Public Safety Minister Marco Mendicino is looking at adding convictions for vagrancy to a list of “historically unjust offences” that people can apply to have struck from their criminal records.
People such as sex workers and the homeless convicted under historic vagrancy laws would be able to apply to have their records erased under the reforms being considered in Ottawa.
In March, the federal government added historic anti-abortion and indecency offences that targeted the LGBTQ community – including those used to justify police raids on gay clubs under “bawdy house” crimes – to the list.
Alex Cohen, director of communications for Mr. Mendicino, said the government is “committed to an equitable and effective justice system” and confirmed the government is looking at adding vagrancy convictions to the list of defunct offences people can apply to have removed.
“An important element of this work is expunging criminal records from situations we now rightfully recognize as unjust, including indecency and bawdy house offences,” he said. “We are currently considering extending expungement to some convictions under vagrancy laws.”
The crime of vagrancy was removed from the Criminal Code in 2019, though at a provincial level there are still laws used to arrest people for acts such as aggressive panhandling.
The Criminal Code in 1892 said a “loose, idle or disorderly person or vagrant” could be subject to a maximum fine of $50 or imprisonment for up to six months, with or without hard labour.
In 1970, the crime of vagrancy was expanded to target people loitering near schools, playgrounds, public parks or bathing areas. People who made a living through gambling or crime, or who had “no lawful profession or calling by which to maintain himself,” faced being charged with vagrancy.
In 1994, Canada’s top court struck down much of that vagrancy law for being overly broad and infringing on personal liberties.
Human-rights lawyer Marcus McCann said most of the convictions for vagrancy are likely to have predated the 1994 ruling, as the police would have been unlikely to have used it to arrest people after the case, even though it was still in the Criminal Code.
He said the vagrancy law had been disproportionately used by the police in the past to convict people who live and work on the street, including sex workers, the homeless, people with addictions and youths, including young Black Canadians.
In March, the federal government expanded the list of offences people can apply to have struck from their records under the Expungement of Historically Unjust Convictions Act to a number of indecency and anti-abortion offences that are no longer crimes.
Mr. McCann, a lawyer at Toronto firm Millard and Co., said crimes that had been used to convict sex workers, which in 2013 were struck from the Criminal Code, should also be included in the review of offences eligible for expungement. He said people were often charged with sex-work offences “in tandem” with vagrancy offences.
In 2013, the Supreme Court, in a landmark case known as Bedford, struck down prostitution laws outlawing brothels, living on the avails of prostitution and communicating in public with clients, saying they were overly broad and “grossly disproportionate.”
The Harper government in 2014 introduced a new set of sex-work laws that are being challenged in Ontario Superior Court by sex workers. The laws make it illegal to advertise or communicate about buying or selling sexual services.
Debra Haak, assistant professor in law at Queen’s University and an expert on sex-work laws, said current criminal offences targeting prostitution aim to reduce or eliminate the market for sexual services, rather than convicting sex workers.
“Under the new legislative scheme, those who provide sexual services for consideration are now immunized from prosecution for their part in most of the criminal offences now applicable to adult prostitution,” she said.
“It seems entirely consistent with this approach to permit expungement of criminal records for historical prostitution offences, particularly those offences that were found unconstitutional by the Supreme Court in the 2013 Bedford decision.”