Expungement of Historically Unjust Convictions Act

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Sections59

• 1Short title

  This Act may be cited as the Expungement of Historically Unjust Convictions Act.

• 2Definitions

  The following definitions apply in this Act.

• 2[p2]

  Board means the Parole Board of Canada. (Commission)

• 2[p3]

  Chairperson means the Chairperson of the Board designated under section 104 of the Corrections and Conditional Release Act. (président)

• 3Powers 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.

• 4Delegation

  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.

• 5Effect of expungement
• 5(1)

  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.

• 5(2)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.

• 6Royal prerogative

  Nothing in this Act in any manner limits or affects Her Majesty’s royal prerogative of mercy.

• 7Application
• 7(1)

  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.

• 7(2)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:

• 7(2)(a)

  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;

• 7(2)(b)

  the person’s child;

• 7(2)(c)

  the person’s parent;

• 7(2)(d)

  the person’s brother or sister;

• 7(2)(e)

  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;

• 7(2)(f)

  the person’s executor or the administrator or liquidator of the person’s estate;

• 7(2)(g)

  any other individual who, in the opinion of the Board, is an appropriate representative of the person.

• 8Form and manner of application
• 8(1)

  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).

• 8(2)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.

• 8(3)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

• 8(3)(a)

  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

• 8(3)(b)

  that affirms the evidence referred to in section 25 or in an order that could not otherwise be provided.

• 9Eligibility
• 9(1)

  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.

• 9(2)Notice

  The applicant must be advised in writing of the rejection of their application.

• 10Incomplete application

  If the Board determines that an application is incomplete, the Board may return it to the applicant at any time.

• 11Inquiries

  On receipt of an application, the Board may cause inquiries to be made

• 11(a)

  for the purpose of determining whether the applicant is authorized to apply for an expungement order under section 7; and

• 11(b)

  for the purposes of the review under section 12.

• 12Review

  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

• 12(a)

  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

• 12(b)

  that the activity in respect of which the application is made is prohibited under the Criminal Code at the time the application is reviewed.

• 13Order 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.

• 14Refusal

  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.

• 15Notice to applicant

  The Board must notify the applicant in writing of the expungement order or of its refusal to order expungement.

• 16Notification 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.

• 17Destruction 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.

• 18Notification 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.

• 19Destruction 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.

• 20Non-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.

• 21For 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.

• 22Perjury 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.

• 23Schedule
• 23(1)

  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.

• 23(2)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.

• 24Order

  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.

• 25Offences 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:

• 25(a)

  the activity for which the person was convicted was between persons of the same sex;

• 25(b)

  the persons other than the person who was convicted had given their consent to participate in the activity; and

• 25(c)

  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.

• 26Interpretation

  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.

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