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opinion

This is so frustrating. Because of a perceived flaw, the Senate may send back to the House a bill that would expunge the criminal records of men who were convicted of committing homosexual acts in the years when such acts were illegal.

The Senate may amend the bill and return it to the House of Commons. But with other legislation crowding the agenda, the bill would then be at risk of dying on the order paper.

There are no good choices, here. Pass an imperfect bill or gamble on improving it, knowing you might seal its fate.

In November, Prime Minister Justin Trudeau apologized in the House of Commons on behalf of the Canadian government for past injustices committed against the LGBTQ community.

In essence, the apology came in two parts: to those who were criminally prosecuted simply because they were homosexual; and to public servants and members of the military who were dismissed or harassed because of their sexuality.

On the second part, the news is good. A class-action lawsuit that would see the federal government providing up to $110-million in compensation to affected public servants and members of the military awaits only the final sign-off from a judge in June.

The legislation to expunge criminal convictions passed the House with unanimous consent. Most people thought it would also sail through the Senate. This was not to be.

There’s a legal hole in C-66. While it includes men who were convicted in the years when same-sex acts were illegal, it does not include the thousands who were arrested in bathhouse raids, in the years when the police harassed those establishments. Gary Kinsman, a sociologist and co-author (with Patrizia Gentile) of The Canadian War on Queers considers this highly unjust.

“This is a fundamentally flawed bill,” he said in an interview. “It does not actually address historically unjust convictions.”

Senator Serge Joyal agrees. “I have a constitutional problem,” he explained on Monday. A 2005 Supreme Court decision (R. v. Labaye) made bathhouses (among other things) legal. Unless those convicted in past bathhouse raids can have those convictions expunged, the senator believes there would be two groups of legally similar people treated differently under the law, which would violate the Charter.

Public Safety Minister Ralph Goodale disagrees. In testimony before the Senate, he said that because bawdy-house laws are still on the books, expunging bathhouse-raid convictions are problematic.

And so, he told the Senate human-rights committee, the government decided to proceed with a legislative half-loaf, “rather than delaying this whole process, to the point where we could declare perfection with respect to every previous act that was discriminatory.” Mr. Goodale promised to look at whether bathhouse-raid convictions could be added later by regulation, once the bill had passed.

Mr. Trudeau specifically mentioned the injustice of the bathhouse raids in his apology. The convictions should be expunged.

But if the Senate writes a bathhouse-raid amendment to the bill and sends it back to the House, that bill will have to fight for legislative time. There may no longer be unanimous consent. The bill could die.

Senators, then, face a choice. Pass Bill C-66 knowing that a large group of gay men who deserve to have their criminal records expunged will be left out, or return the bill to the House with a proposed amendment to include those men, which could put the bill at risk.

At the heart of the dispute is the Liberals’ approach to the apology and subsequent measures. While Edmonton MP Randy Boissonnault was appointed to advise Mr. Trudeau on LGBTQ issues, many members of the community complained that there was little consultation.

Had the government been more open in its deliberations, it might have focused more closely on the question of bathhouse raids and found a way to include them in the bill.

Lack of proper consultation is at the root of a very difficult choice that senators must make. It’s never a good day when you’re in search of the least-bad option.