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House of Commons Emblem

Standing Committee on Public Safety and National Security



Monday, May 6, 2019

[Recorded by Electronic Apparatus]



     Ladies and gentlemen, I see quorum, and as far as my eyesight allows, I see that it is close enough to 3:30.
    We have with us Elana Finestone from the Native Women's Association, and Mr. Cudjoe from the Canadian Association of Black Lawyers.
    I'll ask Mr. Cudjoe to go for the first 10 minutes, only because technology is not necessarily always trustworthy.
    Colleagues, we've achieved the first element for the process today, which is to merge the two panels so that we are time efficient. I'm anticipating a lot of questions for both panellists and we may go into the second hour.
    Second, I'm hoping that over the course of the two hours today, we will agree on a process going forward for the submission of amendments and picking a date for clause-by-clause.
    My suggestion to Mr. Paul-Hus and Mr. Dubé has been that we have amendments done by the end of the week. I appreciate that there are some difficulties with translation, because the drafters don't deal with amendments until the bill is actually referred to the committee. This a difficulty for all parties, by the way.
    If, over the course of the two hours we have together, you could indicate to me whether we can go with a motion, we won't have to have a subcommittee meeting, but if we can't agree on a motion, we will have to have a subcommittee meeting to agree on a process.
    With that understanding, I'll now ask Mr. Cudjoe to make his initial presentation for 10 minutes.
    Thank you, sir, for being here with us today.
     Thank you very much for the opportunity to be heard. On behalf of CABL, we really appreciate the fact that somebody thinks our voice is worth hearing.
    My apologies for not attending in person. This assignment came to me quite late in the process, which is why there's also no written material.
    Looking at all the material I've seen presented by the other parties, most of the ground has been covered, and I don't think I'll be too long.
    The recommendation from the Canadian Association of Black Lawyers, I don't know if you've heard it. I've heard the request to expunge the records and to make changes to the suspension of records. The main concern for young Black and indigenous youth who have gone through the system on possession of marijuana charges will be future employment and how that will affect them.
    The suspension of the record will almost seem like a token gesture if the committee considers that these convictions perhaps should not have happened in the first place. Having had a discussion with our board, our recommendation is that simple possession of marijuana charges and associated charges be deemed regulatory offences.
    That would not take them off the books completely—reference can always be made to them—but the one advantage, and I'm speaking on behalf of youth who are trying to get their first job, is that one question asked by employers to get around the suspension of records act is, “Have you pleaded guilty to a criminal offence?”
    It doesn't matter whether you've been pardoned or not, you can't get around that question. If on that form you say that you have pleaded guilty to a criminal offence, you don't even get your foot in the door for an interview, which is why the suspension of a record for many young men trying to get into the workforce is actually a token gesture. Employers are not asking whether you have a criminal record, but whether you've pleaded guilty to an offence, or you've been found guilty by a court of an offence.
    For young people, it's even worse. Your record as a youth may be sealed after three to five years, depending on whether you're convicted of a summary or an indictable offence. For a simple possession of marijuana charge, that record could be opened again for any future occurrences. Even with the suspension, I don't know how that's going to work in sealing your record for good as a youth. The problem is that provinces are reporting records for youth, as there's something on their record, but they can't tell us. For a possession of marijuana charge, that puts an individual in line with somebody who has committed homicide, robbery, break and enter, sexual assault, and guess what? They can't tell you what it is. This makes it even worse for the young person.
    Our recommendation is that these be deemed regulatory offences. For example, I coined a phrase, “the simple possession of marijuana act.” From that, you can get around things that are blocking people from getting their first-time employment, by sealing their records for good.
    I know that Ms. Finestone is going to get into the administrative charges, but there's one charge in particular that I have seen from the ground level that has arisen for young people as a result of possession of marijuana charges.
    The second time a young person of 14 or 15 is met and questioned by a police officer, they get scared. They're already in the court system. They may not actually be committing any offence at the time, but because they have a possession of marijuana charge, many times they've lied about their name. They then get an obstruction of a police officer charge. This is all as a result of their original possession of marijuana charge, and guess what? Their criminal career has begun.


    For many who live in suburban areas, go to better schools and have better chances in life, this may not be a big stumbling block. However, for many who are coming from extremely poor areas and families who don't have the means to push them forward, this is a huge stumbling block. This is why the suspension of records, which may seem to be carte blanche for everybody across the board, doesn't take into account the numerous people who were charged with possession of marijuana, especially as young people.
    I'd ask the committee to look at the numbers of first nation and young black men who were charged with possession of marijuana and to keep these numbers in mind when the recommendations are being followed, or whichever way the committee decides to go. The reality on the ground for black and indigenous youth is very different from the reality for others. Many times we hear police refer to somebody as “known to the police”. Sometimes it is a simple possession of marijuana charge, but it brings that person into the eye of the police who are walking the streets. Many of these young men are not able to stay at home all day playing video games—perhaps they don't have them—and they're out on the streets and come into regular contact with the police.
    One particular case went all the way to the Supreme Court: R. v. Mann. Mr. Mann was walking down the street. The police had a call about a break and enter. They saw Mr. Mann, and Mr. Mann, being a young, indigenous man, fit the description. The clothing was completely different, but he fit the description. He was stopped by the police, and the police, for safety reasons, searched him and found marijuana in his pocket. Eventually, the Supreme Court threw it out, but this case went all the way to the Supreme Court.
    What does this mean for Mr. Mann and many of the young men who are brought before the court on possession of marijuana charges? Let's review the process. There's a court appearance; it's basically a public shaming of the young man for possession of marijuana. There's the risk of further charges because he is released on conditions. There's the risk of detention if he is arrested for anything else. There's the stigma of walking into the courthouse with people who have been charged with a lot more serious charges. Furthermore, if at the end of it this young person is not given proper advice, he may decide to do what other young people say, that “I want to get it over with.” He is now branded for life with a charge of possession of marijuana. Employment opportunities are going out the window. This is for young men who already find it hard to get into the workforce.
    Following that, you have the fail to appear, fail to comply and fail to comply with probation charges, meaning failure of the youth to report to the probation officer. When the record is suspended, what shows up? I say that sometimes for a charge of possession of marijuana, it can actually be more insidious if the provinces are going to report it as “There's something there, but we can't tell you.”
    I will respond to one particular comment that was made about deals and how the prosecutor would make deals that would lessen the charges for the possession of marijuana. I think that's questioning the integrity of the prosecutor's office. I doubt they would make deals that were not real. Furthermore, we are well aware—


    Mr. Cudjoe, I'm not sure if you can see me, but I've been kind of waving at you.
    You had two minutes, and now you're down to one minute.
    If you can arrive at a conclusion, that would be good, please.
    Thank you.
    Thank you very much, Mr. Chair.
    I was on my last point—
    —and I didn't think it would take 10 minutes.
    Thank you very much.
    With regard to some of the deals that were referred to, I'd like the committee to take into account that many deals are made as a result of overcharging. I think that it's a red herring to go down that path.
    I'll sit back and wait for any questions.
    Thank you very much.
    Thank you, Mr. Cudjoe. I appreciate that.
    Ms. Finestone, you have 10 minutes, please.
     Before my 10 minutes start, I want to mention one housekeeping issue. I have some recommendations and proposed amendments that I just submitted. I won't go into depth about those because we can discuss them during the questions if you would like.
    Good afternoon. I would like to thank the Standing Committee on Public Safety and National Security for having me here today to discuss Bill C-93.
    I'm here on behalf of the Native Women's Association of Canada—NWAC. For those of you who don't know, NWAC is a national indigenous organization representing the political voice of indigenous women, girls and gender-diverse people in Canada, inclusive of first nations—on and off reserve, status, non-status, Métis and Inuit.
    NWAC examines the systemic factors that affect indigenous women's contact with the criminal justice system and seeks reforms that will alleviate the harms faced by indigenous women in contact with the law.
    Today, I'm here to talk about justice: correcting historical injustice, accounting for administration of justice offenses and increasing access to justice for indigenous women.
    First, I would like to talk about the context of my recommendations. Indigenous women are under-protected by the criminal justice system when they experience violence, go missing or are murdered, yet they are also disproportionately impacted by the criminal justice system.
    Too many indigenous women are in poverty, have precarious housing, lack family support and experience mental illness. They tend to lack knowledge of the criminal justice system and are often not represented by lawyers. They experience cultural and language gaps throughout the system.
    From the recommendations in the Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission and the testimony of indigenous women themselves, we know that their experience of the criminal justice system can be traced back to colonialism and racism. Indigenous women's criminalization is one aspect of a larger problem.
    NWAC recommends that Bill C-93 account for and meaningfully respond to these realities. I'm here on behalf of NWAC today to make concrete recommendations to address the implications for indigenous women as the bill stands.
    Bill C-93 is an important step in acknowledging the harms caused by tough drug policies and their adverse effects on indigenous women, especially indigenous women who are poor and convicted of minor offences. Unfortunately, the effects of the bill will go unrealized for many indigenous women with criminal records for simple possession of cannabis. Simply put, the bill remains inaccessible for indigenous women who are poor and have administration of justice issues associated with their simple possession of cannabis conviction.
    NWAC ultimately recommends that Bill C-93 be used to expunge criminal records for simple possession of cannabis and related administration of justice offences. In the alternative, NWAC puts forward the following three recommendations.
    The first is to correct historical injustice. It is acknowledged in the House that the prohibition of cannabis was bad policy. There is an acknowledgement by the Liberal Party that indigenous people have been “policed differently, convicted differently and managed by the courts differently”, and that these criminal records have a disproportionate impact on youth from poor communities, racialized communities and indigenous communities.
    At NWAC we know that indigenous women are much less likely to escape the notice of the criminal justice system. We know that cannabis used to be legal in Canada. It was legal until cannabis used to be associated with people of colour and considered so dangerous that increased law enforcement and police powers were necessary to contain its use.
    Let's correct these historical injustices and interpret this bill in a way that rights these historical wrongs.
    I borrowed language from the preamble in Bill C-415, but made a few additions. I recommend that the preamble read the way it does on page 3, but I would just add to the second paragraph the following:
And whereas the Supreme Court of Canada in R. v. Gladue and R. v. Ipeelee indicates that indigenous people and communities face racism and systemic discrimination in the criminal justice system


     In the last paragraph, I would add that these convictions have had a negative impact not only on their employment prospects but also on custody and access to children.
    Recommendation number 2 deals with the need to account for administration of justice offences, a lived reality for criminalized indigenous women. As a group, women's crimes tend to be on the lower end of seriousness. Over half of women's crimes are property crimes or administration of justice offences. Administration of justice offences are criminal offences, such as failure to attend court and failure to comply with conditions, to name a few. A full list of offences is on pages 4 and 5 of NWAC's recommendations.
    Administration of justice offences are also known as the “revolving door of crime”, because it's harder for people charged with these offences to leave the criminal justice system. This is especially the case for criminalized indigenous women. Charges against females accused of administration of justice offences are growing faster than charges against males.
    Administration of justice offences can be linked to indigenous women's marginalization. The lived reality for criminalized indigenous women is that they do not have the support or means to comply with the criminal justice system. This is not an excuse for their behaviour, but is a reality. For example, indigenous women in remote communities may be unable to get to a distant town where the court is located, and then may face several failure to appear breaches. Another person may unintentionally breach their bail conditions if they are homeless and do not get their court notices. When an indigenous woman is ordered not to attend her residence as a condition of judicial and term release, and there is no alternative housing or community support available to her, she is forced to violate that order to find shelter. As a result, indigenous people and marginalized Canadians are more likely to be charged, and if released on bail, are more likely to be subject to stricter and more impossible conditions.
    All of these administration of justice charges add to indigenous women's criminal records and set them up for failure. As it stands, indigenous women who are initially convicted of simple possession of cannabis and amass these administration of justice offences are not eligible to apply or receive a record suspension under Bill C-93.
    That's why NWAC recommends that Bill C-93 allow people with simple possession of cannabis convictions and administration of justice offences associated with simple possession of cannabis to apply for and receive criminal record suspensions for both the simple possession of cannabis convictions and any of the associated administration of justice offences.
    My last recommendation is to increase access to justice. In light of poverty and administration of justice offences plaguing racialized and marginalized groups affected by the Cannabis Act, NWAC recommends that people who have not completed their sentence for an offence under subsection 4(3.1) be able to apply for criminal record suspensions. It does not make sense for people to continue sentences for conduct that is now legal. This amendment would ensure that people in poverty who cannot afford to pay outstanding fines would have the benefit of Bill C-93.
    For the law to positively impact criminalized indigenous women, a gender-based understanding of Canada's history of racism and systemic discrimination towards indigenous people must be embedded in Bill C-93. The criminalization of indigenous women is one of the legacies of colonization. Indigenous women who are typically criminalized for simple possession of cannabis offences tend to be in poverty, are over-policed, and linger in the criminal justice system because of administration of justice offences.
    Criminalized indigenous women are set up to fail in this criminal justice system. By allowing people to no longer be clouded by a criminal record for an act that is now legal, regardless of whether they have finished their sentences, Canada now has an opportunity to take a step towards righting these historical wrongs.
    Thank you very much for your time. I look forward to our discussion on this very important issue.


    Thank you, Ms. Finestone.
    Mr. Cudjoe, thank you.
    Mr. Graham, seven minutes.
    Thank you. I'm going to start with Mr. Cudjoe.
     You made a comment very early on that the following question is often asked, namely, have you pleaded guilty to a criminal offence? I had not run into that before. Does that not run afoul of human rights legislation?
     Yes. If it does, if it's not been challenged—and the point is that we're talking about young kids filling out applications for Walmart and other places like that, who will not have the legal resources to challenge that.... It would take a group, for example, the Black Legal Action Centre, or something—to challenge that. That question can be changed, on the next form, to something to get around that.
    So it may run afoul of human rights-ization. I believe it does. I believe any question that seeks to get around conditional discharges and absolute discharges does run afoul of that. But I have seen three or four variations of that charge, and in actual fact, I believe one was from a government agency, which would be OMVIC. The OMVIC form for a car salesman has a very similar question that doesn't allow you to avoid pointing out a conditional discharge, which would have been done 10 years ago.
    Or there's the way one is asked at the American border: Have ever been arrested?
    Thank you.
    Great. Thank you.
    I just have some questions for you, Ms. Finestone. You mentioned the addition of a preamble. Does a preamble have any weight in law?
    It helps people interpret what the intent of the law is. So when we interpret this legislation, we would do it in a way that acknowledges historical injustices, which would be a way of correcting those injustices.
    You mentioned in your comments that you didn't want to go over the details in front of us, but for the record, could you just go over the four or five quickly and whether you want, for the sake of argument, each to be forgiven automatically or each one subjectively? Do we have a way of judging if a pardon for the additional offences should be automatic or subjective by application?
    We would like them to be automatic. Would you like me to go over what's on page 4 to 5?
    Very quickly, because we have five or six pieces here, it would be nice to—
    Oh, sure.


    —have a background on each one, why that one is there and not another one.
    I looked at the Criminal Code offences that—
    Are common.
    —would be common, just for things like cannabis—not for any sexual offences, because again I'd like to bring us back to talking about cannabis.
    For example, we have subsection 145(2) of the Criminal Code, dealing with failure to attend court; subsection 145(3), failure to comply with the condition of undertaking or recognizance; subsection 145(4), failure to appear or to comply with summons; subsection 145(5), failure to comply with appearance notice or promise to appear; and then subsection 733.1(1), failure to comply with a probation order.
     I defined administration of justice offences just for the purpose of subclause 4(3.1) of the bill, just so we know that we're talking strictly about simple possession of cannabis when it comes to criminal records, and I included those provisions in the definition.
    Then I made amendments, which you'll see starting on page 6, that whereas, as the bill stands, people wouldn't be able to apply for a criminal record suspension if they commit another offence, this would say that if it's an administration of justice offence related to simple possession of cannabis, then they would be able to apply.
    Then on the next page where we talk about receiving a record suspension, I made amendments so that it would say something to the effect that people could receive a record suspension not only for the simple possession of cannabis but also for the administration of justice offences associated with it. For example, if someone is convicted or charged with simple possession of cannabis but then doesn't show up for court just for that charge, not for anything else—again just talking about cannabis—then that would also be taken off.
    It's really quite meaningless if you just take away one part of the record but there's still a slew of administration of justice offences listed, which would be the case for marginalized and racialized people.
    The way the bill is proposed right now, if people have an administration of justice offence, would they even be able to apply because of the restriction being only—
     No, they wouldn't.
    There is one thing I want to clarify. You gave a very good explanation of why people in some communities are unable to present in court and so forth. However, should somebody who deliberately doesn't jump to court, who just says, “That's the system”, also have that automatic withdrawal of the other related offences?
    I think we need to go back to the fact that this is now something legal, and if this had been legal a few years ago, people wouldn't be ensnared in the criminal justice system. We know that people who are trapped in this system are often marginalized, so I guess the answer is yes—because we need to take this off the books.
    Is there any time left?
    You have 45 seconds.
    I will pass that time to Mr. Picard.


    How can you connect those files?


    Sorry, how can you relate those obstruction files?
    Ms. Elana Finestone: How can I.... I'm sorry—
    An hon. member: Your time is up.
    Mr. Michel Picard: I know.
    Your time is up.
    Adjudicate it, Chair.
    How can you relate your obstruction files and administration files specifically to the cannabis position file? Is it mentioned on the record that this obstruction has been applied because of the cannabis file, or is there nothing on the administration file that we can read that says it is related? Therefore, how could I take a chance to erase them?
    My understanding is that there would be the charge for simple possession of cannabis and then the person would be summoned to appear in court related to that charge. Perhaps Mr. Cudjoe can expand on this. Basically, there would be a timeline. All of these administration of justice offences would come after the initial simple possession of cannabis charge.
    Mr. Cudjoe is going to have to expand on that at another time.
    Yes, please.


    We'll have Mr. Motz for seven minutes, please.
     Thank you to both witnesses for being here.
    Were either of your organizations consulted prior to this bill? Do you see that your objections.... Obviously, I know the answer to my next question, but your objections are obviously not reflected in the current legislation.
    No, they are not. I was invited to a meeting with Mr. Matthew Dubé and Mr. Murray Rankin to discuss Bill C-415 and because Bill C-93 is related, we were also invited to speak on that. However, it was simply in tangent, so no, not really, and no, they are not reflected.
    Mr. Cudjoe.
    In fact, I'm the chair of the advocacy committee for the Canadian Association of Black Lawyers. The first time this came to our attention was when the notice for this hearing came up.
    Okay. Thank you.
    You brought it up, Ms. Finestone, and I just want to cover it off. I'm struggling to combine administration of justice charges and the record suspension related to them because they speak to a different issue. We appreciate that marijuana possession is legal now. However, the fact that you have the administration of justice offence means somebody basically gave the finger to the justice system.
    I appreciate from experience that some of the “marginalized” communities, as you termed them—or those with mental health challenges—in the past didn't appreciate the gravity of their actions. I get that—or they're in a spot where they don't comply. There are some pretty serious offences here that impact their moving forward, and currently—this is more a statement than a response—I'm really having trouble seeing how the connection would work.
    One of the things the officials told us last week was that there are about 250,000 Canadians, according to their estimates, who have a record for minor possession of marijuana and who might be eligible for these suspensions, yet only about 10,000 of these people might consider this process. Do either one of you have any thoughts on the accuracy of those numbers, based on your experiences?
     Mr. Cudjoe, do you want to start?
    To be truthful, there's no experience for the numbers, but I think Ms. Finestone has mentioned that point as well. If it's automatic, that changes the number dramatically. If the suspension of the record is automatic and you don't actually have to start the process, that changes the numbers dramatically—
    I'm sorry to interrupt, but what the officials told us is that based on the current legislation, they estimate there will be approximately, in their best guess, 10,000 folks.
    I want to get into something with a little more meat for both of you. Now, on the issue of the process of how this goes about, which is really what I think you were getting to in a minute if I had let you continue, every group that appeared here before us had an issue with the process. I would note that the Auditor General has repeatedly called out departments for implementing systems based on their processes as opposed to a process to serve Canadians in the best possible way.
    In your opinion, does the process that is highlighted in this legislation hinder or help the Canadians who you interact with? Does this process of applying for this application align with the abilities of those who might need it most?
    I would say that it hinders. I believe this committee made a report about how inaccessible criminal record suspensions are. Firstly, a lot of people don't know that they can make them, or they are duped into paying money—crazy amounts of money—when it's actually not that expensive.
    I think the issue I was raising before is that a lot of people don't even know about the law. This is not the only issue on which I've spoken about and engaged with community members on a law that specifically affects indigenous communities and they've never heard of it.
     If people are forced to apply all over again, I think that's why the numbers you're estimating are lower for the people who will actually use it. Right now, it's a fact: there is no access to justice for these groups that I am speaking about.


    They're not my numbers. They're numbers the officials provided to us.
    Mr. Cudjoe, do you have thoughts on that issue?
    I just have a couple of thoughts on it. In my personal practice, a lot of the people I represented were homeless, mentally ill or on the verge of being homeless. They also had very low levels of education. By not making it automatic, it won't help a lot of people who actually have been convicted on possession of marijuana charges. Rather, this bill will help those who are able to read and know what's happening in the legal system.
    Very quickly, to go off that a bit, in Ontario, because legal aid is funded at so low a level and you have to be going to jail before you get legal aid, many people who started off in the criminal justice system on possession of marijuana charges did not have lawyers. They did the easiest thing that was possible for them and took the first deal they could get from the Crown. They did not challenge the search that led to the possession of marijuana and did not try to get anything like a conditional discharge because on that day that wasn't being offered. I ask that the committee look at this whole situation in light of that.
    We'll have to leave it there, Mr. Motz.
    Mr. Cullen, welcome to the committee. You have seven minutes, please.
    Thank you, Chair, and thank you to both of our witnesses. It's illuminating.
    I have what may be a unique experience in this. I grew up in Rexdale, and I now live in and represent a northern community in British Columbia. Friends of mine used to have a term for this when we were growing up: the crime was “walking while black”. Out in my neighbourhood, the chances of getting stopped and potentially picked up if you were young and black were dramatically higher. All of our stats support this. In Vancouver, indigenous people are seven times more likely than white people to be arrested. In Regina, they're nine times more likely to be arrested.
    Mr. Cudjoe, I want to pick up on the point from my Conservative colleague. If a white middle-class kid gets picked up for possession and has access to a lawyer, the chances of their ending up with a criminal record or a secondary record of an administrative justice charge are much lower than those for somebody struggling with poverty, in a racialized community or in a marginalized community. Is that correct?
     That is correct, and that is one group that I focused on, because I had a number of those situations where most parents would not go to the police if they had found marijuana in their kids' clothing. What about the children who are wards of the CAS? All of those charges went straight to the police, and nine out of ten didn't have a lawyer.
    The kid who grew up without parents is now ending up with a record disadvantage and did not have a chance from the start.
    If the Supreme Court has acknowledged that marginalized and racialized people face racism and systemic discrimination in the criminal justice system, would consulting with both of your organizations not have been essential if the government's intent was to attempt to prevent marginalized and racialized Canadians from facing that racism and systemic discrimination?
    I'm confounded that we're at this stage, five weeks to go in a Parliament, when you have these vital amendments to a piece of legislation. The people who historically have been hurt by the criminal justice system—indigenous people, marginalized people and black Canadians—will now have a pardon system that will in effect not help them because of the circumstances in which they live.
    Is this the bill that we're facing right now?
    I'll start with you, Mr. Cudjoe, and then I'll turn to Ms. Finestone with a more particular question.
    I think you've made the point.
    Many times I'm invited to the table. On this issue we were not. I suspect it's because other groups were included, and perhaps somebody thought I was not to be heard. I don't know.


    The Prime Minister's argument for this legislation when he was a candidate was particularly about the effects on marginalized and racialized groups within Canada who are disproportionally affected by marijuana laws.
    Ms. Finestone, I want to challenge my Conservative colleague's friend about folks giving the “middle finger” to the justice system. I've seen cases in which administrative penalties have been put down on young native women who were eight hours from the court room in their home. They had no public transportation, no Greyhound and no money, and they failed to appear. Under that circumstance, a young native woman who is picked up in northern British Columbia for simple possession and who fails to appear is disqualified from receiving a pardon under this legislation. Is that correct?
    That's correct.
    That's a very broad issue. I went to a conference on indigenous criminal justice after the Gladue decision a few weeks ago. They were talking about how they created this indigenous court on a reserve simply because they noticed that there were so many warrants for people for arrest, and people were not showing up to court simply because there was no public transport and they could not go. It's the reality.
    I didn't see this in your notes. Does your organization support Bill C-415?
    That's on expungement.
    Mr. Cudjoe, are you of a similar orientation, that expungement would be a more effective way of leaving these charges fully in the past?
    I really believe that. I have to admit that I'm not fully aware of the cons of expungement, but I really believe these records should be expunged.
    To this point on the circular effect of the criminal justice system on a simple possession charge, an employer asks on employment forms, “Have you plead guilty to a criminal offence?” This a very typical question on that list of questions. Somebody who is able, a young black person in Toronto, Montreal or wherever, and has gone through and secured this relief through the pardon would have to answer that question in the affirmative, would they not?
    That is correct, which is why I scoured my brain to see what could be done. I got the recommendation from our committee that perhaps deeming them regulatory offences, which cover firearms acts and so many other acts, could work.
    This is a workaround you're attempting to make to this legislation that you weren't consulted on.
    That's correct.
    You imagine a scenario in which the Crown, in a second case or trial of some sort, would be able to say to the court, “There's something on this defendant's record, but we can't tell you what it is.”
    No, I was referring to when the criminal records check goes to the employer.
     I see. So, an employer is looking to hire somebody—
    That's correct.
    —in this case a young black person you've dealt with. They've gotten the pardon, under this government's bill, and the employer would be informed that there is something on their record, but we can't tell you what it is. It's left to the imagination, essentially.
    That is correct. The way it's reported is that “We can't tell you what it is.”
    And again, it's left to the imagination of the employer.
    That's correct.
    Okay. Thank you very much.
    We'll move to Ms. Dabrusin for seven minutes, please.
    I was just going to go Ms. Finestone, because I saw her nodding during that piece.
    Could you help the committee by giving more information in response to that last question?
    The last question....
    When someone has received a pardon, there is information given to an employer that “There is a charge out there; we just can't tell you what it's about.”
    What I know most about is the fact that a pardon doesn't take it away, so the moment someone commits another offence, like an administration of justice offence, it pops right back up.
    I think I can speak to that piece. While the intentions are very good, it still ends up showing up.
    Okay. I think we'd need to get more information about how that appears, because everything we've heard until now has been that there is a difference between pardons and expungements, but a pardon does not show up when people get their searches. I just need clarification from someone at some point on that point.
     A lot of this has been about the process—pardon or expungement, either way. Right now, one of the big issues that keep coming up is that people have to apply. I believe in 1996 there was a change in the way the charges appeared and in the way they're recorded. If it were automatic to 1996, and anything post-1996 were an automatic pardon or expungement, would that help?


    Yes, of course.
    I'll ask the same thing of Mr. Cudjoe. Going back to 1996 when there was a change in the way the charges appeared and were recorded, if, from 1996 to now, be it a pardon or an expungement, it were automatic, would that be helpful?
    It would be very helpful.
    All right.
    I understand that pre-1996 there were other record-keeping issues that might change, so that might be something else. But if it were automatic from 1996 onwards, how would we get word out to people to let them know this has happened? That's my other concern. It's a great thing that we've done this, but they might not know. They might be answering questions based on incorrect information. What's the best way for us to let people know this has happened?
    I think a great way is to keep engaging with organizations like NWAC and CABL so that they can tell the people they serve that this is possible. Our organizations do a lot of public legal education and our work is about engaging people in the laws that affect them.
    If you keep organizations like ours in the loop, that will really be helpful to our constituents and, subsequently, yours.
    Mr. Cudjoe, do you have any ideas about that?
    I was thinking that an automatic mailing to the address once the automatic suspension is done would be really helpful.
    Automatic mailing. Okay. Thank you.
    As a procedural point, it's helpful to get some ideas as to how that could work.
    I was quite taken with something that was on page 7, I believe, of your submission, Ms. Finestone. It deals with the issue of wiping out the need to complete sentences. Right now, simple cannabis possession is legal, and yet there might be people who still have unpaid fines or outstanding probation they still need to serve based on that.
    We heard evidence during a previous study on record suspensions that outstanding fines were in fact one of the main hindrances, because your time would start accumulating. Now, here there is no time-accumulating issue. Can you speak a bit to that point, about why it's important to get rid of the need to complete a sentence?
    There was one thing that came to mind. I was looking at that report you're discussing when we made that recommendation. There are people who will never be able to afford to pay their fines, because they simply don't have the money and have to pay their rent or buy food. They would never have access to Bill C-93. As you said, if it's now legal, why aren't we giving people the opportunity to apply?
    Mr. Cudjoe, do you have any thoughts about the need to wipe out in legislation the requirement that people have completed their sentence related to the simple possession before they can qualify for the pardon?
    Ms. Finestone said it best. We are aware of many people who will never be able to pay those fines.
    Both of you have raised the administrative offences. It's complicated, because not everyone is in the position of the scenario that Ms. Finestone has drawn, but it's a compelling scenario.
    It's a compelling story about why somebody might not have been able to be in court or might not have received notices and all of that, but that's certainly not the case for everyone who has those offences.
    Do you have any idea whether there is a fine-tuned way? Say we went to an automatic process. Now we're on an automatic process and the first layer is easy. Post-1996, for everyone with just simple possession, it's gone. Then you have the people who have administrative offences related to that simple possession. It can't as easily work automatically at that point, because now we have other parts to look at, so I guess you need almost a secondary process.
    Have you thought about that? How do we parse that out?


    I think Mr. Cudjoe was going to expand on this issue earlier and perhaps this would be a good opportunity.
    In order to catch the ones that were related strictly to the possession of marijuana charges, you go back to the wording in the charges. Most times it will say you were charged with possession of marijuana on day x and were asked by the court to come on this day and you missed court. Also, on the possession of marijuana charge, it will show that you didn't attend court. Therefore, you get the two pieces of information together and you can prove that the two were directly related.
    That's very helpful. Thank you.
    Mr. Eglinski, you have five minutes, please.
    Thank you to both witnesses for being here today.
    I would like to start with you, sir. You just mentioned that you can go back and check. We've had witnesses here, department officials, who told us the other day, when we were talking about how to deal with those people who might have had a charge reduced from something maybe a little more complicated to minor possession, that there's no way they can really check into that, that it's too complicated. They would only deal with the charge that they were convicted on.
    What you and your counterpart here are saying is that they want to deal with the other charges, such as subsections 145(4) and 145(5), section 733 and subsection 145(3). Some of these might have been summary, and some were indictable, depending on the circumstances. Someone is going to have to look into that and you're complicating the whole process.
    Some states in the United States have come out with a very simple program of which I am in favour. You just press a button. Someone designs the program that goes into CIPC and cleans out those charges for minor possession and they're gone.
    Now you're talking about contacting people. How many of your clients can tell you their addresses since 1996, or where would we get hold of them since 1996? Where have they been?
    It needs to be a much simpler process than you are explaining to us, because you're saying some of your clients do not have the capability of filling these forms out and may not be able to tell you the addresses. We need to be able to get it to the public somehow.
    The simplest system, which I want you both to comment on, is just a program that can be written in this day and age of science and technology and computer programming. A program can be built that can eliminate it just by the press of a button and let the computer do the work instead of putting a human factor in there.
    I see you both putting in a lot of human factor, which is going to be too complicated.
    You can start, and Ms. Finestone finish.
    I have just two issues to respond to. On the first one, when I'm referring to contacting people, that is to inform them that the automatic process has taken place. It doesn't complicate the pushing of the button. The button can always be pushed. It is whether they know if that the system has happened.
    The second part, where it becomes complicated with the human factor, is when you're trying to relate your charges to the possession of marijuana. The marijuana offence can always be gone with a button. We don't want to deprive everybody....
    [Technical difficulty--Editor]
    Then it's up to the government to decide whether they're going to look further into filtered or peer-filtered compliance, and so on. However, to mix the two together at this stage takes....
    [Technical difficulty--Editor]
    We're referring to the harms that have been done to people as a result of their original charge and we want to go further. That's a second question that is nowhere in the legislation that I see and we're just asking the committee to open its mind to that.
     Ms. Finestone.
    One other issue we're talking about is that people tend to be overcharged. In terms of plea deals and the other things you're talking about, and how we ended up with this simple possession charge, sometimes the Crown's just flinging whatever can stick at the wall. We shouldn't let that detract from needing to take away any simple possession conviction on the criminal record.
    I think it is important to do it in stages. If it's easy, do the ones with just simple possession. But I think what we're both trying to say is that the reality for the constituents we serve is that it won't help very much, so we need to continue to keep engaging with our organizations.
    I know NWAC can do the legal education and tell people what's involved, how to apply, where to connect to do that. There are organizations that do this. But we need to get this process started.


    Am I out of time?
    You have a few seconds.
    If the record were automatically gone for everybody who had simple possession, wouldn't the word get out on the street that your record's gone? I have a very difficult time understanding your trying to contact these individuals with a notification that they now don't have a criminal record. If it were automatically done with all criminal records dealing with simple possession in Canada, then why would we need to notify people? It should get out there...newspaper article.
    I think it should be automatic.
    Thank you, Mr. Eglinski.
    Ms. Sahota, for five minutes, please.
    Thanks for all the different suggestions we're getting today. Obviously, there's a lot we're thinking about in terms of amendments to this bill and making it better. Thank you for contributing to that.
    We've talked quite a lot about expungements in the last few meetings. The process of expungement is very new. It wasn't really in existence up until last year. I don't think there's been a lot of experience in undertaking that process.
    Mr. Cudjoe, have you helped people with pardons in the past, and what was the experience like for you or your client when you were helping them with that?
    I have helped people with pardons in the past, but I should say it wasn't my main area. It was just helping them fill in the forms.
    Most of my clients had very low earnings, so this had to be by a pro bono process. Raising the funds to apply for the pardon was the biggest hurdle for many of these people.
    That's interesting. Was it funding for the application that was the hurdle?
    The funding for the application was the biggest hurdle for many young people, because they were in either a paycheque-to-paycheque situation or worse. It's about coming up with the $400 to start. It was really difficult for them.
    It's even worse at this point, because the previous government raised it to six hundred and something. This piece of legislation is addressing that. The fee for the application will no longer exist.
    You said the biggest hurdle is with regard to employment and that a pardon or an expungement would help a person when it comes to employment. After helping these clients, do you know if they had an easier time once they were able to get a pardon?
    In my experience, no.
     Why do you think that is?
    Because as I've said, they're starting from very basic jobs—McDonald's, Walmart, factory jobs—and it's a question that's asked. You can't lie on the form. You can't say....
    I'm sorry; I didn't mean to interrupt.
    Sorry, it's just because I have such minimal time.
    If a person were to get an expungement instead of a pardon, would they be able to answer the question of whether they'd ever plead guilty to a crime in any other way?
    No, you wouldn't be able to answer that in a different way. But if the question were, “Have you ever been convicted of an offence”, then yes they could. That's another question that's asked.
     What question they ask, and how they choose to frame it, depends on the employer—
    That's correct.
    —which could generally change after this bill is implemented, and people and employers know that perhaps the best questions to ask are, “Have you ever smoked marijuana?”, “Have you ever plead guilty?” and “Have you ever been charged?”
    You do raise some very good points. I never thought about that very alarming CAS incident. That's true. People grow up with very different situations and, therefore, have different challenges. Thank you for pointing that out.
    However, in the past, there have been other crimes that are no longer on the books, and the pardon process has always been undertaken and used. I hope we're able to improve it to some degree, but would you agree that this is a step in the right direction and that it will help some people?


    I do agree that it's a step in the right direction and will help some people. For many of our constituents, given their level of education, how much they read and what they do in life, I think it would be a lot more helpful if it were automatic.
    I've had people in court ask if they had a criminal record. They had gone to court and paid a fine, for example, for possession of marijuana, and thought they did not have a criminal record, because they didn't go to jail.
    It would help if it were automatic, and they can learn later on.
    Okay. Thank you.
    Mr. Motz.
    I want to go back to a series of questions asked by both sides. We've seen your suggestions and recommendations, Ms. Finestone, but Mr. Cudjoe, we didn't have an opportunity to have yours.
    If I had asked a question previously about the design process—which seems to be something of a hindrance to those who might need it most.... If you were to design the process based on the clients you deal with, sir, what needs to be done so that those who need it might be able to use it in the manner intended?
    My experience is that for many young people, a possession of marijuana charge began their criminal career, and that led to so many things.
    The administration of justice charges linked to those marijuana charges are crucial for our community, because of the link between those charges and what followed. Unfortunately, if you went on and robbed somebody after that, that's your issue, but the young people facing strictly administration of justice charges are the ones we're concerned about.
    So many times—and I do want to go very quickly to the fail-to-appear comment about people showing their finger to the court—we're talking about 14-year-olds who received a ticket, put it in their pocket and may have lost it. That happened very often. The 14-year-old gets arrested for the fail-to-appear charge, goes to jail and has to go for bail. The Crown offers him a deal and says, “Plead guilty to your possession of marijuana, and all this goes away today,” or “Plead guilty of fail to appear, and you can go home today.”
    If they had a chance to go to trial, they would have been able to say, “Not guilty”, because they did not intend to give their finger to the court. You're 14 years old, and you lost a slip of paper in your pocket.
    You're referring to youth, and I appreciate that their understanding of the jeopardy they face is sometimes wanting, at best, but I am concerned that there are some gaps that will continue with this legislation. To me, one of them is the inconsistency that exists.
    If someone were charged with minor possession prior to this offence, minor possession would have meant exceeding 30 grams. If they've been charged since October 2018, it's an offence to have over 30 grams.
    Other witnesses have told us they have some concerns about that inconsistency. Are you seeing that being a challenge moving forward—that the group with more in their possession than 30 grams will get suspensions immediately, and others will now have to wait five years to qualify for a suspension?


     I have to admit that the number of grams is not my area of expertise. I don't know where the 30 grams came from. From court, I know police experts have stood up and said that normally, if it's over 30 grams, it means you had it for the purposes of trafficking.
    To be honest, I can't really comment on that. There are too many stories to be able to give a comprehensive answer.
    I have one last comment or question before my time is up.
    Regardless of the government telling us that this is going to be of no cost to those who apply, we do know that the...not counting the hours it's going to take to go around to the jurisdictions where your offences were committed and maybe take fingerprints, confirm your identity, ask for your record and all the things that are going to be required in the legislation. There will be a cost associated with that. There will continue to be a cost associated with that. Will those who would benefit the most from this record suspension still be precluded from even applying for it based on those costs?
    Very briefly, please.
    My understanding is that there are even other costs, like the fingerprinting and collecting all the documents, so yes—
    That's what I'm saying. It's potentially $200.
    Right, so it's still not nothing, and it's not going as far as I think it should go.
    Thank you, Mr. Motz.
    Mr. Spengemann, you have five minutes, please.
    Thank you both for being with us, and for your expertise and advocacy.
    I have developed a few categories, just thinking about the issue. They include the impacts of the problem, the cost of the problem and who pays for it, and then there are the legal mechanics. I want to focus my questions on the first two, the impacts on the people you deal with—your clients, the people you're protecting and advocating for—and the question of cost.
    I'm wondering if we could start out by dispelling a couple of myths, just for the record. I think it's happened in other conversations the committee has had, and in our understanding it has certainly been dispelled, but I'd just like to have you on the record as well.
    The first point is that nobody really cares about single possession convictions anymore because cannabis is legal now, and employers really aren't going to be concerned if that comes back on an employee check. What's your response to that?
    We can't control what other employees think, so we shouldn't leave it to their discretion. If the government makes a law, then everyone has to abide by the same law. It's not at the discretion of employees who don't understand the injustices we're talking about.
    In terms of the impact, it's not just youth. If indigenous women are in jail—and they're often single parents—they can't be with their children. That means their children are more likely to be apprehended by the children's aid society. They're also going to be more likely to plead guilty, and they're also going to be more likely to be enmeshed in the criminal justice system.
    Mr. Cudjoe.
    I agree with that answer. The question is whether you will make it to the interview stage if you have anything on your record. If the only thing on your record is the possession of marijuana, how sad that you don't get the interview.
    If I have time, I'll get to some of that in subsequent questions.
    The other point is in terms of who pays. There was debate this morning in the House of Commons on Bill C-93, and one of the lines of argument was, “Well, the median taxpayer really didn't do anything wrong here, and why should she or he pay for the cost of either expungement or a record suspension?”
    I wonder if you could go on the record and just tell us not only why is it important for your clients that these costs be covered by the taxpayer but also why it's an economic advantage for the taxpayer to cover those costs, because of the empowerment that takes place vis-à-vis your clients and their ability to become competitive in the job market and on other fronts as well.
    I think—
    Oh, sorry.
    No, Ms. Finestone, go ahead. I was actually waiting for you to start.
    I think that when we set people up for success, and they're able to contribute to employment and they're not stuck in shelters and they're given housing, then we're actually living in a better world. The other issue—and I think it's something we've all been alluding to—is that for a lot of people, cannabis is part of their lives, but there are certain people who are stopped and noticed by the police who are criminalized for it. I think we all have to acknowledge that everyone is doing it, not just the constituents that we serve, and that we all have a duty to pay for this.


     Yes. That's helpful. Thank you.
    Mr. Cudjoe, do you have anything to add to that?
    The only thing I would add is that anybody who follows the life of young people who are in the criminal justice system will see that at a certain point, they can go left and they can go right. If they have nowhere to go, they end up with gangs and a life of crime and so on. If they have a chance to get that first job, we all pay a lot less. We pay a lot less for the years they spend in jail and for the life that is not helpful to anyone.
    Yes. Thank you for that.
    I have a minute left, so I will hurry with my last question. I'm assuming that it's fair to say that a good proportion of the problem relates to young offenders, and that young offenders are disproportionately affected or impacted. I want to make sure we're comprehensive in terms of intersectionalities. I thought about the possibility of seniors being affected, especially seniors who are in economic circumstances such that they may have to go out and gain some additional funds through employment. Is it your experience that seniors are part of the equation? These are people who may have gotten a conviction in the seventies or eighties who are now aging and are still affected by that record.
    I can speak to criminal records in other contexts. I've been looking at how the Bedford case has been applying. There was an indigenous women who was caught up by the criminal justice system. They were looking at her record, and they said.... I think there might have been more than 20 convictions for soliciting for the purposes of prostitution and failing to appear.
     I think that goes to show that these things stay for a long period of time, regardless. It could be from the seventies.
    Okay. That's helpful.
    We would normally go to you now, Mr. Dubé. Do you wish to have your three-minute round?
    I'm good. Thanks.
    Mr. Picard, you didn't get much of a—
    I'm good.
    You're good. Okay.
    This would normally complete our questioning. Does anyone else wish to take advantage?
    Having said that, I'll do it myself then. The proposal about administrative suspensions simultaneously would add a level of enormous complexity to what is a relatively simple bill. Do you agree with that?
    You would.
    Mr. Cudjoe, do you have a comment on that?
    I would agree with that. My only comment is that the work would continue and that this would not be left behind.
    I agree with that.
    With that, I want to thank both of you....
    Mr. Motz, did you have something?
    I have one quick comment as a follow-up to that.
    If there is the opportunity to have a record suspension for the minor possession of marijuana, and we have these administrative charges that follow, potentially, in some circumstances, I appreciate that this would be an onerous process with an entire case-by-case review of the connection. They would only qualify, based on the legislation, if this were the only charge they had. Is there still not an avenue that then, five years later, if this administrative charge were related to the marijuana suspension, it could be automatically done as well? Is that a possibility? We don't include it immediately upon the marijuana possession suspension, but it is flagged or earmarked or whatever to say that because this is related to that, in the five-year wait period we have currently, this is automatically, then, a record suspension after the fact. Is that something that could be workable?
    Yes, I think so, as long as the first thing that gets taken out is the possession.
    The marijuana: yes.
    Then we could move on in the five years. We don't want it to take that opportunity away.
    Mr. Cudjoe.
    It is workable. I would say that in that particular case, it's easy to put the onus on the person who wants it dropped to get a copy of their information to show that it is directly related to their possession of marijuana.
    Thank you.
    With that, I want to thank the witnesses for their patience with us and for the effectiveness of their witnessing.
    We'll now suspend the meeting and go in camera to discuss the future business of the committee.
    [Proceedings continue in camera]
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