Patrizia Gentile, Tom Hooper, Gary Kinsman, Steven Maynard
When, on November 28th, Prime Minister Justin Trudeau delivered the federal government’s apology to Canada’s LGBTQ2S+ communities, a key component included legislation that would provide a process to clear historical convictions for certain same-sex offences. Bill C-66, known as the Expungement of Historically Unjust Convictions Act, was introduced in the House of Commons on the same day the Prime Minister delivered the apology. No consultation with LGBTQ2S+ community advocates with expertise in areas covered by the bill preceded its preparation, and now, having passed second reading, the standing committee charged with studying the bill has stated there will be no opportunity for experts to submit written briefs or appear before the committee, for the government wants the bill back in the House for third and final reading as early as this week.
As researchers who have done considerable investigation into the criminalization of same-sex sexual practices in Canadian history, we believe Bill C-66 has serious flaws and raises many questions that must be addressed. We are very concerned that the customary process of soliciting public input and amending a bill to address its deficiencies is being overridden to rush Bill C-66 through Parliament so that the government’s apologetic words can be seen to be backed up by action. However, if this bill is to work as a meaningful part of the apology process, particularly for those for whom expungement is desired and needed, it requires much more careful consideration and amendment.
Offences Covered by the Bill Too Limited
Bill C-66 allows for possible expungement only for the historical offences of (or attempt to commit) gross indecency, buggery/anal intercourse, and analogous offences under the National Defence Act. These represent only a fraction of the Criminal Code categories used historically to persecute and prosecute same-sex sexual behaviour and expression. Other historically significant offences include:
Bawdy houses. Beginning in the 1970s, police forces have used bawdy house laws in cities across the country to arrest the owners, employees, and hundreds of customers of bathhouses. Bawdy house and related laws have also been central to the policing of sex workers of all gender and sexual identities. While the Prime Minister mentioned bathhouse raids in his apology, the bawdy house laws used to carry out those raids are not included in Bill C-66. As it stands, LGBTQ2S+ people charged and/or convicted as “keepers” and “found-ins” of a bawdy house cannot apply to have their records expunged.
Indecent Acts. There is an equally long history of using the category of “indecent acts” to arrest people in bars, clubs, parks, and washrooms. Indeed, given that an indecent act is a lesser offence than gross indecency or buggery, it has proven easier for the police to use against same-sex social-sexual spaces. As it stands, LGBTQ2S+ people charged and/or convicted with an indecent act cannot apply to have their records expunged.
The Criminal Code’s obscenity provisions and their enforcement through Canada Customs regulations have had a major impact on criminalizing people working for gay/lesbian publications (like The Body Politic) and in lesbian/gay bookstores, such as Little Sister’s (Vancouver) and Glad Day (Toronto). The use of these provisions has also restricted access to gay/lesbian erotic materials since they have defined same-sex representations as more ‘obscene’ than similar heterosexual portrayals. As it stands, LGBTQ2S+ people convicted of obscenity-related offences cannot apply to have their records expunged.
A broad, ill-defined offence, dating from the 19th century, vagrancy has been used historically to police people’s gender-sexual expression, including those the police have viewed as wearing the clothes and/or otherwise engaging in the self-presentation of the ‘wrong’ gender. As it stands, LGBTQ2S+ people convicted of vagrancy cannot apply to have their records expunged.
That all the above-mentioned offences, so significant in the history of criminalizing same-sex activity and gender expression, are not included in the bill constitute serious omissions. We strongly urge the bill be amended to include bawdy house, indecent act, obscenity, and vagrancy in the schedule of offences.
We note that the bill makes provision for the potential addition of other items to the schedule of offences but leaves this up to the Governor in Council. We feel it is important to specify additional items in the bill now, rather than leave this to the whim of the government of the day and its appointed official. Furthermore, according to the bill, the addition of items will be based on the Governor’s “opinion that the criminalization of the activity constitutes a historical injustice.” We question whether a Governor in Council has the requisite historical expertise and community knowledge to make such judgments. To do so, a Governor would have to have a wide-ranging knowledge of the history of the legal and other forms of state regulation of same-sex sexualities.
Questions surround even the offences already included in the bill. For example, before 1969, gross indecency made illegal all sexual relations between male persons whether in private or public. For complex historical reasons that must be taken into account in assessing historical same-sex activity, many sexual encounters took place in state-defined public places. As historians, we can also easily demonstrate the arbitrary and historically shifting definitions of ‘public’ and ‘private’ and their role in criminalizing same-sex activity. We can further demonstrate a history of the differential policing of heterosexual sex in public, in which heterosexual activity has been treated in a much lighter, lenient fashion. The question is: will gross indecency convictions involving activity that occurred in places deemed to be ‘public’ be expunged provided the other criteria are met?
Another area of concern not addressed in the bill relates to the distinctions among convictions, charges, and related records. The bill provides a process for the expungement of records related to convictions. But the historical criminalization of same-sex activity has left behind an extensive paper trail well beyond records of conviction. What about arrest records, police statements, and appearance notices? What about those who were found guilty but received a discharge? What about those who were found not guilty but whose court records remain? Many of these records, although falling short of a conviction, could have serious negative repercussions on people’s lives. For example, the names of people caught up in police raids and arrests were reported in newspapers, regardless of the ultimate outcome of the cases. What remedy does the bill furnish for the expungement of records related to arrest, court appearances, discharges, etc. for historically unjust offences?
Application Process Too Vague and Onerous
The onus is on the person with a conviction to be aware of the Act and apply for expungement. What measures will the government take to publicize the Act and assist in the application process?
Applications must include “documents that provide evidence” the criteria for expungement (see below) are met. Beyond this vague statement, the bill is silent on what specific types of documents/evidence are required and will prove satisfactory for expungement. In the absence of documentation, the applicant must make a sworn statement that “reasonable efforts” were made to obtain documents and the reasons they could not be obtained. What constitutes a reasonable effort – a search through all possible municipal, provincial, and federal archives and other record-keeping bodies (police forces, for instance)? Such record searches are laborious and time-consuming, dependent on the applicant being familiar with record-keeping institutions and practices, and will require the applicant to make numerous FOI requests. Given the intent of the bill is provide a process at no cost to the applicant, will the government reimburse applicants for the costs of FOI requests, official document duplication, and related expenses?
We also have concerns regarding who will be vetting expungement applications. The bill states it will be employees within the Parole Board of Canada. Given that we are dealing with historical convictions for same-sex offences, cases that raise a range of complex issues related to the history of sexuality, we wish to know what efforts are being taken to ensure the review of applications will include people with the appropriate expertise in the history of the criminalization of same-sex sexual activity?
Criteria for Expungement Interpretively Difficult, Discriminatory, and Discretionary
The criteria for expungement as stated in the bill are:
(a) the activity for which the person was convicted was between persons of the same sex;
(b) the persons other than the person who was convicted had given their consent to participate in the activity; and
(c) the persons who participated in the activity were 16 years of age or older at the time the activity occurred.
These criteria raise a range of questions left unanswered by the bill.
How is one supposed to prove the other person consented? What documents does the government imagine would demonstrate this? What if the other person is deceased or no longer known to the applicant? What if there is disagreement between the two parties and/or in the historical documents over the nature of the sexual encounter? In the absence of documentation, the applicant is required to make a sworn statement that affirms the criteria set out in the bill. How will the Parole Board adjudicate these situations and verify sworn statements?
Why is the age set at 16, when, prior to 2008, the age of consent for heterosexual sex was 14? In effect, the bill demands a higher age of consent for same-sex activity than heterosexual activity for periods prior to 2008.
The bill also allows the Governor in Council to establish additional criteria necessary for a successful application. This is a crucial cornerstone of the bill, one too important in our view to leave up to the discretion of an appointed official.
Destruction and Removal of Records a Dangerous Precedent
If an expungement is granted, the bill directs that all judicial and other records of the conviction be destroyed and removed from record-keeping institutions and systems. While we strongly agree with the need to ensure that these records can never be used against those who were convicted, at the same time, the destruction of records goes against government policies related to record retention. Indeed, the bill explicitly overrides the Library and Archives of Canada Act and the Privacy Act. The retention of government records is integral to the democratic process, as a way to check on the policies and practices of the state, and the means by which the histories of LGBTQ2S+ people, including the forms of state persecution directed at our communities, are preserved. As historians, we regard the destruction of records as a troubling feature of the bill and suggest serious thought be given to how historical records can be maintained while at the same time taking concrete steps to guarantee to people whose convictions have been expunged that records will cease to have any material impact on their lives.
Historians agree that in the case of gross indecency legislation, first introduced into Canadian law in 1890, the law was deeply flawed considering its definitional vagueness as to what constituted an act of gross indecency, its catch-all character a crucial component of the criminalization of same-sex activity. Over 125 years later, Bill C-66, designed to remedy historically unjust convictions, is on course to reproduce in a different context a similar vagueness, in addition to a host of other deficiencies sketched out here. In order to avoid repeating the mistakes of the past, we urge that sufficient time be taken to carefully review the problems with the existing bill and appropriate amendments be made before the bill becomes law.
Patrizia Gentile (firstname.lastname@example.org) is Associate Professor of Human Rights/Sexuality Studies at Carleton University. Tom Hooper (email@example.com) is Contract Faculty in the Department of History at York University. Gary Kinsman (firstname.lastname@example.org) is Professor Emeritus of Sociology at Laurentian University. Steven Maynard (email@example.com) is Permanent Adjunct in the Department of History at Queen’s University.
Tom Hooper, “‘More Than Two is a Crowd’: Mononormativity and Gross Indecency in the Criminal Code, 1981-2,” Journal of Canadian Studies, 48:1 (2014): 53-81.
Tom Hooper, “‘Enough is Enough’’: The Right to Privacy Committee and Bathhouse Raids in Toronto, 1978-83.” PhD Dissertation, York University, 2016.
Gary Kinsman, The Regulation of Desire, Homo and Hetero Sexualities (Montreal: Black Rose, 1996).
Gary Kinsman and Patrizia Gentile, The Canadian War on Queers: National Security as Sexual Regulation (Vancouver: UBC Press, 2010).
Steven Maynard, “Through a Hole in the Lavatory Wall: Homosexual Subcultures, Police Surveillance, and the Dialectics of Discovery, Toronto, 1890-1930,” Journal of the History of Sexuality, 5:2 (1994): 207-242.
Steven Maynard, “Police/Archives,” Archivaria, 68 (Fall 2009): 159-182.
Stuart Russell, “The Offence of Keeping a Common Bawdy House,” Ottawa Law Review, 14:2 (1982).
George Smith, “In Defence of Privacy,” Action! (publication of the Right to Privacy Committee), 3:1 (1981).
George Smith, “Policing the Gay Community: An Inquiry into the Textually-Mediated Social Relations,” International Journal of the Sociology of Law, 16 (1988): 163-183.