill S-229, An Act to amend the Language Skills Act (Lieutenant Governor of New Brunswick).