Falling short

Though it was characteristically brisk in the nation’s capital last Tuesday, partly cloudy and hovering just two degrees above centigrade, inside the centre block of Parliament, there was an unusual feeling of warmth.

Lining the House of Commons’ parliamentary gallery, bearing witness to an historic moment, were a handful of the victims of the government’s “queer purge,” a national security campaign targeted at LGBTIQ2S in the civil service, Military and RCMP.

A stone’s throw away from Parliament Hill, at the Cartier Drill Hall, an even larger group was gathered. Scores of victims, human rights campaigners, and other community members were invited to the off-site viewing. The anticipation in the room was palpable.

At ten minutes past three, Prime Minister Justin Trudeau rose from his seat, delivering a much anticipated apology for Canada’s shameful history of state-sponsored discrimination toward LGBTIQ2S communities.

“Today we acknowledge an often overlooked part of Canada’s history,” the Prime Minister remarked. “Today we talk about Canada’s role in the systemic oppression … and violence against the LGBTIQ2S communities.”

“We are profoundly sorry,” the Prime Minister said solemnly, “to all the LGBTQ2 people across this country who we have harmed in countless ways.”

For over ten minutes, the Prime Minister acknowledged Canada’s complex history of sexual and gender-based persecution, ranging from colonial suppression of indigenous two-spirit traditions, to the queer purge, to the impact of unjust criminal laws, and also the ongoing struggles of queer persons of colour.

At moments, like those gathered, Trudeau wiped tears from his eyes.

Although Trudeau’s apology, and the government’s agreement in principle over reparations, ought to be lauded, the Liberal government’s proposed expungement legislation falls far short of expectations.

Unless amended, the Expungement for Unjust Historical Conviction Act will provide cold comfort for those intended to benefit from the scheme----in particular victims of the Toronto bathhouse raids.

The Just Society Report

The Prime Minister’s apology was the culmination of a restorative justice process launched by the Just Society Committee at Egale Human Rights Trust in February 2016. The Committee, under the direction of constitutional lawyer R. Douglas Elliott LSM, submitted sweeping recommendations for an apology, criminal law reforms, a negotiated settlement for victims of the queer purge, and legislation expunging criminal records for consensual same-sex acts.

Submitted to government in June 2016, Egale proposed a multi-faceted effort, which was originally to be led by retired Supreme Court Justice Iaccobucci. The Committee originally hoped the Prime Minister would make his apology in time for Toronto Pride, and assent to the restorative justice process proposed by Egale.

When the government delayed and went radio silent, victims of the queer purge took matters into their own hands by fall, launching a class action lawsuit. Earlier this week, the Globe & Mail reported the government has earmarked a total of $145 million to settle the suit, including $20 million for legal fees.

Onus on victims

“Those arrested were purposefully and vindictively shamed,” the Prime Minister told the House during one part of his apology, referring police enforcement of anti-gay criminal laws. “Their [the victims] names appeared in newspapers in order to humiliate them and their families,” he continued.

Yet, as a principal co-author of the Just Society Report, which recommended the apology and expungement, I have several concerns with the government’s proposed legislation. It is insufficiently proactive, and does not go far enough to restore the dignity of victims.

The first method we contemplated was a “mass pardon.” In the report, we analyzed the Royal Prerogative of Mercy in Section 748 of the Criminal Code, which enables the Crown to grant criminal pardons through a process managed by the Parole Board of Canada.

We found, however, that this statutory scheme had been historically ineffective. Between 2010 and 2014, for example, we found that only 14 clemency requests were granted, 4 were denied, and 111 were discontinued. The rate of discontinuation, we concluded, testified to the significant administrative hurdles encountered by those seeking a restoration of their dignity before the law.

Egale concluded that a ceremonial mass pardon would be insufficient. Instead, the report proposed an expungement, or disregarding scheme, similar to efforts being undertaken in other Commonwealth jurisdictions. When Egale recommended a mechanism for expungement, the authors envisaged a scheme that would “enact a comprehensive erasing of all criminal records” along with an application process for offences requiring analysis on a case-by-case basis.

We proposed a scheme that would be “as efficient as possible,” including the prospect of “automatic expungements, which apply broadly to some easily identifiable criteria.”

In this vein, the proposed legislation does not go far enough.

Section 7(2) of the proposed Expungement of Historically Unjust Convictions Act stipulates that a person who has been convicted of an applicable offence may apply to the Board for an expungement order. There is no mention of a parallel good faith automatic expungement process based on easily identifiable criteria.

As Egale originally recognized, some offences would require a case-by-case analysis. However, in light of the record of discontinuations under the existing Parole Board pardoning process, which illustrates the attendant administrative hurdles for victims, is unclear that the current system will be sufficient to truly restore the dignity lost. As it stands, unless the legislation is amended to include automatic expungements, there will likely be significant gaps in the expungement scheme.

Making matters worse, sub-sections 8(2) and 8(3) of the proposed legislation stipulate that applications for expungement must be accompanied by evidence or a sworn statement that reasonable efforts to obtain evidence have been made. It is unclear, based on Section 24, what criteria the government will develop to adjudicate these applications, and whether they will be an improvement on the current guidelines employed by the Parole Board of Canada.

More clarity is needed to ensure the Parole Board process is truly comprehensive.

As it stands, the mandatory application process, without any parallel designs for automatic expungement, together with the prospect of an onerous evidentiary burdens, are a step in the wrong direction.

Under the proposed expungement legislation, the government could force victims to relive their suffering, perpetuating the very humiliation cited by the Prime Minister in his apology.

Expungement legislation silent on key Criminal Code provisions

The schedule to the proposed Act tackles several historically discriminatory offences, including gross indecency, buggery and attempts to commit buggery, anal intercourse, and relevant provisions of the National Defence Act.

While this is an important step forward, critical gaps remain. The expungement legislation, for example, is silent on the historic “public morality offences” at issue identified by Egale. Many of these offences were used in targeted sting operations in public parks and elsewhere. Legislation must address the definition of “indecency” throughout the Criminal Code in recognition of harmful historic application toward LGBTIQ2S communities. Section 175(b) of the Criminal Code, which prohibits indecent exposure in a public place, is but one example.

Even more concerning is the proposed legislation’s silence on bawdy house laws. Sections 197, 210, and 211 of the Criminal Code have historically been used to persecute LGBTI2S populations, including the Bath House raids in Toronto.

"The bawdy house law, designed to be a criminal sanction on prostitution, was creatively used by police forces against gay bathhouses starting in 1975,” says Tom Hooper, an expert on queer history.”

“We cannot have reconciliation until all of these anti-LGBTQ2I 'zombie laws' are removed from the Criminal Code, and the convictions expunged,” he added.

Unless the Liberal government rectifies the unbearable onus of inherent in the application process, and recognizes the harm visited by the bawdy house provisions, the proposed legislative initiative -- notwithstanding the Trudeau’s warm apology -- will fall short of meaningfully making amends.