July 24, 2018
The Honourable Ralph Goodale
Minister of Public Safety and Emergency Preparedness
The Honourable Jody Wilson-Raybould
Minister of Justice and Attorney General of Canada
Re: Bill C-66, the Expungement of Historically Unjust Convictions Act (now S.C. 2018, c. 11)
I am writing on behalf of the Canadian Criminal Justice Association (CCJA). As you may know, the CCJA is one of the longest serving non-governmental organizations of professionals and citizens interested in criminal justice in Canada, having begun its work in 1919 and having testified before Parliamentary Committees on numerous occasions. Our association represents 700 members from all across Canada.
Following decades of injustice perpetrated against sexual minorities, addressing unjust convictions in the criminal justice system is precisely the type of change needed to achieve restorative justice. While we commend the Expungement of Historically Unjust Convictions Act, and its main objective of creating a procedure for expunging certain types of unjust convictions leveled against members of Canada’s LGBTQ+ community, the CCJA joins a great many people and organizations who believe that the Act does not go far enough.
The CCJA shares in the concern that the scope of the Act’s approach (i.e. the schedule of listed offences) is too narrow and overlooks other sections of the Criminal Code that were discriminatorily applied to the LGBTQ+ community.We echo the observations made in the Standing Senate Committee on Human Rights’ Tenth Report on the Act’s limited schedule, recommending the Department of Public Safety and Emergency Preparedness launch public and stakeholder consultations on the bawdy house laws in particular, and any other provisions of the Criminal Code that were applied in a discriminatory fashion towards sexual minorities. The CCJA believes that consultations on redressing the past discriminatory application of other offences under the Criminal Code are a good first step to achieving the holistic remediation that the Prime Minister envisioned in his apology last November to the LGBTQ+ community.
Further, clarity is also needed on the major criterion of s.23 of the Act which provides that the Governor in Council may, by order, add an item to the schedule if the Governor in Council is of the opinion that the criminalization of the activity constitutes a “historical injustice” – a term that remains undefined in the Act. We urge the Government to provide clarification of this term in legislation or other appropriate instrument. The CCJA submits that rooting the definition of historical injustice in the fundamental, guiding principles of the Charter of Rights and Freedoms would go a long way to clarify the intent and parameters of this concept.
As citizens in an inclusive society that values justice, freedom and human dignity, we make these submissions not to discount the laudable achievements of the Act, but to build on this positive step forward. We ask that you continue to make progress on this file by considering the recommendations herein.
Response Letter from The Honourable Ralph Goodale
November 20, 2018
Dear Irving Kulik:
Thank you for your correspondence of July 24, 2018 regarding the Expungement of Historically Unjust Convictions Act. I appreciate your interest in this important matter.
The three offences that are currently included in the schedule to the legislation – gross indecency, buggery and anal intercourse – are the offences that most clearly discriminated against members of the LGBTQ2 community. These offences were largely prosecuted in a targeted manner, criminalizing behavior of LGBTQ2 persons that would be lawful today.
Other Criminal Code provisions such as bawdy house provisions were considered when creating this legislation, and our Government acknowledges that this issue is important and complex. Recognizing that there may be other historically unjust convictions, the Act includes a mechanism for other offences to be added to the schedule in the future. As you are aware, the Senate Standing Committee on Public Safety and National Security made a number of recommendations with regards to the Act, including with respect to the scope of eligible offences. These recommendations will help inform next steps.
With regards to historical injustices, the Act outlines an example of what might constitute a historical injustice. The criminalization of an activity may be historically unjust if it would be inconsistent with the Charter of Rights and Freedoms if it occurred today. The Act does not offer an exhaustive definition of a historical injustice and to do so would be unnecessarily restrictive, given that this concept would evolve as Canadian law, values and norms shift over time.
Our Government believes in full equality for all Canadians and takes very seriously its responsibilities to challenge stigma, violence and prejudices wherever they occur. We will continue to advance and protect LGBTQ2 rights and to address the historical injustices these communities have endured.
Thank you for taking the time to write about this important issue.
The Honourable Ralph Goodale, P.C., M P