Charter Statement - Bill C-66: An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts

Tabled in the House of Commons, December 12, 2017

Explanatory Note

The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-66, the Expungement of Historically Unjust Convictions Act, for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-66 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Establishing an expungement procedure for certain historically unjust convictions

Bill C-66 creates a new Act of Parliament that allows for the expungement of convictions that constitute historical injustices. To this end, the Bill creates a schedule of offences that will be eligible for expungement. The offences of gross indecency, buggery and anal intercourse are currently provided for in the schedule. Bill C-66 also provides authority for the Governor in Council to add offences to the schedule by order. The Bill provides for applications to be made to the Parole Board of Canada and provides the Board with jurisdiction to order or refuse expungement. Pursuant to sections 12 and 13, the Board must expunge if there is no evidence that the applicable criteria are not satisfied and the activity in question is not otherwise prohibited under the Criminal Code. Persons who were convicted of an offence for which expungement is granted are deemed to have never been convicted of that offence. The RCMP and other federal departments or agencies are required to destroy any record of an expunged conviction in their custody. The RCMP must also notify any provincial or municipal police forces that, to their knowledge, has custody of the applicable records and advise them of the expungement order.

Sexual Activity Between Persons of the Same Sex

As noted, Bill C-66 allows for the expungement of a conviction for the offences of gross indecency, buggery and anal intercourse as prosecuted under the Criminal Code and National Defence Act. The particular criteria that must be satisfied to grant an expungement are set out in section 25, which provides that an application for an expungement order must include evidence that (a) the activity that constituted the offence was between persons of the same sex; (b) the activity was consensual; and (c) the person who participated in the activity with the applicant was 16 years of age or older at the time that it occurred, or the applicant would have otherwise been able to rely on a close-in-age defence under the Criminal Code.

Expungement of convictions related to these offences is consistent with the core values that underpin the Charter, including equality, respect for diversity, human dignity, liberty and autonomy. Allowing for expungement in this context recognizes that the targeted criminalization of consensual, age appropriate sexual activity between persons of the same sex constituted an historical injustice. Section 15(1) of the Charter provides that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination, including on the ground of sexual orientation. Limiting the grant of expungement to sexual activities only between persons of the same sex has the potential of engaging section 15(1) of the Charter by drawing a distinction between persons on the basis of sexual orientation and providing for their preferential treatment.

However, section 15(2) of the Charter clarifies that section 15(1) does not preclude laws, programs or activities that have as their object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, mental or physical disability, or sexual orientation. The following considerations support the consistency of the same sex criterion as part of an ameliorative law pursuant to section 15(2) of the Charter. While the scope of the offences in question included sexual activity between persons of the same or opposite sex, regardless of sexual orientation or gender identity, their enforcement was targeted primarily at the sexual activity of gay men. Bill C-66 seeks to address this historical injustice by expunging their criminal records to make it as if they had never been convicted of certain offences. This relieves persons of the stigma of a criminal record and recognizes the disadvantage faced by them because of their sexual orientation.