Expungement of Historically Unjust Convictions Act

An Act to establish a procedure for expunging certain historically unjust convictions and to make 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 This Act may be cited as the Expungement of Historically Unjust Convictions Act. Definitions The following definitions apply in this Act. Board means the Parole Board of Canada. (Commission) Chairperson means the Chairperson of the Board designated under section 104 of the Corrections and Conditional Release Act. (président) 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. 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. Effect of expungement 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. Lawful act 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. Royal prerogative Nothing in this Act in any manner limits or affects Her Majesty’s royal prerogative of mercy. Application 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. Application on person’s behalf 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: 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; the person’s child; the person’s parent; the person’s brother or sister; 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; the person’s executor or the administrator or liquidator of the person’s estate; any other individual who, in the opinion of the Board, is an appropriate representative of the person. Form and manner of application 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). Contents of application 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. Sworn statement or solemn declaration If it is not possible to obtain the documents referred to in subsection (2), 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 referred to in section 25 or in an order that could not otherwise be provided. Eligibility 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. Notice The applicant must be advised in writing of the rejection of their application. Incomplete application If the Board determines that an application is incomplete, the Board may return it to the applicant at any time. Inquiries On receipt of an application, the Board may cause inquiries to be made for the purpose of determining whether the applicant is authorized to apply for an expungement order under section 7; and for the purposes of the review under section 12. 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 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 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 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. 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. Notice to applicant The Board must notify the applicant in writing of the expungement order or of its refusal to order expungement. 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. 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. 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. 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. 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. 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. 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. Schedule 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. Conditions 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. 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. 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: the activity for which the person was convicted was between persons of the same sex; the persons other than the person who was convicted had given their consent to participate in the activity; and 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. 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. [Amendment] [Amendments] the offence of gross indecency or an attempt to commit gross indecency under any of the following: section 178 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892; section 206 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906; section 206 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927; section 149 of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; 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; section 157 of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; section 161 of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. the offence of buggery under any of the following: section 174 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892; section 202 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906; section 202 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927. the offence of an attempt to commit buggery under any of the following: section 175 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892; section 203 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906; section 203 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927. the offence of buggery or an attempt to commit buggery under any of the following: section 147 of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; 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; section 155 of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; section 160 of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. 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. 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. the offences relating to a common bawdy-house under any of the following: section 198 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892; section 228 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906, and as amended by section 2 of chapter 9 of the Statutes of Canada, 1909; sections 228 and 229 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927; section 182 of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; section 193 of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; section 210 of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. section 183 of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; section 194 of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; section 211 of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. the offence of doing an indecent act under any of the following: section 177 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892; section 205 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906; section 205 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927; section 158 of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; section 169 of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; section 173 of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985; subsection 173(1) of the Criminal Code, as amended by section 7 of Chapter 19 of the 3rd Supplement to the Revised Statutes of Canada, 1985, section 54 of chapter 6 of the Statutes of Canada, 2008, section 2 of chapter 17 of the Statutes of Canada, 2010 and section 23 of Chapter 1 of the Statutes of Canada, 2012. the offence of publicly exhibiting a disgusting object or an indecent show under any of the following: paragraph 179(b) of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892; paragraph 207(b) of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906; paragraph 207(b) of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927; paragraph 150(2)(b) of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; paragraph 159(2)(b) of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; paragraph 163(2)(b) of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. the offence of openly exposing or exhibiting an indecent exhibition in a public place under any of the following: paragraph 160(b) of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; paragraph 171(b) of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970, and as amended by section 9 of chapter 93 of the Statutes of Canada, 1974-75-76; paragraph 175(1)(b) of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. the offences relating to an immoral, indecent or obscene play, opera, concert, acrobatic, variety or vaudeville performance, performance, entertainment or representation in a theatre under any of the following: section 208 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906; section 208 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927; section 152 of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; section 163 of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; section 167 of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. the offences relating to nudity under any of the following: section 159 of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; section 170 of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; section 174 of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. the offence of procuring a miscarriage of a woman or female person under any of the following: section 272 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892; section 303 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906; section 303 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927; subsection 237(1) of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; subsection 251(1) of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; subsection 287(1) of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. the offence of a pregnant woman or female person procuring her own miscarriage under any of the following: section 273 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892; section 304 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906; section 304 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927; subsection 237(2) of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; subsection 251(2) of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; subsection 287(2) of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. the offences relating to a means or method for preventing conception or causing an abortion or miscarriage under any of the following: paragraph 179(c) of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892; paragraph 207(c) of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906, and as amended by section 8 of chapter 13 of the Statutes of Canada, 1913 ; paragraph 207(c) of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927; paragraph 150(2)(c) of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; paragraph 159(2)(c) of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; paragraph 163(2)(c) of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. the offence of supplying or procuring any drug or other noxious thing, instrument or thing, to procure a miscarriage of a woman or a female person under any of the following: section 274 of The Criminal Code, as enacted by chapter 29 of the Statutes of Canada, 1892; section 305 of the Criminal Code, as enacted by chapter 146 of the Revised Statutes of Canada, 1906; section 305 of the Criminal Code, as enacted by chapter 36 of the Revised Statutes of Canada, 1927; section 238 of the Criminal Code, as enacted by chapter 51 of the Statutes of Canada, 1953-54; section 252 of the Criminal Code, as enacted by chapter C-34 of the Revised Statutes of Canada, 1970; section 288 of the Criminal Code, as enacted by chapter C-46 of the Revised Statutes of Canada, 1985. 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 7 to 17.