Remarks to the Standing Senate Committee on Legal and Constitutional Affairs on Bill S-212, that provides for the expiry of criminal records

Honorable Chairperson and Members of the Committee,

Thank you for inviting me back.

I acknowledge my presence on the traditional unceded, unsurrendered territory of the Algonquin Anishnabe people. As Federal Ombudsperson for Victims of Crime, I acknowledge the colonial violence imposed on Indigenous Peoples, and how this continues in the overrepresentation of Indigenous peoples in the criminal justice system and the disproportionate impact of criminal records. The systemic and economic barriers imposed by criminal records reinforce conditions that continue to strip Indigenous families of their resources, reallocating them to settlers.

Office of the Federal Ombudsperson for Victims of Crime

Given that I have recently appeared before the committee and explained the mandate of our Office, I would like to provide some additional context for my comments today. When our Office considers the impact of criminal justice legislation, we apply a GBA+ lens that explores intersectionality, and we also adopt a “victim-centred approach.” I understand that the word victim is value-laden and problematic for many people who have experienced violence, so here I use it within the legal context of the criminal justice system. When I say victim-centred, it means that our starting point for legal analysis is with the person whose section 7 Charter rights to life, liberty, and security of the person have been violated. It also means challenging our assumptions about the contexts and relationships that come to mind when we talk about victimization. Offering a fair representation of the perspectives of victims of crime is really challenging. Victims and survivors have different needs and want different things from the justice system. A common thread is how deeply these convictions are felt, and a desire for respect, to be heard, and not to be dismissed.

Criminal Record Expiry

Criminal records introduce direct and indirect harm to many victims of crime. They are a blunt instrument applied to a wide range of people who come into contact with the justice system. As criminal record checks become more common in applications for employment, volunteer positions, education, and housing, the harms continue to grow. I would like to highlight some of the unintended consequences on victims of crime.

Systemic Racism and the Root Causes of Violence
Criminal records disproportionately affect racialized people in Canada, specifically people who are Indigenous or Black. Already, these groups are over-incarcerated, and criminal records extend the continuum of criminalization into communities as people try to reintegrate. This introduces barriers to employment, housing, and education reinforcing the circumstances that contribute to victimization. These overlapping processes of exclusion are identified in government reports like the Ontario Review of the Roots of Youth Violence. And, Dr. Tanya Sharpe, who conducts research with Black Survivors of Homicide Victims at the University of Toronto, has identified similar risk factors as social determinants of homicide within Black communities in Canada.

Intimate Partner Violence (IPV)
If we consider cases of Intimate Partner Violence, the application of mandatory charge policies by police means that survivors of IPV can be charged in error. In my own research, with a sample of 153 survivors of IPV across Canada, women and men reported being arrested when they called the police for help. In 2015, Dr. Denise Hines published a study that called attention to legal and administrative aggression as a form of coercive and controlling behavior in cases of IPV. This is when a partner manipulates legal and administrative systems to extend their abuse through public institutions. Women and men in my research described instances of false accusations resulting in criminal records and jeopardizing custody of their children.

Families
When police respond to incidents within a family, a conviction and criminal record can have negative consequences on victims who may depend on the perpetrator for economic support, and all members of the family can feel the stigma of a criminal record.

Vulnerable and exploited persons
In Canada people who are homeless or mentally ill experience high rates of victimization and criminalization. So many people can be affected. A 2015 survey of 130 human trafficking survivors in the US found that 90% had been arrested or charged for incidents related to their exploitation.

Non-conviction records
Police can also record non-conviction related information such as interactions for mental health, charges that were dropped or stayed, and charges may still be visible on a vulnerable sector record check after a not guilty finding in court.

Scope
Nearly 4 million Canadians have a criminal record. In 2020-2021, less than 10,000 people applied for a record suspension or pardon, and 17% were rejected at initial screening due to ineligibility or incomplete submissions.

 

Recommendations:
Our Office supports evidence-based prevention to tackle the root causes of victimization, and we want to ensure victims and survivors are not subjected to additional pain and stigma through criminal records.

We recommend:

1. A tiered approach: We support automatic expiry of summary convictions after 2 years. Rather than an automatic expiry,  we recommend that people with Schedule 1 offences or repeat violent offences be required to apply after 5 years.
2. Limit non-conviction records: Police record checks should not disclose personal information unrelated to criminal convictions. This will better respect privacy on mental health, the principle of innocent until proven guilty, and limit harms associated with legal and administrative aggression.
3. Educate the public: Communicate changes and clarify misconceptions, drawing on findings from Public Safety Canada’s consultations on automated sequestering of criminal records.
4. Affirm the human right to housing: Specify that a criminal record or expired record cannot be grounds to deny access to housing. Removing barriers is necessary to help Canada address the  housing and homelessness crisis, and reduce street-level violence.

 

Thank you again for your time.