Expungement of Historically Unjust Convictions Act (S.C. 2018, c. 11)

Assented to 2018-06-21

Expungement of Historically Unjust Convictions Act

S.C. 2018, c. 11

Assented to 2018-06-21

An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts

RECOMMENDATION

Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to establish a procedure for expunging certain historically unjust convictions and to make related amendments to other Acts

SUMMARY

This enactment creates a procedure for expunging certain historically unjust convictions and provides for the destruction or removal of the judicial records of those convictions from federal repositories and systems. It gives the Parole Board of Canada jurisdiction to order or refuse to order expungement of a conviction. The enactment deems a person who is convicted of an offence for which expungement is ordered never to have been convicted of that offence. The enactment provides that an application for an expungement order may be made in respect of convictions involving consensual sexual activity between same-sex persons related to the offences of gross indecency, buggery and anal intercourse. The enactment provides that the Governor in Council may add certain offences to the schedule and establish criteria that must be satisfied for expungement of a conviction to be ordered. The enactment also makes related amendments to other Acts.

Preamble

Whereas it is now recognized that the criminalization of certain activities constitutes a historical injustice;

And whereas the criminalization of an activity may constitute a historical injustice because, among other things, were it to occur today, it would be inconsistent with the Canadian Charter of Rights and Freedoms;

Now therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

Marginal note:Short title

 This Act may be cited as the Expungement of Historically Unjust Convictions Act.

Interpretation

Marginal note:Definitions

 The following definitions apply in this Act.

Board

Board means the Parole Board of Canada. (Commission)

Chairperson

Chairperson means the Chairperson of the Board designated under section 104 of the Corrections and Conditional Release Act. (président)

Powers, Duties and Functions

Marginal note:Powers of Board

 The Board may, in accordance with this Act, order or refuse to order expungement of a conviction in respect of the offences listed in the schedule.

Marginal note:Delegation

 The Board, subject to the approval of the Chairperson, may confer on any of its employees or class of its employees any of its powers, duties or functions under this Act.

Expungement

Effects

Marginal note:Effect of expungement
  •  (1) If the Board orders expungement of a conviction in respect of an offence listed in the schedule, the person convicted of the offence is deemed never to have been convicted of that offence.

  • Marginal note:Lawful act

    (2) Nothing in this Act has the effect of making unlawful a lawful act or omission related to the expunged conviction that was committed prior to the expungement order.

Marginal note:Royal prerogative

 Nothing in this Act in any manner limits or affects Her Majesty’s royal prerogative of mercy.

Procedure

Marginal note:Application
  •  (1) A person who has been convicted of an offence listed in the schedule or a person referred to in subsection (2) may apply to the Board for an expungement order.

  • Marginal note:Application on person’s behalf

    (2) If a person who has been convicted of an offence listed in the schedule is deceased, any of the following may apply for an expungement order on the person’s behalf:

    • (a) the person’s spouse or the individual who, at the time of the person’s death, was cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year;

    • (b) the person’s child;

    • (c) the person’s parent;

    • (d) the person’s brother or sister;

    • (e) the person’s agent or mandatary, attorney, guardian, trustee, committee, tutor or curator, or any other person who was appointed to act in a similar capacity before his or her death;

    • (f) the person’s executor or the administrator or liquidator of the person’s estate;

    • (g) any other individual who, in the opinion of the Board, is an appropriate representative of the person.

Marginal note:Form and manner of application
  •  (1) An application for an expungement order must be in the form and manner determined by the Board and in accordance with subsections (2) and (3).

  • Marginal note:Contents of application

    (2) Subject to subsection (3), if an application is in respect of an offence for which criteria are set out in section 25 or in an order, the application must include documents that provide evidence that those criteria are satisfied.

  • Marginal note:Sworn statement or solemn declaration

    (3) If it is not possible to obtain the documents referred to in subsection (2), the applicant must submit a sworn statement or solemn declaration

    • (a) 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

    • (b) that affirms the evidence referred to in section 25 or in an order that could not otherwise be provided.

Marginal note:Eligibility
  •  (1) The Board must reject an application that does not relate to an offence listed in the schedule or for which the applicant is not authorized by section 7.

  • Marginal note:Notice

    (2) The applicant must be advised in writing of the rejection of their application.

Marginal note:Incomplete application

 If the Board determines that an application is incomplete, the Board may return it to the applicant at any time.

Marginal note:Inquiries

 On receipt of an application, the Board may cause inquiries to be made

  • (a) for the purpose of determining whether the applicant is authorized to apply for an expungement order under section 7; and

  • (b) for the purposes of the review under section 12.

Marginal note:Review

 Subject to sections 9 and 10, the Board must review the application and the evidence gathered through any inquiries and determine whether there is evidence

  • (a) if the application is in respect of an offence for which criteria are set out in section 25 or in an order, that any of those criteria are not satisfied; or

  • (b) that the activity in respect of which the application is made is prohibited under the Criminal Code at the time the application is reviewed.

Order

Marginal note:Order to expunge

 Subject to sections 9 and 10, if the Board’s review reveals no evidence referred to in paragraph 12(a) or (b), the Board must order expungement of the conviction in respect of the offence for which the application was made.

Marginal note:Refusal

 Subject to sections 9 and 10, if the Board’s review reveals evidence referred to in paragraph 12(a) or (b), the Board must refuse to order expungement of the conviction in respect of the offence for which the application was made.

Marginal note:Notice to applicant

 The Board must notify the applicant in writing of the expungement order or of its refusal to order expungement.

Destruction and Removal

Marginal note:Notification to RCMP

 The Board must notify the Royal Canadian Mounted Police of any expungement order. The Board must also notify any superior, provincial or municipal court that, to its knowledge, has custody of any judicial record of the conviction to which the expungement order relates.

Marginal note:Destruction or removal by RCMP

 As soon as feasible after receipt of the notification from the Board, the Royal Canadian Mounted Police must destroy or remove any judicial record of the conviction to which the expungement order relates that is in its repositories or systems.

Marginal note:Notification by RCMP

 As soon as feasible after receipt of the notification from the Board, the Royal Canadian Mounted Police must provide notification of the expungement order to any federal department or agency, and to any provincial or municipal police force, that, to its knowledge, has custody of any judicial record of the conviction to which the expungement order relates.

Marginal note:Destruction or removal by departments and agencies

 As soon as feasible after receipt of a notification from the Royal Canadian Mounted Police, a federal department or agency must destroy or remove any judicial record of the conviction to which the expungement order relates that is in its repositories or systems.

Marginal note:Non-application

 Sections 17 and 19 apply despite sections 12 and 13 of the Library and Archives of Canada Act, subsections 6(1) and (3) of the Privacy Act and any other provision of an Act of Parliament.

Marginal note:For greater certainty

 For greater certainty, sections 17 to 20 do not apply to documents submitted or produced in respect of an application under this Act.

Disclosure of Information

Marginal note:Perjury investigation

 The Board may, for the purpose of the investigation or prosecution of any offence under section 131 of the Criminal Code (perjury), disclose any information submitted or produced in respect of an application under this Act.

Amendment of Schedule

Marginal note:Schedule
  •  (1) Subject to the conditions referred to in subsection (2), the Governor in Council may, by order, add to the schedule any item or portion of an item.

  • Marginal note:Conditions

    (2) In order to provide for expungement of convictions arising from an activity, the Governor in Council may add any item or portion of an item 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.

Criteria

Marginal note:Order

 The Governor in Council may, by order, establish the criteria related to an offence listed in the schedule that must be satisfied for expungement of a conviction to be ordered.

Same-Sex Sexual Offences

Marginal note:Offences listed in items 1 to 6 of schedule

 An application for an expungement order for a conviction in respect of the offences listed in items 1 to 6 of the schedule must include evidence that the following criteria are satisfied:

  • (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 or the person who was convicted would have been able to rely on a defence under section 150.1 of the Criminal Code, had that defence been available in respect of the offence.

Marginal note:Interpretation

 For the purposes of section 25, consent means the voluntary agreement of the persons to engage in the sexual activity in question, within the meaning of section 273.1 of the Criminal Code.

Related Amendments

R.S., c. 46Criminal Code

Marginal note:R.S., c. 27 (1st Supp.), s. 5(4), c. 30 (3rd Supp.), s. 1(3)(F)

 Subsection 7(6) of the Criminal Code is replaced by the following:

  • Marginal note:If previously tried outside Canada

    (6) If a person is alleged to have committed an act or omission that is an offence by virtue of this section and that person has been tried and dealt with outside Canada in respect of the offence in such a manner that, if that person had been tried and dealt with in Canada, they would be able to plead autrefois acquit,autrefois convict, pardon or an expungement order under the Expungement of Historically Unjust Convictions Act, that person shall be deemed to have been so tried and dealt with in Canada.

Marginal note:R.S., c. 27 (1st Supp.), s. 61(4)

 Subsection 465(7) of the Act is replaced by the following:

  • Marginal note:If previously tried outside Canada

    (7) If a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) or (4) and that person has been tried and dealt with outside Canada in respect of the offence in such a manner that, if the person had been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict, pardon or an expungement order under the Expungement of Historically Unjust Convictions Act, the person shall be deemed to have been so tried and dealt with in Canada.

  •  (1) Subsection 607(1) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

    • (d) an expungement order under the Expungement of Historically Unjust Convictions Act.

  • (2) Subsection 607(3) of the Act is replaced by the following:

    • Marginal note:Disposal

      (3) The pleas of autrefois acquit, autrefois convict, pardon and an expungement order under the Expungement of Historically Unjust Convictions Act shall be disposed of by the judge without a jury before the accused is called on to plead further.

2004, c. 10Sex Offender Information Registration Act

Marginal note:2007, c. 5, s. 46
  •  (1) Paragraph 15(2)(a) of the Sex Offender Information Registration Act is replaced by the following:

    • (a) the person who is subject to the order is finally acquitted of every offence in connection with which the order was made or receives a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code for every such offence or is the subject of an expungement order under the Expungement of Historically Unjust Convictions Act for every such offence; or

  • Marginal note:2007, c. 5, s. 46

    (2) Paragraph 15(3)(a) of the Act is replaced by the following:

    • (a) the person who is subject to the obligation is finally acquitted of every offence to which it relates or receives a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code for every such offence or is the subject of an expungement order under the Expungement of Historically Unjust Convictions Act for every such offence;

SCHEDULE(Section 3, subsection 5(1), section 7, subsection 9(1) and sections 23 to 25)

  • 1 
    the offence of gross indecency or an attempt to commit gross indecency under any of the following:
    • (a) 
      section 178 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892;
    • (b) 
      section 206 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906;
    • (c) 
      section 206 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927;
    • (d) 
      section 149 of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54;
    • (e) 
      section 149 of the Criminal Code, as adapted by section 149A of that Act, as enacted by section 7 of chapter 38 of the Statutes of Canada, 1968-69;
    • (f) 
      section 157 of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970;
    • (g) 
      section 161 of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985.
  • 2 
    the offence of buggery under any of the following:
    • (a) 
      section 174 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892;
    • (b) 
      section 202 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906;
    • (c) 
      section 202 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927.
  • 3 
    the offence of an attempt to commit buggery under any of the following:
    • (a) 
      section 175 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892;
    • (b) 
      section 203 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906;
    • (c) 
      section 203 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927.
  • 4 
    the offence of buggery or an attempt to commit buggery under any of the following:
    • (a) 
      section 147 of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54;
    • (b) 
      section 147 of the Criminal Code, as adapted by section 149A of that Act, as enacted by section 7 of chapter 38 of the Statutes of Canada, 1968-69;
    • (c) 
      section 155 of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970;
    • (d) 
      section 160 of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985.
  • 5 
    the offence of anal intercourse or an attempt to commit anal intercourse under section 159 of the Criminal Code, as enacted by section 3 of chapter 19 of the 3rd Supplement to the Revised Statutes of Canada, 1985.
  • 6 
    an offence under the National Defence Act or any previous version of that Act for an act or omission that constitutes an offence listed in items 1 to 5.
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