Steven Maynard is in the Department of History at Queen's University, where he teaches the history of sexuality in Canada.
On Nov. 28, Prime Minister Justin Trudeau delivered a moving apology to Canada's LGBTQ citizens for the federal government's decades of discrimination against our communities. That was the easy part.
The government must now turn those apologetic words into meaningful action. A key component of the government's plan is Bill C-66, the Expungement of Historically Unjust Convictions Act. This legislation would provide a process for people convicted of certain same-sex offences now considered historically unjust to clear their records.
This sounds good, but Bill C-66 is too limited and overly vague. In its eagerness to show us the money (the bill is backed up by $4-million over two years), the government has secured agreement with all parties in the House of Commons to speed the bill through Parliament with very little debate and no amendments.
As a historian who specializes in the study of the criminalization of sexuality in the Canadian past, I have spent nearly three decades researching in the archival court documents and police records that are at issue in Bill C-66. To point out the bill's many problems and to propose solutions, I asked to appear before the parliamentary committee tasked with studying the bill. However, I was told there would be no time for witnesses or even written briefs. This makes a mockery of MP Randy Boissonnault, special adviser to the Prime Minister on LGBTQ issues, who recently said about the limitations of Bill C-66, "That's why committee stage is an important opportunity to look at any possible amendments." As it turns out, the bill went to committee on Monday and, with no more than 45 minutes of perfunctory questions and answers, it sailed through unanimously with no amendments and is headed back to the House for third and final reading.
One can appreciate the desire to get the job done. Those most directly affected by the state's discriminatory practices have waited a long time to have their convictions cleared. All the more reason, then, that there should have been extensive consultation with experts on this history during the drafting of the bill. But this did not happen, and it shows. For example, Bill C-66 allows for the possible expungement of convictions for gross indecency, buggery/anal sex and analogous offences under the Naval Defence Act. Yet these represent only a fraction of the Criminal Code categories used historically to persecute and prosecute same-sex sexual behaviour.
Take the laws against bawdy houses. In his apology, the Prime Minister mentioned police raids of gay bathhouses, but the bawdy-house laws used to carry out those raids are not included in Bill C-66. For the hundreds of men charged in police raids of bathhouses across the country from the 1970s on, Bill C-66 will be of no use.
The same can be said for other Criminal Code provisions used to criminalize same-sex activity. These include indecent acts (used against gay bars and men picked up in parks and other public places), obscenity (used in well-known cases against gay/lesbian bookstores such as Glad Day in Toronto and Little Sister's in Vancouver) and vagrancy (used historically to arrest transgender people). Because none of these offences are included in Bill C-66, anyone convicted under these laws will not be able to apply to have their records expunged.
The bill does include the possibility of adding other offences down the road. But why not take the time to specify and include them now? Why wait for an applicant to discover his or her conviction isn't covered by the legislation and be forced to wait for the undoubtedly long process of adding an offence to the law?
There are also serious problems with the process to apply for expungement. The bill requires "documents that provide evidence" that the person with whom the applicant had sex consented to the activity. But the bill is entirely vague about what types of documents are required for a successful application. I suspect the drafters of the legislation imagined that consent will be revealed in historical court records of same-sex convictions. But offences such as gross indecency made all same-sex sexual relations illegal regardless of consent, so why would you expect to find evidence of consent or the lack thereof in the records of cases for which consent was not even a legal issue?
In the absence of documentation, the bill requires the applicant to make a sworn statement that affirms the sexual encounter was consensual. How will government bureaucrats adjudicate what are often inconclusive historical records or verify sworn statements? On this, the bill is again entirely vague, other than to say officials may conduct a review.
History may provide a lesson here. When gross-indecency legislation, first introduced into Canadian law in 1890 and codified in 1892, was debated in the House of Commons, some MPs were concerned about the vague definition of what constituted an act of gross indecency. More than 125 years later, Bill C-66, designed to remedy historically unjust convictions like gross indecency, is on course to reproduce in a different context its own vagueness, in addition to its overly narrow definition of expungeable offences.
If Bill C-66 is to be a meaningful part of the apology process, then it requires much more careful consideration. Its inadequacies could have been addressed through the customary committee process of public consultation and parliamentary debate, if these weren't being disregarded for reasons of political optics and expediency.