(Chair) in the chair.

[Translation]

Good morning and welcome to the meeting of the Standing Senate Committee on Legal and Constitutional Affairs.

Before we begin, I’d like to ask the senators to introduce themselves.

Senator Pierre-Hugues Boisvenu from Quebec.

[English]

Dennis Patterson, Nunavut.

Marty Klyne, senator from Saskatchewan, Treaty 4 territory.

[Translation]

Bernadette Clement from Ontario.

[English]

Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe.

[Translation]

Renée Dupuis, independent senator, Laurentians, Quebec.

[English]

I’m Brent Cotter, senator for Saskatchewan, from Treaty 6 territory and the homeland of the Métis. Welcome, senators.

I’d like to begin in a moment by welcoming our witnesses. This morning, we are continuing our study of Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.

We have two panels today. With the first panel, let me welcome, from the Fresh Start Coalition, Tareq Bawwab, Member of the Community Expertise Committee, joining us by video conference; from the Black Legal Action Centre, Khaldah Salih, Community Legal Worker; and as an individual, Rachel Fayter, PhD Candidate. Welcome to the three of you.

As I think you were reminded before we began, I’d like to invite you each to speak for five minutes, and following that we will engage with you in discussion and questions with the senators who are attending the meeting today.

If I could ask you, Mr. Bawwab, to begin.

Thank you, senator. Hello, everyone. Thank you for giving me the opportunity to speak today. Ladies and gentlemen, I would like to begin by introducing myself. I am Tareq Bawwab, an individual member of the Fresh Start Coalition representing those with lived experience. I am a graduate of the University of Toronto with a double major in history and political science. I have been working with the coalition for almost two years, pushing forward our campaign. As a member of the Community Expertise Committee, which includes members of the community with lived experience being affected by the Criminal Records Act, I have lived with the systemic barriers which the current system entails.

I commend the Honourable Senator Kim Pate for her efforts all these years to reform the current record suspension regime. The current regime has a number of significant problems and barriers to the reintegration of ex-offenders into society. I was charged a decade ago and convicted nearly a decade ago of a charge which I incurred as a result of being in a mental health crisis.

As my colleagues have suggested, Blacks, Indigenous and people of colour, as well as the mentally ill, are significantly overrepresented in the criminal justice system.

Furthermore, I would like to highlight some of the major issues and barriers with the current record suspension regime and how Bill S-212 rectifies our concerns.

First of all, the increased wait times for summary offences changed from 3 to 5 years and for indictable offences from 5 to 10 years, which is a significant doubling of the wait times, which goes against the fundamental principles of justice. If one was to wait 10 years after sentencing, which may include probation, they are often going to wait even more than a decade for a pardon. This increases chances of further police contact and discrimination in the system as it currently stands.

As suggested by one of my colleagues, a five-year reduced wait time would allow someone to possibly finish a degree and further their education while waiting for their pardon. But 10 years would negatively affect anyone’s mental health to their detriment and leave them in a state of hopelessness and despair.

There are many factors regarding how doubling of the wait times increases chances of police interaction and increases the chances for recidivism due to how unreasonable a decade-plus-long wait can be. No access to employment, no possibilities for volunteering or being able to contribute positively to society. Lack of supports, lack of meaningful employment and not being able to travel is like sentencing someone to unconstitutional double punishment by effectively killing their spirit with a decade sentence after they’ve completed their initial sentence for the same crime. This leads to basic human needs not being met due to the rigidness and complicated application process of the current record suspension regime.

Any interactions with the law after the initial conviction should not be treated as a new conviction and reset of the wait times or affect the eligibility of a pardon. Due to the over-policing of certain communities and if new charges are discharged or withdrawn, there should not be a reset of wait times for a pardon. At the same time, there are not enough resources to accommodate the needs of the mentally ill to prevent them from reoffending in the first place.

This brings me to the good conduct clause. If you have completed your sentence, waited the awaited times but have had any interaction with the law, including even driving offences, the Parole Board of Canada can refuse you a pardon under the good conduct clause of the present regime. Furthermore, if an ex-offender is found not to have paid a fine or victim surcharge, their wait times are reset, meaning even if you had a mere $10 fine from 10 years ago which is outstanding, you will have to wait another decade for a pardon due to outstanding fines. That’s a 20-year wait for a pardon due to the reset clause of the current regime. This is like condemning someone to a life sentence.

Hence I commend how Bill S-212 seeks to rectify the systemic racism, discrimination and over-policing of Black, Indigenous and racialized minorities as well as the mentally ill by allowing for a pardon as long as there are no new convictions. Also, fines or minor administrative portions of a sentence do not reset the wait times. The current application process has infinite hindrances to the rehabilitation of ex-offenders. Hence an automated system of pardons would rectify how marginalized groups will be freed from the constraints and complications of the application process.

If you have any further questions, I would be more than happy to address them. Thank you very much.

Thank you, Mr. Bawwab.

Could I now invite Khaldah Salih to speak?

Hello, everyone. My name is Khaldah Salih. I’m a community legal worker at the Black Legal Action Centre, known as BLAC. Thank you for inviting me to this hearing and thank you to Senator Kim Pate for her leadership on this bill.

Established in 2017, the Black Legal Action Centre is an independent, not-for-profit community legal clinic in Ontario that combats individual and systemic anti-Black racism. BLAC accomplishes its mission by providing free legal services, conducting research, developing public legal education materials and engaging in test case litigation and law reform. BLAC is the successor to the African Canadian Legal Clinic, which is accredited to the 2001 United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance.

BLAC has been working with other organizations and advocates as part of the Fresh Start Coalition and with the Canadian Association of Black Lawyers, calling for the criminal records system to be reformed.

We are extremely concerned with the current criminal records system because of the reality and impacts of the continued criminalization of Black people. The documented disproportionate rates of Black people in federal prisons exemplifies the systemic racism inherent in the criminal justice process, from the higher policing of Black communities to the higher likelihood of Black people receiving harsher sentences.

These are concerns also highlighted in Canada’s Black Justice Strategy currently under way by the federal government.

The impact of criminalization is deepened by criminal records, which makes it harder for people to obtain employment, housing and educational opportunities, although they have already served their sentence. We think that a new criminal records system should be automatic, have shorter wait times, apply to all convictions, and eligibility should focus on the lack of new convictions and not on police contact, for example. An automatic system for all convictions is necessary to alleviate the impacts of criminalization, and in particular, to alleviate the impacts of systemic anti-Black racism.

It is of some significance that a new system does not require police contact as a necessity to have a criminal record expire. We have a higher likelihood of contact between police and Black individuals due to increased surveillance and policing of Black communities. Black people with criminal records would face a discriminatory barrier to access that expiry. Therefore, the focus should be on new convictions.

An automatic system would shorten wait times and would lessen the barriers faced by people to start their life and reintegrate into society. The barriers created by this system perpetuate the conditions that could lead to criminalization itself, something that disproportionately impacts Black communities.

We must consider that when an individual has a criminal record and has to live with the consequences for years, it is not only that individual who is impacted; it is also their family and community. That is the nature of systemic discrimination; its impacts are felt throughout society.

There is no evidence to show that having a criminal record would reduce recidivism or increase public safety. You cannot tell, based on a past record, whether a person is more likely to commit an act of violence in the future. After a few years — much less than the 10 years required in the current system — a person with a criminal record is no more likely to become involved in the justice system than a person with no criminal record.

What we do know, however, is that a criminal record can bar access to education, employment and housing, and that those financial and social barriers perpetuate the impacts of systemic anti-Black racism, which can lead to criminalization in the first place. Thank you for your time.

Thank you, Ms. Salih. I now invite Rachel Fayter to speak.

Good morning, honourable senators. Thank you for having me. My name is Rachel Fayter. I am currently a PhD candidate in criminology. I am also a criminalized woman who served a five-year sentence in federal prison. An automatic criminal record expiry process would sustain and contribute to my ability to continue as an active, contributing member of society by reducing barriers to community inclusion.

I was released from prison in 2017. The stigma of incarceration and having a criminal record, along with constant criminal record checks, has impeded my community re-entry. I did not have a criminal record prior to this conviction, and I was very fortunate to have a strong social support network, along with a master’s degree in psychology and 10 years of social work experience, all of which are extremely rare for people leaving prison. Despite these assets, I was unable to find work in my field after sending out over 100 resumés and having dozens of interviews. After several months, I was forced to work two minimum-wage, part-time jobs, selling burritos during the day and stocking grocery store shelves overnight. This was difficult on my physical and mental health.

Even after successfully completing my sentence and parole without any violations, I have continued to face barriers accessing housing, employment and travelling outside of Canada. In Ottawa and many other cities across the country, landlords and building management companies ask for a criminal record check to obtain housing. Although I was a PhD student and doing well in the community, it was extremely difficult to find an apartment, and I had to ask my professors for letters of reference to support me in accessing housing.

As an academic and social justice advocate, I frequently must travel for research, conferences, workshops and other events in Canada and internationally. However, I am not able to enter the United States, along with several other countries, due to my record.

Having a criminal record has also made me vulnerable to police harassment. I’ve had police pull me over for no reason after they run my plates other than to check if I’m doing anything illegal. Due to my research and advocacy, I am frequently in contact with other former prisoners, some of whom are struggling with poverty, homelessness, mental illness, addictions and ongoing criminalization. Having a criminal record has resulted in police following me after meeting with other criminalized people who were under investigation. I’ve been violently assaulted and threatened by police in the past, so I experience a lot of anxiety and am re-traumatized when this happens.

The current criminal record suspension process is extremely cumbersome, time-consuming, re-traumatizing and expensive, even with the reduced government fee of $50, making this inaccessible to most criminalized people.

The penal system sets us up for failure and creates a cycle of criminalization that is difficult to escape from. Without access to housing, employment, education and barriers to obtaining health care and mental health or addiction treatment, people are forced to break the law sometimes to survive, engage in unhealthy, abusive relationships or return to jail for food, clothing and shelter. This cycle of criminalization costs taxpayers billions of dollars a year that could be better spent on building healthy, well-resourced communities, which would reduce incidents of law breaking. It also excludes the most marginalized people in society, which is a shame in a country that espouses values of equity, diversity and inclusion.

These punitive policies and practices do not contribute to public safety. Am I not considered a member of the public? The Canadian government is supposed to ensure Canada is a just and law-abiding society, with an accessible, efficient and fair system of justice. However, the current punitive legal system imprisons already marginalized and disadvantaged populations, destroys lives and kills people. I lost everything when I was incarcerated and saw people die inside prison and on parole due to systemic violence. I may be successful now, but I am an outlier. I constantly feel vulnerable and am still healing from the trauma of imprisonment. Thank you.

Thank you, Ms. Fayter.

[Translation]

I thank our witnesses. My question is for Ms. Fayter. You said you were incarcerated for five years. What crime did you commit back then?

[English]

Yes. I was incarcerated for drug trafficking.

[Translation]

I see. The bill before us makes no distinction, when it comes to the erasure or disappearance of criminal records, between offenders who have committed rather minor offences and those who represent a high risk to society. I’m thinking, among others, of sex offenders.

Does your opinion mean that prolific sex offenders should be treated the same way as an offender who has committed minor offences?

[English]

Thank you for your question. First of all, these violent convictions represent a very small proportion of criminal convictions. I don’t think a legal system should be designed based around these rare examples. Sexual violence, as well as murder, is commonly linked to intergenerational trauma, living in unsafe neighbourhoods and systemic or structural violence. We currently live in a society that perpetuates violence against women and gender-diverse people, along with racism and sensationalist media reporting.

[Translation]

I’ll go back to my question. You say that sexual assaults are a minority, but 30% of cases in the courts deal with sexual assaults and 30% deal with domestic violence. In many cases, the accused are repeat offenders.

I’ll repeat my question. You’re a woman, you live in a neighbourhood. Would you feel safe if the system ensured that all criminals, regardless of the seriousness of the crimes committed — I’m thinking, among others, of sexual predators — were released from prison and that, a few years later, their record disappeared completely from the police radar? Would you, as a woman, feel safe?

[English]