Law permitting destruction of LGBT criminal records has seen low uptake so far

Despite efforts to promote the program, only a handful of people have applied to have criminal records for homosexual acts expunged after Parliament passed legislation to formally erase the unjust convictions four months ago.

Expungement of Historically Unjust Convictions Act came into force in June

A federal law that allows people convicted of defunct offences linked to homosexuality to apply to have their records wiped has seen few applications so far. (Mark Blinch/Canadian Press)

Despite efforts to promote the program, only a handful of people have applied to have criminal records for homosexual acts expunged after Parliament passed legislation to formally erase those unjust convictions four months ago.

As of Oct 1, the Parole Board of Canada (PBC) had received just seven applications for an expungement order since the program was launched on June 21, 2018. So far, only two expungements have been ordered; the other applications are still under review.

"While initial uptake on the program has been light, due to the historical nature of many of the convictions likely eligible for expungement, PBC anticipated that it could take some time for potential applicants to gather the documentation needed in order to apply," said PBC spokesperson Iulia Pescarus Popa.

There are an estimated 9,000 historical records of convictions for gross indecency, buggery and anal intercourse in RCMP databases.

The Expungement of Historically Unjust Convictions Act, brought in as part of Prime Minister Justin Trudeau's apology to LGBT Canadians for past acts of discrimination by the authorities, allows people who were criminalized for same-sex activity between consenting adults to apply for the "the destruction or permanent removal" of those records, according to a government media release.

Many of those people are now elderly or have died with their records intact. The law allows their spouses, parents, siblings, children or legal representatives to apply for record expungement on their behalf.

Gary Kinsman, a sociology professor at Laurentian University who lobbied for the legislation and a formal government apology to LGBT Canadians, blamed the low uptake on a lack of promotion and an onerous application process.

He said he has heard from people who are having "major difficulties" accessing the police or court records they need in order to file the application. Many of those records are decades old.

'Arduous task'

"You already have people who may not even know about this, but if they do learn about it, if it actually becomes an arduous task to try to collect the documentation they need, that may not be something they are willing to pursue," he said.

"It also opens up for many people quite traumatic events in their lives in terms of these convictions, which may have outed them, might have severely hurt their employment."

The PBC has launched a new web page devoted to expungement, with an application guide, a form and other information to assist applicants, including a 1-800 line and a dedicated email address.

Prime Minister Justin Trudeau wipes his eye while he is applauded as he delivers a historic apology to LGBT people in Canada in the House of Commons on Nov.28, 2017. (Adrian Wyld/The Canadian Press)

It also has worked with other government departments to distribute information to the public, stakeholders and seniors' advocacy groups, prisoners' rights organizations, police services, courts and law societies to raise program awareness. The PBC is also preparing a "how to" video that will be posted on its website and YouTube.

Kinsman said the government should increase awareness with ads in mainstream media and specialized LGBT publications, and assign employees to help individuals navigate the application process and obtain the necessary documentation.

"If there's not specific people assigned to help these individuals, they're basically going to be lost. They're lost in a bureaucratic world," he said.

Expungement vs. pardon

Expungement is different from a pardon or record suspension — because it leads to the individual being deemed to have never been convicted of the offence in the first place.

All judicial records are destroyed through an expungement order, while a record suspension keeps those records separate and apart without permanently removing them.

Ron Rosenes was charged, found guilty and fined for being found in a bawdy house in 1981. He does not have a criminal record but wants all of the police and court records related to his trial expunged. His request for trial records has so far proven unsuccessful, and he has heard no response from the parole board after submitting an application in July.

Ron Rosenes says the list of offences eligible for expungement should be expanded to include 'bawdy house' offences and others. (Ron Rosenes)

Rosenes said the number of offences eligible for expungement is too limited, and that it should be expanded to include bawdy house and other offences.

"If you're going to have a law that expunges the records of people except those who were arrested using a given provision, then that's not fair," said Rosenes, who received the Order of Canada for his advocacy work on HIV.

Testifying at a Senate committee in April, Public Safety Minister Ralph Goodale defended the decision to limit the number of offences at first. He said the government's initial focus is on the "defunct" offences, to avoid any delay that could be caused by including other offences that could prove more challenging to deal with.

"We have quite deliberately drafted the bill in such a way as to leave the door open for other offences, after due consideration, to be added in the future," Goodale said at the time.

His office referred queries to the office of Justice Minister Jody Wilson-Raybould. Her spokeswoman could not provide any information on next steps, saying only that there is no update at this time.