Order Establishing Criteria Related to Certain Offences Listed in the Schedule to the Expungement of Historically Unjust Convictions Act: SOR/2023-29

Canada Gazette, Part II, Volume 157, Number 5

Registration
SOR/2023-29 February 17, 2023

EXPUNGEMENT OF HISTORICALLY UNJUST CONVICTIONS ACT

P.C. 2023-170 February 16, 2023

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to section 24 of the Expungement of Historically Unjust Convictions Act footnote a, makes the annexed Order Establishing Criteria Related to Certain Offences Listed in the Schedule to the Expungement of Historically Unjust Convictions Act.

Order Establishing Criteria Related to Certain Offences Listed in the Schedule to the Expungement of Historically Unjust Convictions Act

Interpretation

Definition of Act

1 In this Order, Act means the Expungement of Historically Unjust Convictions Act.

Criteria

Offences listed in item 7 of schedule

2 An application for an expungement order for a conviction in respect of the offences that are listed in item 7 of the schedule to the Act must include evidence that the following criteria are satisfied:

Offences listed in item 8 of schedule

3 An application for an expungement order for a conviction in respect of the offences that are listed in item 8 of the schedule to the Act must include evidence that the conviction was related to a bawdy-house kept for the practice of acts of indecency and not for the purpose of prostitution, where consensual sexual activity was viewed or engaged in.

Offences listed in items 9 to 13 of schedule

4 An application for an expungement order for a conviction in respect of the offences that are listed in items 9 to 13 of the schedule to the Act must include evidence that the following criteria are satisfied:

Offence listed in item 14 of schedule

5 In the case of a person who has been convicted of the offence of procuring a woman or female person’s miscarriage that is listed in item 14 of the schedule to the Act, if the convicted person used or assisted in the use of the means to procure a miscarriage, the application for an expungement order for that conviction must include evidence that the following criteria are satisfied:

Offence listed in item 14 of schedule

6 In the case of a person who has been convicted of the offence of procuring a woman or female person’s miscarriage that is listed in item 14 of the schedule to the Act, if the convicted person assisted the woman or female person access the means to procure a miscarriage, the application for an expungement order for that conviction must include evidence that the convicted person acted at the request of the woman or female person.

Offence listed in item 15 of schedule

7 In the case of a person who has been convicted of the offence of a pregnant woman or female person procuring her own miscarriage that is listed in item 15 of the schedule to the Act, if the convicted person assisted in accessing the means to carry out the miscarriage, the application for an expungement order for that conviction must include evidence that the convicted person acted at the request of the pregnant woman or female person.

Offence listed in item 15 of schedule

8 In the case of a person who has been convicted of the offence of a pregnant woman or female person procuring her own miscarriage that is listed in item 15 of the schedule to the Act, if the convicted person used the means with the intention of procuring her own miscarriage, the application for an expungement order for that conviction must include evidence that the convicted person was the pregnant woman or female person.

Offence listed in item 17 of schedule

9 In the case of a person who has been convicted of the offence of supplying or procuring a drug or other noxious thing, instrument or thing for the purpose of procuring a miscarriage of a woman or female person that is listed in item 17 of the schedule to the Act, if the convicted person was acting in the capacity of a medical doctor, nurse or midwife, the application for an expungement order for that conviction must include evidence that the following criteria are satisfied:

Offence listed in item 17 of schedule

10 In the case of a person who has been convicted of the offence of supplying or procuring a drug or other noxious thing, instrument or thing for the purpose of procuring a miscarriage of a woman or female person that is listed in item 17 of the schedule to the Act, if the convicted person assisted the woman or female person procure the drug or other noxious thing, instrument or thing knowing that it was intended to be used to procure a miscarriage, the application for an expungement order for a conviction in respect of must include evidence that the convicted person acted at the request of the woman or female person.

Offence listed in item 17 of schedule

11 In the case of a person who has been convicted of the offence of supplying or procuring a drug or other noxious thing, an instrument or thing for the purpose of procuring the miscarriage of a woman or female person that is listed in item 17 of the schedule to the Act, if the convicted person procured the drug or other noxious thing, the instrument or thing knowing that it was intended to be used to procure her own miscarriage, the application for an expungement order must include evidence that the convicted person was the woman or female person .

Offence listed in item 18 of schedule

12 An application for an expungement order for a conviction in respect of an offence that is listed in item 18 of the schedule to the Act must include evidence that any of the criteria set out in sections 2 to 11 that apply to the offence are satisfied.

Coming into Force

Registration

13 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the orders.)

Issues

Historically, Canada criminalized venues that were considered to be safe spaces for the two-spirit, lesbian, gay, bisexual, transgender, queer or questioning, and intersex (2SLGBTQI+) communities, such as bathhouses and 2SLGBTQI+ nightclubs. Swingers clubs, which operate similarly to bathhouses, but whose patrons are typically opposite-sex persons or women engaging in same-sex sexual activity, were also subject to historic criminalization. These venues were raided by police and, as a result, owners, employees and patrons were convicted under the Criminal Code’s bawdy house offences and other indecency-based offences. The targeted application of these laws against the 2SLGBTQI+ communities is considered a historical injustice by the Government of Canada.

Abortion was also once criminalized in Canada. Criminal Code provisions prohibited individuals, particularly women, from seeking abortions and others from administering or helping them access abortion services. The criminalization of abortion prohibited women from exercising their right to choose and prevented their ability to access safe reproductive health care. The Government of Canada considers this prohibition also to be a historical injustice.

When it took effect on June 21, 2018, the Expungement of Historically Unjust Convictions Act (the Act) created a procedure to allow for the permanent destruction of records of convictions for offences of gross indecency, anal intercourse, and buggery (anal intercourse). To ensure expungement is only ordered for individuals convicted for activity that is lawful today, individuals must demonstrate that their conviction meets certain criteria. The Act was designed to allow other convictions to be made eligible for expungement in the future.

In order to make additional offences eligible for expungement, a regulatory proposal is required. Specifically, the Act authorizes the Governor in Council to add offences to the Schedule if the activity no longer constitutes an offence under an Act of Parliament, and the Governor in Council is of the opinion that the criminalization of the activity constitutes a historical injustice. The Governor in Council may also establish the criteria related to an offence in the Schedule that must be satisfied for expungement of a conviction to be ordered.

Background

Bawdy house and other indecency-based offences

Prior to the repeal of the bawdy house offences by former Bill C-75 in June 2019, the Criminal Code prohibited the following: keeping a bawdy house; being an inmate of, or being found in a bawdy house; permitting a place to be used as a bawdy house; and transporting someone to a bawdy house. A “common bawdy house” was historically defined in the Criminal Code as a place kept or occupied for the purpose of prostitution or for the practice of acts of indecency. Historically, police used the “indecency” aspect of the bawdy house provisions to prejudicially target and raid bathhouses, 2SLGBTQI+ nightclubs and swingers clubs. As a result of the raids, individuals who owned, were employed by, or were patrons of these venues were charged under the bawdy house provisions of the Criminal Code. Individuals who provided transportation to these venues could also have been subject to the bawdy house provisions of the Criminal Code.

Bathhouses are venues typically used by 2SLGBTQI+ adults, primarily men who have sex with men. These venues typically charge an entrance fee that provides access to a range of facilities where individuals can socialize, view, or engage in consensual sexual activity; however, money is not exchanged for sexual services. Swingers clubs operate similarly, but sexual activity that is engaged typically involves opposite-sex persons, but may also involve same-sex persons, usually women. Particularly during the 1960s, 1970s, and 1980s, there were a number of police raids of bathhouses, 2SLGBTQI+ nightclubs and swingers clubs. Owners, managers, and employees were typically charged with being a “keeper” of a bawdy house, and patrons were typically charged with being a “found in” or an “inmate of” a bawdy house. Patrons may also have been charged with a separate indecency-based offence, such as “immoral theatrical performance” if they were performing in a nightclub when it was raided, or “indecent acts” if they were engaging in sexual activity.

In its 2005 Labaye decision, the Supreme Court of Canada ruled that swingers clubs are not venues kept or occupied for the practice of acts of indecency, significantly narrowing the legal scope of “indecency.” Following this decision, it is unlikely that the bawdy house or other indecency-based offences could be used in the context of bathhouses or similar venues.

Abortion-related offences

Historically, women who sought an abortion may have been charged and convicted of “procuring one’s own miscarriage.” Those who provided abortion services (e.g. doctors) or assisted women in accessing an abortion (e.g. parents, partner) may have been convicted of “procuring another person’s miscarriage” or “supplying a noxious thing to procure a miscarriage.” The Criminal Code also prohibited “selling/advertising method for causing miscarriage.”

In its 1988 Morgentaler decision, the Supreme Court of Canada ruled that forcing a woman, by threat of criminal sanction, to carry a fetus to term was a profound interference with her right to life, liberty and security of the person (section7 of the Canadian Charter of Rights and Freedoms).

Objective

The objective of the Order Amending the Schedule to the Expungement of Historically Unjust Convictions Act is to make additional historically unjust convictions eligible for expungement, specifically (i) those related to venues found to be kept for the practice of acts of indecency (e.g. bathhouses, 2SLGBTQI+ nightclubs, swingers clubs); and (ii) those related to obtaining, administering, and helping individuals access abortions.

The objective of the Order Establishing Criteria Related to Certain Offences Listed in the Schedule to the Expungement of Historically Unjust Convictions Act is to establish criteria related to those offences to ensure that expungement can only be ordered for activities that are no longer criminal.

Description

Order Amending the Schedule to the Expungement of Historically Unjust Convictions Act

The Schedule to the Act is amended to include the following Criminal Code offences: bawdy house (i.e. keeping a bawdy house, being an inmate of a bawdy house, being found in a bawdy house, or permitting a place to be used as a bawdy house); transporting to bawdy house; indecent show; indecent acts; indecent exhibition; immoral theatrical performance; nudity; procuring one’s own miscarriage; procuring another person’s miscarriage; supplying a noxious thing to procure abortion; and selling/advertising method for causing miscarriage. Expungement applications can be made by individuals who were convicted of these offences, and/or by a representative of a deceased person who had these convictions on their record.

Expungement is also available for service members convicted of those offences who were prosecuted under the National Defence Act (NDA). Any act or omission that is punishable under the Criminal Code is considered to be an offence under the NDA when it is committed by a person subject to the Code of Service Discipline (e.g. a member of the Canadian military). As such, the orders have been written in such a way that eligible convictions prosecuted under the NDA rather than the Criminal Code are eligible for expungement and are subject to the same criteria as those prosecuted under the Criminal Code.

Order Establishing Criteria Related to Certain Offences Listed in the Schedule to the Expungement of Historically Unjust Convictions Act

The following criteria have been established through the Order Establishing Criteria Related to Certain Offences Listed in the Schedule to the Expungement of Historically Unjust Convictions Act. All criteria should be read in accordance with paragraph 12(b) of the Act, which states that the activity in respect of which the application for expungement is made does not constitute an offence under the Criminal Code at the time the application is made.

Bawdy house and indecency-based offences

Until 2013, a “common bawdy house” was defined as a place kept or occupied for the purpose of prostitution or for the practice of acts of indecency. Historically, police used the “indecency” aspect of the bawdy house provisions to prejudicially target and raid bathhouses, 2SLGBTQI+ nightclubs and swingers clubs. Prior to the repeal of the bawdy house offences in 2019, the prostitution aspect of the definition of “common bawdy house” was struck down by the Supreme Court of Canada in 2013. For offences under the bawdy house provisions, criteria have been established to limit expungement to venues kept for the practice of acts of indecency, thereby excluding convictions relating to bawdy houses kept for the purpose of prostitution. Criteria have also been established to safeguard against expunging convictions for offences that were legitimately prosecuted under the indecency provisions, such as convictions related to acts that occurred outside of eligible venues (e.g. sexual activity in a public park).

Individuals convicted of a bawdy house offence are eligible for expungement regardless of whether their conviction related to activity that occurred inside the venue, given that individuals who owned or transported someone to these venues could be charged, whether or not they were inside the venue. Criteria for these offences require that

Individuals convicted of the offences of indecent show, indecent acts, indecent exhibition, immoral theatrical performance, or nudity are eligible for an expungement only if that offence occurred inside a bawdy house. Criteria for these offences require that

Abortion-related offences

The intention of the Act is to recognize that the historic criminalization of certain offences constitutes a historical injustice and that the individual should never have been convicted. As such, all women who were convicted for “procuring one’s own miscarriage,” only need to demonstrate that the conviction related to their own abortion. Individuals convicted for “selling/advertising method for causing miscarriage,” are eligible for expungement without being subject to any additional criteria.

To ensure expungement is only ordered for individuals who provided safe and voluntary abortion services, criteria have been established to exclude persons who performed dangerous and harmful abortion procedures and/or those who performed abortions without the patient’s consent. The criteria also exclude anyone who supplied a noxious substance to cause an abortion if they did not act at the request of the person who had the abortion. For the offence of “procuring a miscarriage,” the record of conviction may not specify whether the conviction was for procuring one’s own or someone else’s, as both offences are contained within section 287 of the Criminal Code.

As a result, individuals convicted for procuring a miscarriage are required to demonstrate that they fall into one of the following three categories:

  1. They are the woman who had the abortion;
  2. If they performed or assisted in the performance of the abortion procedure, they were a medical doctor, nurse or midwife; and the woman who had the abortion consented to it; or
  3. If they assisted the woman in accessing abortion services or arranged an abortion, they did so at the request of the woman who had the abortion.

Individuals convicted for “supplying a noxious thing to procure abortion” are required to demonstrate that they fall into one of the following three categories:

  1. They were the person who took the substance on their own;
  2. If the individual provided the substance in the capacity of a doctor, nurse or midwife, they were acting in that capacity and the woman who had the abortion consented to it; or
  3. If they assisted the woman in obtaining the substance, they did so at the request of the woman who had the abortion.

Regulatory development

Consultation

On November 9, 2018, Public Safety Canada officials, in collaboration with the Department of Justice and the Privy Council Office LGBTQ2 Secretariat, held two one-hour teleconference consultations with a range of 2SLGBTQI+ stakeholders and subject-matter experts concerning which additional offences should be made eligible for expungement. Fourteen individuals participated, including persons with lived experience (e.g. previously convicted), historians and academics, legal experts, and, representatives from 2SLGBTQI+ advocacy groups. Where individuals could not participate in the consultations, written submissions were accepted and, where possible, additional telephone calls were arranged.

When asked which offences should be addressed through amendments to the Schedule to the Act, participants almost unanimously cited the bawdy house offences, indecent acts and vagrancy. Other offences that participants indicated should be considered include immoral theatrical performance, nudity, obscenity, offences related to the criminalization of HIV non-disclosure and prostitution-related offences.

The majority of the cited offences (i.e. bawdy house offences, indecent acts, indecent show, indecent exhibition, immoral theatrical performance, and nudity) are currently being proposed for inclusion in the expungement regime. While vagrancy, prostitution-related offences and criminalization of HIV non-disclosure are not proposed for inclusion under these orders, these offences may be considered for addition to the Schedule to the Act in the future, provided they meet the requirements outlined in section 23 of the Act.

Participants also suggested that if bawdy house convictions were made eligible for expungement, eligibility should not be limited to 2SLGBTQI+ venues. As set out in the Order Establishing Criteria Related to Certain Offences Listed in the Schedule to the Expungement of Historically Unjust Convictions Act, individuals are eligible for expungement provided the conviction is related to their association with a bawdy house kept for the practice of acts of indecency and regardless of whether their bawdy house conviction is related to activity that occurred inside the 2SLGBTQI+ venue, given that individuals who owned or transported someone to these venues could be charged, whether or not they were inside the venue. Participants expressed support for making expungement available regardless of the sexual orientation of the convicted person. Under these orders, individuals convicted for engaging in sexual activity with opposite sex persons in venues such as swingers clubs will be eligible for expungement.

No external consultations were undertaken on the addition of the abortion-related offences to the Schedule.

Prepublication

As the orders are expected to be relieving in nature for affected stakeholders, and are not anticipated to have costs for the general public, an exemption was granted from the regulatory policy requirement to officially publish draft orders in the Canada Gazette, Part I. As noted above, to ensure stakeholders had the opportunity to provide feedback on the details of the proposal related to bawdy house and indecency-based offences, targeted consultations were held in 2018. No external consultations were undertaken in respect of the addition of abortion-related offences, given the limited value in consulting on a controversial topic so polarizing in nature.

Modern treaty obligations and Indigenous engagement and consultation

These orders make expungement available to any individual, including Indigenous Peoples, with convictions for the offences listed in the Schedule. As the orders are relieving in nature, and not expected to have any impacts on the Government’s obligations in relation to rights protected by section 35 of the Constitution Act, 1982, modern treaties and international human rights obligations, Indigenous groups were not specifically consulted.

Instrument choice

The Act was specifically designed so that new offences could be added to the Schedule to the Act in the future by the Governor in Council through an order. There are no other options available to expand the scope of offences eligible for expungement; accordingly, no other instrument options were considered.

Regulatory analysis

Benefits and costs

Costs

Implementation of these orders is expected to result in an estimated total incremental cost of $1,192,104 over two years (fiscal years 2022–2023 and 2023–2024). The majority of these costs are to the Parole Board of Canada (PBC) and the Royal Canadian Mounted Police (RCMP). A search of the RCMP National Repository of Criminal Records identified approximately 18 579 records related to bawdy houses and indecent acts and approximately 67 abortion-related convictions. Acknowledging that some individuals may not wish to pursue an expungement for a variety of factors (e.g. having already received a pardon or record suspension; age; no interest; etc.), and considering the low uptake from the current expungement regime, the PBC has estimated that up to approximately 2 500 requests could be received under this expungement proposal and that approximately 90% of those applications would be accepted. On average, it takes 73 minutes to screen and 277 minutes to complete an investigation and make a decision for an expungement application. It is anticipated that all accepted applications would be processed within two years of the coming into force of the new eligibilities. There would also be incremental costs for applications received beyond that period; however, these are expected to be minimal. Both the RCMP and the PBC expect to be able to process the anticipated volumes using existing resources.

If an expungement application is in respect of an offence for which criteria are set out, the application must include documents that provide evidence that those criteria are satisfied. If it is not possible to obtain the required documents, the applicant must submit a sworn statement or solemn declaration that explains the reasonable efforts made by the applicant to obtain the documents, and the reasons why they could not be obtained, including because they were lost or destroyed, and that affirms the evidence that could not otherwise be provided. While there is no processing fee for submitting an application, applicants may have to pay costs to retrieve the documentation needed for their application. This could include, but is not limited to, the fee for requesting court and/or police documents, and fees associated with obtaining sworn statements/solemn declarations. Furthermore, provincial and territorial police services and courts may be asked by applicants to provide supporting documentation. The increase in eligible applicants will likely increase administrative burden on provincial and territorial police services and courts in responding to requests for documentation. In addition, the PBC may conduct an inquiry with courts and police services to verify information submitted by an applicant, which also constitutes an incremental cost. These costs are not estimated.

When expungement is ordered, PBC notifies the applicant, the RCMP and any courts that, to its knowledge, have in their custody judicial records of the conviction to which the expungement order relates. As soon as feasible after being advised of an expungement order, the RCMP must destroy any judicial records of the conviction in its custody. The PBC or the RCMP also advise other federal organizations (e.g. Canada Border Services Agency, Department of National Defence and the Canadian Armed Forces), municipal and provincial/territorial courts and provincial and territorial police services that, to their knowledge, they may have in their custody judicial records of the conviction to which the expungement order relates and request that the relevant records be expunged. Applicable Canadian police services and courts falling under provincial/territorial or municipal jurisdiction retain their own records and will be advised of the expungement and it is anticipated that they would comply. However, they are not bound by federal legislation. As a result, an increase in expungements ordered will likely increase the administrative burden on the PBC and RCMP, other federal organizations as well as provincial and territorial law enforcement bodies and courts. These costs are not estimated.

The following tables monetize the most significant costs described above over the first two years with a 7% discount rate.

Table 1.1: Costs to applicants (discounted at 7%, 2 years)
Description Cost
Bawdy house /indecency — cost to obtain proof $146,901
Abortion proof cost (time and cost for paperwork) $588
Total $147,489
Table 1.2: Costs to the PBC (discounted at 7%, 2 years)
Description Cost
Cost to process applications (screening, investigating and decision-making) $596,646
Communications $70,093
Total $666,739
Table 1.3: Costs to the RCMP (discounted at 7%, 2 years)
Description Cost
Cost to process approved expungement for bawdy houses offences $374,260
Cost to process approved expungement for abortion offenses $3,616
Total $377,876
Table 2: Total costs to stakeholders (discounted at 7%, 2 years)
Stakeholder Cost
Applicants $147,489
PBC $666,739
RCMP $377,876
Total $1,192,104
Benefits

Through the Act, there is an opportunity to provide recognition and recourse for those unjustly convicted of the offences subject to these orders and left to live with the negative repercussions of the resulting criminal record. A criminal record is a barrier to meaningful employment, housing, education and consequently social reintegration. These orders seek to reduce the stigma and barriers imposed by these convictions, recognizing that those whose record of conviction constitutes a historical injustice should not be viewed as “former offenders.” Their conviction was for an act that should never have been a crime and had the conviction occurred today, it would likely be inconsistent with the Canadian Charter of Rights and Freedoms. If an application for expungement is approved, federal records of that conviction will be destroyed or removed and the individual would be able to state that they were never convicted of the offence in question. Unlike a record suspension/pardon, expungement is available to those both living and deceased. Given that most of the convictions eligible for expungement are a number of decades old, many of those individuals eligible to apply for an expungement order may be deceased. Recognizing that the eligible conviction was unjust and inconsistent with the rights now protected under the Canadian Charter of Rights and Freedoms, eligible representatives can apply for this recognition on behalf of a deceased person, should they choose to do so. The recognition of the historically unjust criminalization of these activities is likely to enhance the personal well-being of the 2SLGBTQI+ community. It will also enhance Canada’s position as an open-minded society, inclusive of diversity.

Small business lens

Analysis under the small business lens concluded that the orders will not impact Canadian small businesses. The orders apply to individuals, not businesses.

One-for-one rule

The one-for-one rule does not apply, as there is no impact on businesses. The orders apply to individuals, not businesses.

Regulatory cooperation and alignment

Given that the objective of the orders is to make additional historically unjust convictions eligible for expungement, the orders do not have a regulatory cooperation component.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that these orders would not result in any positive or negative environmental impacts; therefore, a strategic environmental assessment is not required.

Gender-based analysis plus

A gender-based analysis plus (GBA+) was undertaken for these orders. The inclusion of any offence used in a discriminatory manner against the 2SLGBTQI+ communities is expected to provide continued recognition of this discriminatory history and would positively impact members of those communities. Specifically, the inclusion of the bawdy house and other indecency offences is expected to positively impact men who were convicted for their association with those venues targeted as part of the bathhouse raids. Between 1968 and 2004, there were approximately 38 law enforcement raids of bathhouses and 2SLGBTQI+ nightclubs across Canada, resulting in charges laid against owners, employees, customers and performers under the bawdy house and indecency provisions of the Criminal Code. While bathhouses were principally used by men, there are instances of women-only nights that were targeted by law enforcement. As such, it is possible that women may be among those with a bathhouse raid-related conviction. It is also possible that transgender, gender fluid or non-binary individuals who often attended or performed at subject venues were convicted under the bawdy house or indecency provisions. Similarly, while swingers clubs are typically used for consensual opposite-sex sexual activity, same-sex sexual activity, particularly among women, also takes place. Both women and cisgender individuals could have convictions under the bawdy house or indecency provisions for their association with swingers clubs.

The addition of the abortion-related offences will impact individuals, particularly women, who were convicted for seeking an abortion, which research shows are disproportionately racialized and low-income. Without access to safe, legal abortions, women were forced to seek out dangerous or “back alley” procedures. Several hundred women died per year from botched abortions during its prohibition. Those that survived and were convicted faced a criminal record. Based on well-documented systemic imbalances in the criminal justice system towards Black and low-income individuals, the population with abortion-related convictions is likely to be significantly more racialized and poor than the population as a whole. The orders will also benefit men who performed safe and voluntary abortion procedures as obstetrics and gynecology was a heavily male-dominated medical specialization prior to the 1988 Morgentaler decision. As such, men are more likely than women to have been convicted of performing abortion procedures; however, it is possible that some women employed in the health-care field assisted in the abortion procedure and could benefit from the orders. Both men and women who helped women access safe and voluntary abortion services will also benefit from the orders.

A search of the RCMP National Repository of Criminal Records identified approximately 18 579 records related to bawdy houses and indecent acts and approximately 67 abortion-related convictions. Those who were convicted as a result of these charges will benefit from the symbolic recognition and recourse and may experience a material benefit in the form of a permanently destroyed record of conviction. Given the age of the convictions, it is likely that the majority of individuals who will directly benefit from the orders will be middle-aged or senior citizens, however younger persons may benefit by applying for expungement on behalf of deceased relatives.

No GBA+ mitigation factors have been identified.

Implementation, compliance and enforcement, and service standards

Implementation

Under the Act, the PBC is the agency responsible for accepting, reviewing, and processing applications for expungement. Individuals convicted of an offence listed in the Schedule to the Act, or representatives of a deceased convicted person, can apply for an expungement order through the PBC. While there is no processing fee for submitting an application, applicants may have to pay costs to retrieve the documentation needed for their application. This could include, but is not limited to, the fee for requesting court and/or police documents, and fees associated with obtaining sworn statements/solemn declarations. Upon review of the application, the PBC will determine whether or not to order an expungement. The Act requires that the PBC must order expungement unless there is evidence that the individual does not meet the eligibility criteria. If the PBC orders an expungement, the individual is considered to have never been convicted of the offence. When expungement is ordered, PBC notifies the applicant, the RCMP and any courts that, to its knowledge, have in their custody judicial records of the conviction to which the expungement order relates. As soon as feasible after being advised of an expungement order, the RCMP must destroy any judicial records of the conviction in its custody. The PBC or the RCMP also advise other federal organizations (e.g. Canada Border Services Agency, Department of National Defence and the Canadian Armed Forces), municipal and provincial/territorial courts and provincial and territorial police services that, to its knowledge, may have in their custody judicial records of the conviction to which the expungement order relates and requests that the relevant records be expunged. While they are not bound by federal legislation, courts and police services generally comply with orders to expunge records under the Act.

Both PBC and the RCMP expect to be able to process applications within existing resources.

Communication and outreach

Public Safety Canada messaging and activities will be coordinated with portfolio and federal partners (the PBC, the RCMP, and the Department for Women and Gender Equality’s LGBTQ2+ Secretariat).

The PBC will send stakeholders letters once the new offences become eligible for expungement and update the information on eligible offences on their website.

The orders come into force upon registration.

Operational guidance

Information about expungement and the application process is available on the PBC website at the following link: Frequently asked Questions about Expungement — Canada.ca

Performance measurement

The performance measurement processes ensure that relevant, accurate and timely performance information is available to effectively support the evaluations of programs. Public Safety Canada’s activities and results are structured under four core responsibilities. The Expungement of Historically Unjust Convictions Act (Bill C-66) contributes to Public Safety Canada’s departmental results framework under the core responsibility of community safety.

Contact

Stacey Ault
Director
Corrections and Criminal Justice Division
340 Laurier Avenue West
Ottawa, Ontario
K1A 0P8