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The Chair: On clause 2 we have amendment NDP-1, but I have received a note from the legislative clerk that we want to deal with NDP-1 and NDP-2 together. Consequential to NDP-2, the suggested ruling is that it is inadmissible, which would render NDP-1 null.
As this is, in effect, a discussion about the scope of the bill, I'm perfectly prepared to hear Mr. Dubé's arguments as to why both amendments are within the scope of the bill.
NDP-1 and NDP-2 both seek to do something we heard from, dare I say, all witnesses—or nearly all, certainly if we exclude the minister—which is to make the process automatic. In other words, instead of putting the burden on individuals seeking to apply.... We did a lot of research on this, my office in particular, because there were a few back-and-forths about certain considerations.
For example, with regard to the Privacy Act, the exemption already exists with the Parole Board to be able to do the work, instead of asking marginalized Canadians who have been saddled with these records for something that is now legal to be doing the work.
Ultimately, I think it's within the scope of the bill, because we'd be putting the onus on the Parole Board as opposed to on Canadians. Especially if it's not an issue of royal recommendation. In other words, if we're not talking about an issue of money, I think the mechanism for the process that's been created by this bill, which seeks to remediate what the minister refuses to qualify as a historical injustice, is certainly well within our prerogative as a committee, if not something that unfortunately could have been done from the get-go in the drafting of the legislation.
As I said, there was enough back and forth with people who are much smarter than me on this to know that the amendment covers all of our bases in terms of giving the appropriate powers to the Parole Board.
I would seek a clear understanding of why it's beyond the scope of the bill. We haven't even gotten to the discussion about expungement yet. This is simply making the record suspension process automatic, and giving the appropriate powers to the Parole Board.
My reaction—and I will turn to the clerk for some clarification here—is that it's a positive obligation on the part of the Parole Board, requiring positive actions. While I agree that we heard a lot of evidence to the effect that this process could be made a lot more, if you will, user friendly by positive actions by the board, it is at this point apparently beyond the scope of the bill.
Essentially, as Mr. McKay said, in this case the scope of the bill is fairly narrow. It creates an onus on the applicant and allows them to apply for a record suspension. It also waives the fee. Because of that fairly narrow scope in this bill, introducing a new concept that would essentially create a positive obligation on the board is beyond the scope of the bill.
I'm just wondering because I can think of tons of amendments that create positive obligations on other entities. I'm not sure I'm following the argument here. For many pieces of legislation that I've studied in committee, we adopted amendments that would clearly force different bodies to undertake actions that were not initially codified in the bill, so I'm not sure if I'm following what the distinction is there.
In other circumstances, there are examples of creating an obligation to report back to the House or something like that, and it's still within what the department does and within what the bill foresees.
In this case, the concept is clearly to allow the applicants to apply on their own initiative. It's kind of meant to restrain the administrative action or the administrative onus, from what I understand. Maybe officials would like to weigh in on that. In this case, the issue of causing the board to identify those records on its own is a new concept.
Under this amendment, from the Parole Board of Canada's perspective, we don't currently have the technological capacity to implement what is outlined in this motion. We'd need to consult with partners. We would want to verify some of the privacy and consent implications that could be involved in automatically ordering a records suspension.
As was mentioned, current process now is that applications are received with supporting documents. The onus is placed on the applicant. Examples would be court documents that would outline the nature of the conviction, dispositions involved, or whether or not the sentence was complete. We don't have any memorandum of understanding or information-sharing framework or infrastructure in place that would permit us to do that when conducting inquiries. I think, from the board's perspective of what we could implement, there are a number of challenges that we'd want to assess.
As for the privacy considerations, as far as I've understood, given that the records suspension branch of the Parole Board is an investigative body, they do have Privacy Act exemptions. We spoke with them, and they confirmed they have access to CPIC, so I do find it a bit unfortunate that we're basically saying it would be too much work and we're not accepting to make it automatic, when the reality is, as has been pointed out by numerous people, that the burden is then put onto marginalized Canadians.
I would also just ask for clarification from the clerk, perhaps. I think back to Bill C-83 when we were studying SIUs and I believe amendments were adopted that created additional criteria for health care professional reviews, for example. I'm not clear on the distinction that creating additional actions on the part of public servants in one instance would be acceptable, but here, because we're prescribing the process in a certain way—even though the end result this amendment seeks would still be one of these individuals having records suspensions—it would no longer be within the scope of the bill. I mean, it's titled “no-cost, expedited”. Ultimately is that what we're relying on, the title? It doesn't seem to make much sense to me.
The general argument is that, when you're going beyond the scope, you're going beyond the purpose of the bill. That's the general argument. I agree that we are down to some fairly narrow points at this point, but I'm perfectly open to any other interpretation or information as to why we would consider this to be beyond the scope.
In the case of adding criteria to something in a bill, when you have a list of criteria, you can always play around within the scope of what's required. In this case, we're going beyond just requirements and giving the board additional responsibility, creating an additional administrative burden. In arriving at our analysis of the bill, we looked at the summary of the bill and we looked to the way the bill is drafted.
The summary of the bill reads as follows:
This enactment amends the Criminal Records Act to, among other things, allow persons who have been convicted under the Controlled Drugs and Substances Act, the Narcotic Control Act and the National Defence Act only of simple possession of cannabis offences committed before October 17, 2018 to apply for a record suspension without being subject to the period required by the Criminal Records Act for other offences or to the fee that is otherwise payable in applying for a suspension.
Basically, the bill does two fairly narrow things. It allows people to apply for a record suspension without being subject to the period required by the Criminal Records Act for other offences, and it waives the fee that's otherwise payable in applying for that suspension. That is what guides us in our analysis, as well as the way the bill is drafted. You'll note there are clauses that specify that the onus is on the applicant to prove various things.
My concluding argument would be that this just proves the point that there was no actual political will to help these Canadians who are saddled with these records.
It's pretty apparent to me—and we've heard now non-partisan analysis—that the onus is on these applicants. I think it's quite disappointing and I would say that, to me, it just defeats the entire purpose. We're basically telling marginalized Canadians to figure it out. We say, “Don't worry, you won't be charged on our end”, but we've talked about the other fees that'll come with it. I find this extremely disappointing.
With respect to you, Chair, I would move to challenge the chair's ruling if that is what it is.
The chair, reluctantly, rules that NDP-2 is inadmissible, therefore making NDP-1 null.
I do take note of the arguments that you've put forward, which I think, frankly, are good arguments and consistent with the evidence, but the interpretation on the scope of the bill is the interpretation on the scope of the bill. There are certain places that even well-intentioned legislators can't go.
With that, the chair is challenged. I think that's a straight-up, straight-down vote.
Yes. In fact, I have a series of amendments. They're all related, so you're going to hear me say the same things.
One of the things that really stood out for me was hearing people talk about the fact that we have now legalized simple possession of cannabis, yet they might still have outstanding fines they have not paid. They might have difficulty covering those costs, and that could pose a barrier to people who are applying for record suspensions.
This amendment, Liberal-1, allows people to get a record suspension for cannabis possession even if they have outstanding fines. What it does as well is allow the waiting period for cannabis possession to be waived, even if the person has other offences on their record that they have met the waiting period for. If they've met the waiting period on the other offences, but they haven't met the waiting period that would normally apply for simple possession, we're saying we're going to waive that so that they can apply for it. But the fee is not waived for the second scenario.
I'm seeking confirmation of how I read this amendment, because I certainly support the intention to make it so that individuals who have unpaid fines or what they call “time served remaining” be able to access this process regardless, in keeping with the testimony we heard.
However, I look at proposed subparagraph (iv), under paragraph (b) “other than”, it says “sections 734.5 or 734.6 of the Criminal Code or section 145.1 of the National Defence Act, in respect of any fine or victim surcharge imposed for any offence referred to in Schedule 3”.
My understanding of that was that it means that, when certain organizations might be doing background checks.... Colleagues will recall that when there were changes brought in by the previous government so that individuals obtaining record suspensions who, for example, were on the sex offender registry, those things would still appear when doing vulnerable checks, background checks and things of that nature. My understanding, reading this amendment, is that even though we're waiving the need to pay the fine, it would still be uncoverable through a background check that the fine remained unpaid, which seems to me to defeat the purpose of the record suspension in the first place. I'm perhaps seeking clarity from smarter people than me to confirm that we have indeed understood that correctly.
I would leave it to the officials to answer the question. My understanding is that it doesn't waive the fine, and that's because it's held by the provinces. It does mean that you're allowed to get the record suspension even though you have not paid the fine. As to how that works—
The way the act is read is...and the legislative clerk has already said we have to keep the scope of these amendments along with the intention in the bill. If that's the case, then those individuals who are applying for this don't qualify because they have administrative charges on there.
If I'm hearing you correctly, are you trying to ensure that administrative charges don't preclude someone from applying for a record suspension for a marijuana minor possession?
I'm just talking about the fines. If their sentence was that they had a fine to pay and they have not yet paid it, they can still apply for a record suspension. It's the fine that was given specifically—
Following through with the fines, if they can put their application in to have their record removed, then why would they ever intend to pay the fine? Have we consulted with the provinces on that?
If I can put the application in, did your program or your amendment have a process in there to follow back on the provinces? We're going to have a whole bunch of people owing money in provinces who don't have records.
I think we should get to the officials to explain all the details of how it works. However, the idea is that we don't stop them from being able to get their record suspension because of the outstanding fine.
Yes, the effect of clause 3, as was mentioned, is that it removes the fact of an outstanding fine as a barrier to applying for a record suspension. You're quite correct that in the two jurisdictions we did consult—Quebec and New Brunswick—they administered the fine collection for those jurisdictions. The federal Public Prosecution Service administers fine collection for all the other jurisdictions.
With respect to your question, sir, about what the incentive is for individuals to pay their fines. It is civilly enforceable. Admittedly, in the two jurisdictions, Quebec and New Brunswick, where they administer the fine collection, those areas probably have more compelling levers to incentivize the payment of fines, for example, up to and including withdrawing a driver's licence. There are not as many levers at the federal level, other than the fact that a fine still remains on your record and is outstanding.
I want to make sure. I don't think my question was entirely addressed. My question is this: For any organization doing a background check, where normally a record that has been suspended would no longer appear—which is the purpose of providing the record suspension in the first place—would that background check then turn up unpaid fines for what are now schedule 3 offences?
No, the effect of the record suspension is still that it is only with respect to the payment of fines that persist. The other effects of the record suspension are valid and will exist for individuals. It would not turn up.
Then how come it's listed in the same enumeration, under the same qualifiers as the proposed subparagraph 2.3(b)(v) in the amendment, which is section 36.1 of the International Transfer of Offenders Act? The other sections, as I said, some of these.... Again, I thought this was a similar provision to what was initially brought in when it was changed to record suspension and we were providing for certain offences still appearing under certain texts.
This amendment to proposed paragraph 2.3(b) enumerates the very limited number of situations in which certain obligations or disqualifications persist. The general effect of the record suspension, that it be kept separate from other criminal records, applies in all situations. These are very narrow exceptions, things such as the firearms prohibitions and driving prohibitions that are referred to in the first part of the provision, and the same for the International Transfer of Offenders Act. The only intention here is to preserve the civil enforcement of the fine.
I'm just confused. You're saying that those are disqualifying or they remain, and proposed subparagraph 2.3(b)(iv) in the amendment specifically refers to “in respect of any fine or victim surcharge imposed for any offence referred to in Schedule 3”. I'm not clear how those other ones can remain on the books, and then that one will not appear anywhere, even if the fine's unpaid.
I can confirm that section 734.5, which is referred to in proposed subparagraph 2.3(b)(iv) in the amendment, is the ability to recover a fine civilly. Section 734.6 is the ability to refuse a permit or licence. Those are two abilities that a federal or provincial government would have. Those are effects of the conviction that will persist.
Section 145.1 is the civil enforcement under the National Defence Act. Those are the only effects of the conviction that would persist.
To your knowledge, when provincial governments have this information, does it get shared among departments? If you're revoking licences and things like that and the provinces are responsible, they would ultimately continue to retain the information of the original offence.
This is a continuation of my issue on fines and trying to resolve it. Each of my amendments seems very wordy and long, but the purpose is that it applies to people with records for other offences in addition to cannabis possession and says that the nonpayment of fines for cannabis possession doesn't make you ineligible for record suspension for those other offences, if you see what I mean.
The fact that you have not yet paid your fine for simple possession of cannabis, as long as you've met all the criteria that you need for the other record suspension that you're seeking, will not be a barrier for you to get that record suspension.
If you don't pay a fine, and it depends on the fine, if they're going by summary conviction, obviously most of them were, you have so long to pay based on the courts, and then a warrant is issued for your arrest. Then if you disappear and you don't get located for the time that your warrant's outstanding, which is until you get located, to me that excludes you from being eligible for applying for this record suspension because you're not in good standing, which the act requires. Then you'd have a failure to comply; you'd have probation....
If I'm hearing you correctly, you're asking for victim surcharges to be removed. You're also asking for administrative charges to potentially be included, so that even though they could be forthcoming, you could still apply for a record suspension, because you will potentially get other charges related to not paying a fine.
This only deals with a nonpayment of a fine. If you have not paid the fine for simple possession of cannabis, it's only that piece, then if you have met your time requirements and everything else for a record suspension on another charge, that will not stop you. I'm not talking about any of them other than administrative pieces, but again, the officials might be able to answer that question in more detail.
Effectively, I'm recognizing that the payment of the fine has been a barrier for people getting record suspensions and that has come up several times. I'm trying to allow these people to get their record suspension for simple possession of cannabis.
Let's get Ms. Dabrusin to clarify what she just said. Your last words were, “for simple possession”, and I thought before that you were referring to somebody who has an outstanding fine for simple possession asking for a record clearance. Is it something else?
The outstanding fine for simple possession of cannabis does not serve as a barrier to being able to get your record suspension on another charge, but I'm not saying we're waiving the fines or sentences in any way with respect to those other charges. People will have to meet all the requirements for those other charges to get a record suspension. All I'm saying is that if the fine for simple possession of cannabis is still outstanding, that's not going to stop you from being able to proceed to get your record suspension.
The amendment seeks to remove the word “only”, which means that individuals who have only a record for simple possession are the only ones who are benefiting from this process, so that even individuals who have other records can still apply.
I think this is particularly important, again, in keeping with what I think the objective of the bill is. Certainly, no one is saying that individuals shouldn't be serving their time or taking care of outstanding fines and whatnot for other offences committed, but I see no reason.... If we truly want to provide these individuals with a record suspension, and if we truly believe that certain individuals have been unfairly targeted by the previous iteration of the law, then I think it only makes sense that all Canadians, regardless of whether they have other elements on their record, should be allowed to benefit from this process.
Our understanding of the proposed amendment is that this would essentially have the effect of expunging, for all intents and purposes, an individual's offence for cannabis. It would still be a record suspension, but it would result in a partial record suspension.
Where an individual has other offences, those offences would stay on the individual's record and show as such. It would have the effect of carving out, if you will, just the offence of simple possession of cannabis. The process with respect to record suspension is that you suspend the record in its entirety, not individual offences.
This is, again, just in keeping with removing barriers from the process, removing the requirement to complete a sentence or fee related to a schedule 3 offence to qualify.
Again, it's pretty clear that there are numerous barriers in the process, as outlined in the legislation, for allowing folks to apply. If it's no longer a crime and if we truly want to give them an expedited process—which we believe should be an automatic expungement, frankly—than there's no reason why we should be expecting individuals to serve time in the various ways prescribed by law for that same offence.
This is the first comment in French today. We'll make our staff work.
I want to know whether anyone is actually serving time for simple possession of marijuana. An inmate may have it in their record, but there are many other things. As a result, the person isn't eligible for a record suspension.
According to the proposed amendment, as I understand it, people who are already in prison would be allowed to apply for a record suspension. However, this would mean that they're in prison for simple possession of cannabis.
The clause can't be applied unilaterally in Canada. The payment of fines in certain jurisdictions is under provincial jurisdiction. As a result, we can't have the federal government impose fines that are currently administered by the provinces.
You cannot apply the law when the fine is administered by a province. It cannot be applied the same way everywhere, because part of it—fines, for example—is administered by Quebec and.... What is the other province?
Yes. You'll recall, Mr. Chair, that I'm here because of the motion this committee passed, in which I am not allowed to vote on things, or move things. The one thing I am allowed to do is to follow your instructions to show up on the time-limited time and speak to my amendments. I do wish to speak to it.
I like to keep it on the record, because I hope that after the next election, no MP in my position will ever be subjected to the motions that were passed in the last government and this one.
In any case, after the election, we'll have more than 12 MPs, so I won't be subjected to it, but it's not fair or nice for any smaller party.
Here's the motion. It's very clear. I think you've all heard the evidence, and I'm sure are sympathetic to the concerns of the Native Women's Association of Canada and the Campaign for Cannabis Amnesty, that the very people we're trying to help with this legislation may be disadvantaged, because they'll be in the midst of their sentence. They won't have been able to pay their fines, so they can't apply, because the time limits, in the way the act currently reads, are such that a person is ineligible to make an application for records suspension until the expiration of their sentence, or including the payment of a fine.
The amendment I'm putting forward here, PV-1, is to say that we would change that to “regardless of whether or not any sentence imposed” or “the payment of any fine, has expired”.
My amendment is basically that Bill C-93, clause 4, be amended by adding after line 12 on page 2 the following:
(3.11) A person who makes an application referred to in subsection (3.1) may do so using electronic means in accordance with regulations made under paragraph 9.1(d).
Right in our mission statement, or our title, it says, “expedited record suspensions”. The fastest way to do it is by electronics, or computer. According to my research, the State of California in one year eliminated as many records as we are told by Mr. Broom.... They got rid of 250,000 records in one year, by going to electronic means.
I do realize that was expungement, but I believe we would not be doing justice in this committee if we didn't encourage one of our government agencies to modernize and simplify the way it does business, and make it easier for our clients out there to make applications. I think that if we were to use an electronic program.... There are people out there who can develop them. We should encourage our government agencies to modernize and be as efficient and as fast as they can be.
If we do not go to some form of electronic monitoring or application, which can get rid of a lot of that groundwork initially—for example, to say if a person is eligible or not eligible—and do a lot of the work that we're now doing manually, I think we'd be doing an injustice. All I'm saying is to put a section in here that gives them the opportunity to look outside and develop a program that might work to make it much more beneficial to people out there, and much quicker for the RCMP and the Parole Board to get rid of these records.
Subsection 3.1 doesn't limit the capacity to submit an application. In addition, the logistical aspects can be handled in keeping with the regulations. It seems redundant to talk about the electronic aspect.
I just want to point out on the record how disappointing I find it that we would be rejecting amendments because we have a backward system that is clearly inadequate. Quite frankly, I think this is so straightforward—the basic stuff to make this system accessible—and we're just throwing in the towel because we're not in the 21st century when it comes to how these things work. It's mind-boggling.
I wanted to state that, for the record, while I thank my colleague for his amendment and offer my support for it.
I'm wondering about the silence of it. Does it mean that if we ever get with the current technology, we would be able to do it, even though we don't actively mention it here? Can we still apply it down the road if record suspension can be sought electronically in, let's say, six months or a year, should this bill pass the House?
What I could speak to is the operational aspect of this proposed amendment. There are two elements here.
The first is the ability to receive electronic applications, and that could include the supporting documents that would be used to determine eligibility for whatever scheme—in this case, the streamlined record suspension process for simple possession of cannabis convictions.
The second aspect is that information the Parole Board of Canada would use to verify eligibility is third party in nature, so we would also need to take into consideration the means of authenticating the documents we would receive from, for example, courts and police services outside of the national criminal repository.
To the legislative clerk, then, my question is more in line with.... The courts now accept electronic versions of things when they're stamped by police departments or courthouses. They're considered to be legit. I don't see that as being a barrier at all.
What I'm asking more specifically is about the language of this. If we don't make mention of it specifically, as Mr. Eglinski's amendment would allow, and we leave it silent, will that preclude the ability to do so, should it ever become possible?
I'd like to make a comment, Chair. When California decided to go to their system, they went outside of their agency and had three different applicants write up programs. I understand that one of the applicants now has a very elaborate program that she says can work internationally on a number of different programs.
All I'm asking is that we look and not ignore it because it's out there. If we sit back, we're doing no justice. We can write all the stuff we want here, but we're not going any further or any quicker. Let's try to make it quicker. All I'm saying is, let's look at electronic aids and see if it can help your agency be more modern.
We can be like CPIC was before CPIC, recording everything by hand and passing it down. CPIC modernized things for us in the RCMP. All I'm asking for is to modernize your agency to help those people get this done a little quicker.
The Parole Board of Canada is always open to looking for ways to modernize the record suspension application process. Certainly, in terms of enabling an electronic or digitized application, we would need to consult and assess the impacts and the available resources in order to pursue something along those lines.
If it's possible, I wouldn't mind inviting my colleague to modify his amendment into a recommendation that can be done after the bill, to bring to the attention of government that, in addition to our amendment, such a recommendation should be taken under consideration so they can proceed with what they're looking for and modernize the system.
At this time, Mr. Chair, I'd like to take that motion and work with the committee to put it in as a part of a recommendation of our report, so that it gives the Parole Board the opportunity to look into and research more modernized techniques.
I have to say, as chair, that this is entirely consistent with the evidence we heard, and I also have to express a frustration. What's the point of these hearings if things don't move forward? We are trying to make the lives of our citizens somewhat easier, and it just doesn't sound right when officials come in and say, “Well, we can't.” It doesn't sound right.
Anyway, that's too much editorial comment from the chair. That's enough.
This amendment would delete lines 26 to 29 on page 2, which concern the onus. It says:
The person referred to in subsection (3.1) has the onus of satisfying the Board that the person has been convicted only of an offence referred to in that subsection.
Again, it is just in keeping with the theme of what we heard through testimony and what we're hearing today, which is unfortunately not getting any kind of support, and that is the fact that these individuals are sometimes far away from the centres where they can acquire fingerprints and background checks, the things that they need to satisfy these requirements. We're talking about individuals who.... If we're talking about a process that's supposed to be a “no cost” one, it's been told to us repeatedly that there actually is a cost associated with it.
A big part of that cost, regardless of what's in this legislation, is due to having to provide all the supporting documents and so on. This is not only tedious but costly as well for individuals who quite frankly will either be taken advantage of by bad actors out there who seek to offer their services, or who quite simply will just not know where to look, regardless of any good intentions the department may have for whatever kind of advertising they have in mind, which is also unclear following the hearings.
Again, if we're going to continue with this non-automatic record suspension process, then I think the very least we could do is to ease the burden a bit with an amendment like this.
This amendment is that Bill C-93 in clause 5 be amended by replacing line 3 on page 3 with the following:
pended, without taking into account any offence referred to in Schedule 3, if the Board is satisfied that
Basically, the purpose of this amendment is so that, for those with criminal offences who are seeking a pardon for their other criminal offences—I'm not talking about cannabis—and have a cannabis possession on their record, that cannabis possession is not taken into account as “bad conduct”. That basically would go against the purpose of our saying that cannabis is now legalized and trying to remove those simple cannabis possessions to begin with.
It would be very harmful for that to be taken into account when individuals are dealing with their other convictions and are trying to seek pardons for those other convictions. They've met the time and they're paying the fees—all of those things—but then there is this cannabis possession charge from maybe a few years back. That is then considered to be bad conduct and they can't even get those other convictions pardoned because of it.
This is similar to amendment NDP-3. It is another amendment that seeks to make it so that individuals who have other items on their criminal records can still obtain the record suspension for simple possession of cannabis. Again, regardless of whatever other offences they may have, it just seems strange that we would have a double standard, where for some people it's okay now because marijuana has been legalized but for others it's not.
Again, this is just trying to remove that double standard that exists, especially for individuals who might have other offences that are also relatively minor. Those individuals in particular are some of the most penalized by the approach put forward in this legislation.
It's nothing personal, Chair, but I will because I think the sentences are directly related to the process of applying for your record suspension. I think that if you're talking about offering an expedited process—as the bill purports to, both in its title and its summary—it has been made clear by members on all sides, and by witnesses, that a barrier to the quickness of that process and the ability to do it is any outstanding sentence.
The amendment seeks to set aside “any sentence that was imposed for that offence that, on the day on which the order is made, has not expired according to law”. Again, it's just removing some of these barriers that exist.
Without it being anything personal, I will challenge the chair on that and ask for a recorded vote.
On this one, I believe, as we've gone forward we've had some conversations, and I do want to acknowledge that I think we may have a way forward on this that will allow it to be passed. Rather than take up any time right now in terms of how we're going to deal with the exception to revocation and exempt records, I'm going to ask Julie if she wants to chime in right away, because I think we have a shared approach.
I'll let Ms. May speak to the motivation behind this amendment and why it stands, but there was a concern that it might have too much breadth as it's currently worded and might apply to convictions well beyond the simple possession of cannabis.
I would like to move a subamendment to PV-3, which reads:
(1.2) A record suspension ordered under subsection (1.1) may not be revoked by the Board under paragraph 7(b).
Again, since Julie has left it for me to speak to the rationale behind this—and it was in the evidence that was before the committee, particularly from Solomon Friedman, who represents the practice of criminal defence—there is a real injustice in having a criminal record hanging over one's head for an offence that is no longer a criminal offence. This lifts the requirement to prove good conduct and to obtain the suspension in the first place.
This subamendment complements that. I am very grateful that we have found a solution in a tweaking of the language in my amendment.
The Board may not revoke a record suspension in respect of an offence referred to in Schedule 3 on a ground referred to in paragraph 7(a) or (b).
Since we're just getting to this now and we can't run through the whole thing, I'm wondering about the distinction between, first of all, the consequences of schedule 3 no longer being mentioned—whereas it is in both my amendment and Ms. May's amendment—and why we're exclusively mentioning only paragraph 7(b) in this subamendment. I referenced paragraph 7(a) also in my amendment.
If I may, the legislative clerk can advise, but my understanding is that PV-3, NDP-8, CPC-2, NDP-9 and NDP-10 all seek to.... Maybe NDP-10 might not fit after line 10, but each of the other ones that I mentioned, up to NDP-9, seem to be amending the same space.
If we do it once, can we keep doing it with the other amendments, or do we have to...?
In this case, you could add it afterwards. We could deal with whatever is left over from Mr. Dubé's amendment. If we're dealing with paragraph 7(b) and Mr. Dubé would like to deal with paragraph 7(a), we could deal with it, but conceptually it would make sense to address the issues at the same time.
I want to hear from our experts because we have three amendments that deal with paragraph 7(b): the amendment proposed by Ms. May; the amendment proposed by the Liberals, who are suggesting a rewording of the provision; and the amendment proposed by Mr. Dubé, which includes paragraph 7(a). I don't have the text in hand, but it can significantly affect the process. It's just a matter of seeing whether we want to proceed step by step and then come back to Mr. Dubé's amendment or proceed with a comprehensive approach.
In other words, I was asking about the removal of the words “Schedule 3”. What difference does that make? Ms. May and I...that's why I referred to my bill. I'll just say PV-3, before the subamendment, referred to schedule 3, and now we're referring to....
I'm going through the bill and the subsection. Is that just cleaning it up, or does that have a real consequence on which offences are covered?
The subamendment has the effect of essentially ensuring that record suspensions that have been granted cannot be revoked where the concept of good conduct is applied, but it applies exclusively to convictions for cannabis possession.
The original amendment in PV-3 was broader in scope and could have resulted in partial revocation, where an individual could, again, have the prohibition on the revocation, if you will, applied to the cannabis but still have other offences revoked.
Procedurally speaking, right now we are dealing with the subamendment, and we can only deal with one subamendment at a time. We could deal with the subamendment and if Mr. Dubé wants, he could either move another subamendment after we've dealt with this one to further amend it and bring it in line with NDP-9, or we can proceed with NDP-9.
I don't mind dealing with my amendments in the order they'll be presented. Again, Chair, I apologize. My intention is not to get us out of order. I'm just trying to understand the concept.
We're talking about proposed subsection (1.1), which refers to proposed subsection 4(3.1). When you go back to that section, I think that's the one that says “offence referred to in Schedule 3”, if I'm following the bill correctly.
With your permission, Chair, I want to clarify the answer that was provided and understand. When we're saying other records would be partially suspended...I apologize. I'm not quite following what the consequence of the original wording was by referring broadly to schedule 3, as Ms. May did in her original wording.
As the motion is drafted without the subamendment, it would mean it would be a little difficult to implement, given that the Criminal Records Act and the PBC operations hinge on actions with the entire record of conviction. The challenge would be that if the amendment stood, the subamendment would narrow it to an impact only of convictions for simple possession of cannabis.
We wouldn't end up in the situation whereby, subject to good conduct, there would be a revocation and let's say there was another offence in addition to the simple possession of cannabis offence, two different actions would be taking place on the record of conviction. On the one hand, there would be no impact, and on the other hand, there would be.
It would be a challenge for us because we wouldn't be dealing with the criminal record as a whole in that instance. However, narrowed to criminal records that would only have convictions for simple possession of cannabis, then that would be consistent with the framework of the Criminal Records Act in dealing with the whole record.
Chair, if I may note just for the record, as part of the debate, that clarification is important, because, again, it goes against the spirit that I want the bill to have, which is—again, previous amendments I've presented have sought this—to have individuals who have other offences able to access this process. I don't want to speak for Ms. May, but I imagine that her intentions might have been similar with regard to the way that our amendments have been drafted. That's an important distinction for me, so the clarification has been helpful.
If I might clarify, my understanding of the way the NDP amendment would work is that, effectively, murderers with simple possession would be in a better position than murderers without a simple possession charge, based on how this works when they're trying to get.... That's effectively why we can't agree to that.
This was actually a recommendation that was made by a number of witnesses. It was for administration of justice offences relating to schedule 3 offences. In other words, to use an example that's been used in committee, if an indigenous person is unable to appear in court for a variety of geographic considerations and it is an appearance in court related to the offence, then we would also suspend that offence.
Again, it seems strange to me that we would want to right the supposed wrong that these individuals have incurred and then not be able to do so by making them continue to have other marks on their record that will inevitably cause them problems. The remediation the bill seeks to give will not actually be obtained by many people who could use it, frankly. I will again challenge the ruling, with all due respect to the chair.
Colleagues, I'm proposing CPC-2 as a fallback mechanism for the government to decide onus on applicants to prove the convictions they had. Under this bill, the onus is that individuals convicted of minor possession of marijuana will have to prove that they were convicted of only that charge. However, I can tell you from experience, and from the testimony we heard before this committee, that there will be individuals whose records cannot be found or have been lost or destroyed. In those cases, they are unable to prove their case through no fault of their own.
In those circumstances, I am proposing a common-sense addition whereby applicants can demonstrate and swear an oath or an affidavit explaining why that's the case. It would enable the Parole Board to review the application and investigate and determine eligibility in that capacity, as opposed to an outright denial in those circumstances. In the interest of ensuring that all of those who are eligible can access the same process, I am submitting this to provide some procedural fairness.
In the absence of some of the amendments I've proposed being in order, much less adopted, to make the process automatic, this is a nice plan B, so it's an amendment that I support.
However, I do seek guidance, perhaps, from the clerk to understand why a process that would have been automatic, such as in NDP-1 and NDP-2, where the board would have been doing the work, was too much of an undertaking for the board and beyond the scope of the bill, whereas here the sworn statements lead to the board's making inquiries to ascertain whether conditions have been met. Certainly, the undertaking is not quite as vast, but it, nonetheless, seems to have the same intention. It's not that I want to jinx this amendment—I am glad it's in order—but I do have some difficulty understanding the distinction there.
In this case, the amendment is dealing more with the issues of parameters and the inquiries that the board would be making. From what we understand, based on our knowledge, they already have the power to make inquiries to ascertain that there has been good conduct...all of those things. In this sense, it's a little bit different from the other amendments because it's affecting the parameters that are already within the scope of the bill—requesting suspension, that the onus on the applicant is fairly narrow—versus the other amendments that are a bit more like new schemes or mechanisms in the bill.
Again, this is just to make sure we're not revoking record suspensions, if ultimately the intention of the bill is to allow individuals to move on from an offence related to something that is now legal.
I did have a question on my own amendment, if I can connect back to the previous amended amendment, which was PV-3. I don't have it in front of me, but I included paragraph 7(a), and the subamendment only mentioned paragraph 7(b).
Can someone help out with what the distinction is there?
An important part of why I opposed the previously amended amendment is that an individual who obtains a record suspension for something that is now legal, and goes on to commit another crime deserves the punishment of that crime. If they're found guilty, that's fine, but it's difficult to square the circle of why that person's record for something that is now legal would be reinstated.
Whether we like those individuals or not, whether we agree with the act that has been committed or not, there is a principle here that this is no longer a crime. In keeping with our position, and that of many of the witnesses, expungement is the way to go. To me it seems to make sense that we would not be putting an additional line on someone's criminal record for something that is now legal because it happened to happen to them when it was illegal. The Parliament of Canada has recognized that individuals should more easily obtain a record suspension should that be the fate of this bill.
That is an important addition there, which was absent from the subamended Green Party amendment.
The chair has changed, but the outcome may be the same.
NDP-10 seeks to go with expungement, simply put. I refer those listening to us to my exchange with the minister and his complete inability to explain the double standard that exists between Bill C-66 and this legislation. Racialized Canadians, indigenous people, lower-income Canadians have all been unfairly targeted by the law in this case. This is what we are seeking to right here. The only way we can truly do that is with expungement.
The minister and other officials did refer to the need for documentation at the border and such. I would refer colleagues to Bill C-66, the section on destruction and removal. In section 21 is states “For greater certainty, sections 17 to 20 do not apply to documents submitted or produced in respect of an application under this Act.” In other words, as the several calls that we made to the Parole Board confirmed, if people lose the confirmation that their record was expunged, they can request a new confirmation. So the minister's argument is complete bunk that you need this magic document at the border.
I believe, from the witness testimony, that this is the right way to go. I understand that the chair has ruled, so I would, with all the respect that I have for him, challenge the chair.
The intent of CPC-3 is that clause 6 be amended by deleting proposed paragraph (b) which strips the Parole Board of the power to cause inquiries to be made to determine the applicant's conduct since the date of conviction.
The following two amendments were suggested. Both CPC-3 and CPC-4 were suggested by the Canadian Police Association, which believes the Parole Board should retain some limited authority and discretion to make inquiries to ensure that some consideration is given to the small number of applications that will be made by people who are repeat or habitual offenders, and to ensure they don't take advantage of a process that is clearly not meant for their specific cases.
As we were told by the association president, we know of situations where applications may be made by offenders where a simple possession charge was given by the courts and it was arrived at as a result of a plea bargain. Once the Parole Board would be able to drill down into those cases and have the authority to do so, the agreement by the Crown and the courts could form a more serious charge. They may have accepted those on the assumption that a conviction would be a permanent record of the offence that was made, and a lesser plea wouldn't have been accepted otherwise.
Similar to CPC-3, this deals more directly with the Parole Board's discretion as to whether granting a record suspension would bring the administration of justice into disrepute. I believe that the bulk of applicants who would apply for this are upstanding citizens, and they'll have no issues in being approved by the board.
That being said, we should still let the Parole Board do its work. If the government doesn't believe that the Parole Board has work to do, then this government should have introduced expungement of records as opposed to record suspensions.
As the alternate chair, since the two motions were mine, I simply want to remind the committee that the Canadian Police Association made these recommendations. As the regular chair said, we must take into account the recommendations of our witnesses and, above all, of people such as members of the Canadian Police Association.
This amendment to clause 6 modifies Bill C-93 to add proposed subsection 4.2(1.1). This proposed subsection clarifies that the board inquiries related to good conduct and disrepute should not be made where the applicant applies for a record suspension under subsection 4(3.1), that is, where the conviction is simple possession of cannabis only.
The proposed subsection further clarifies that neither simple possession, offences referred to in schedule 3, nor the non-payment of associated fines and victim surcharges, will be considered as part of the board inquiries where there are other convictions on the individual's record.
The technical changes just keep rolling, with so much fun.
This basically makes sure that the fines can still be applied even after a record suspension has been granted. That was the part we had talked about in regard to Quebec and New Brunswick. They run their fines programs, so this is in order to keep the system cohesive.
It's been pretty clear from the beginning what I've been trying to do. I'm trying to run a number of amendments that are all connected to try to make sure we can allow for people to access record suspension for simple cannabis possession, even though they might have an outstanding fine for that simple cannabis possession. The issue we've run into is that fines aren't fully within the federal jurisdiction. We're trying to carve out that you can apply and still get your record suspension. However, the fine is still outstanding and you can be asked to pay for it.
I'd just like to follow through. I understand that we're maybe overreaching and giving authority where we can't, but again, it's the following through of my earlier submission and the recommendation that we'll be putting forward at the end. We need to encourage our Parole Board to look at electronic means of recording this information to make it as simple as possible.
My research has shown that there are programs out there that meet the needs of multiple jurisdictions in the United States. All I am basically asking is that we allow the Parole Board to proactively hire a firm or look at design software to help eliminate the problem we have right now and make it more electronically friendly and quicker. That was the idea behind that, but I realize there's a cost to that and we do not have that jurisdiction.
It's just allowing for the collection of the fines by the provinces. That's what this aims to do in Liberal-6. It's just completing it. There were consequential amendments that had to fit in with the original amendments that I made, and this is part of that package.
This minor amendment is to address the question that neither the officials nor the minister was able to answer definitively. It's provided after the fact to the House and to the people of Canada.
When we inquired of him how many people would benefit from this act or how much it would cost, we were provided with basically the officials' best guess. Some academics estimate up to half a million people could use this record suspension process; however, officials estimated that 250,000 are eligible, with about 10,000 who might make use of it. If more than 4% of those who are eligible do make use of this process, the Parole Board will be underfunded based on the numbers that were provided.
The idea of the amendment is to ensure that the costs of free record suspensions for marijuana possession are not passed down to those applying for other record suspensions.
Amendment Liberal-7 does the same thing in two subclauses, which is to exclude the application of the act to synthetic preparations of cannabis that remain illicit. The act was never intended to apply to these substances.
The only exception to the exception is if they are identical to the plant-based cannabis. In those cases, it could be by happenstance or by some other design, but then—
Maybe the officials can weigh in on this. If you're looking just at the record itself, it would indicate minor possession of whatever substance it is. If it's a synthetic cannabinoid, I don't know if the record would ever indicate the schedule that it's from. I don't know if it is. I'm curious to know whether—
Under the Bill C-93, as drafted and with the amendment, if an applicant is seeking a record suspension, they would be providing supporting documents including the court document if it were necessary to ascertain the nature of the convictions. If the court document outlines that this was an offence that involved a synthetic cannabinoid, then that would be found in the court document.
Under the current procedure, the recommendation can't be an integral part of the bill. However, as in the case of Bill C-83, the recommendation will be made at the same time. The analysts would need information to write the recommendation.
There are a couple of different ways we can go about it, but effectively the committee can either go by motion or agree to make certain recommendations. We can either do it by a motion that is then amended to include whatever recommendations are desired, or separate motions to report certain recommendations. My advice would be to include any and all recommendations the committee adopts in one report, but it's up to the committee to decide what those will be.
My understanding is that everything related to the bill itself is done. Maybe we can look at the report where the recommendations can be made as a second step. We can give time to Mr. Eglinski to write the recommendation he wants to propose.
That the Committee recommends that the Parole Board, which has a mandate to deliver services quickly, effectively and efficiently, use technology to enable them to better serve Canadians, and that the Minister has a requirement to provide high-quality services to all Canadians, reflecting past recommendations of the Auditor General on program delivery as well as his mandate from the Prime Minister to serve Canadians. Therefore, be it resolved that, the Standing Committee on Public Safety and National Security recommends the Minister immediately look to implement electronic submissions for record suspensions, in particular for those mentioned in C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis.
Chair, I want to take the opportunity to thank my colleague for his motion. I support it. I think it's important for the committee to say and particularly in the context of.... I know through this process I've been hard on the officials. I think it's important to note here that the Parole Board will do the job it can with the tools it has been given, and it just hasn't been given the tools to help the marginalized people who require this process, a better process than what's in the bill.
We heard this throughout committee. I think another thing we heard throughout committee that I believe we can conclude, seeing how this bill is going to be reported back, is that the absolute bare minimum was done for what should have been part of a flagship piece of this government's agenda.
This committee has agreed in the past that record suspensions could be looked at as automatic. It was part of a study we did when we discovered what a mess this whole thing was.
Mr. Eglinski's recommendation, while good, I'm sure he would agree is just one step in resolving this whole mess. I come away from this process very disappointed, like many I'm sure, but will look forward to supporting my colleague's motion.
I would like to suggest that our comments take into account the preliminary steps the department will have to follow if we give it the mandate to implement an electronic system. It will have to assess, among other things, the resources, the equipment, the development costs and the procedures involved.
We all share the desire to modernize services and facilitate work through electronic means. An optimal approach to reach that goal should take into account the necessary elements, costs and procedures that would give the department the means it currently lacks and would enable it to make its electronic services as accessible and efficient as possible.
My comment had a question mark at the end. Does the recommendation as written engage the department to undertake steps to acquire electronic services? I don't have the text in front of me, so I am relying on my memory.
My first line, I think, might clarify that to you. It states that the committee recommends that the Parole Board “has a mandate to deliver services quickly, effectively and efficiently”. Then I go into using the technology. It's just mandating them to look beyond where they are to the modern technology that will enable them to do it. That's all we're asking them to do.
If I may clarify, in answer to Mr. Picard, the actual “be it resolved” states that the standing committee “recommends the minister immediately look” at the implementation of electronic systems for record suspensions.
Okay. The recommendation I have is basically in terms of the fees that are required. We heard from a lot of witnesses that although we're waiving the actual cost of the record suspension, there are other fees involved.
My recommendation is that:
After having studied Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, and having studied the Record Suspension Program pursuant to Motion No. 161, the Committee wishes to make the following recommendation to the Government:
That, given witnesses have expressed concerns about additional financial costs in the pardon application process, such as acquiring copies of court and police documents, and given that the Government has recognized the importance of reducing the financial burden of applying for a pardon as evidenced by Bill C-93's proposal to waive the $631 fee, the committee strongly encourages the Department of Public Safety and National Security to study further ways to reduce costs associated with applying for a pardon.
We cannot be against virtue, but I just want to say again how discouraging all this is. We have a government that has been in power for four years. We have carried out a study that was entrusted to us through a motion from a Liberal member. Yet here we are today making another recommendation to say the same thing.
Everyone has known this for 10 years, since the amendment was adopted. So it is unfortunate to have to make recommendations to a department when, ultimately, the minister could have taken action and corrected in a broader way than this bill the damage caused by the program. It is the 11th hour, we are three months away from an election campaign, but nothing has been done yet.
I will vote in favour of the recommendation because we cannot be against virtue, but I deplore all these good intentions we are expressing while a minister, who has had four years to make these changes and to have a real impact on people's lives, has done nothing.
Yes, I have a correction to my recommendation. I said that it encourages the “Department of Public Safety and National Security”. I mixed up the name of the committee with the actual department. It is actually the “Department of Public Safety and Emergency Preparedness”.
I'd like to echo the comments of Mr. Dubé and agree. I think I remember that when we looked at M-161, we made a very similar recommendation to the minister, and the minister agreed that he'd be doing exactly this. I'm wondering whether we actually need that again, because we did talk about it, I know, in M-161, almost word for word. Is he going to act that much faster because we have two recommendations? I don't know.
I think it's good to re-emphasize it because this is a new set of witnesses we've heard from. It doesn't hurt for us to re-recommend it. Obviously it is something we've heard from many witnesses. From Matthew's comments, although he's disappointed, it is the step he wants taken.