Senator Batters: That’s what I’m here for.

Senator Harder, last spring you were the sponsor of Bill S-4, which was, I understand, identical to Bill S-2. The Trudeau government pressed to get that bill passed very quickly through the Senate so that the House of Commons had a considerable time to pass it prior to adjourning for the summer, when they prorogued and called the election. Yet despite Bill S-4 passing the Senate with weeks available before the House of Commons adjourning, the Trudeau government not only didn’t call it for a vote, it didn’t even call that particular so-called priority legislation for first reading or any debate in the House of Commons. Senator Harder, why not? And how can senators know that your new Bill S-2 will not once again be ignored by the Trudeau government in the House of Commons after they try to rush it through the Senate?

Senator Harder: Yours is a very relevant question and one that I sought to answer in my comments. It was a disappointment to me, and I am sure, hopefully, to most senators, that the other place did not deal with this legislation. It arrived in the other chamber, albeit in May, but we have seen other bills dealt with in that time frame, so it wasn’t an improbable mission. But you will also know that in a minority government in the other place, there were discussions amongst leaders, and all of the partners necessary to pass a piece of legislation were not onside to advance this bill in a fashion which would see it get to Royal Assent. I regret that, but that’s politics and the reality we’re facing.

The good news is the same bill is being reintroduced within a month of the election to demonstrate to the other chamber, I hope, not only the will of this chamber but the commitment of the Government of Canada to get this done.

Senator Batters: Senator Harder, the Trudeau government has introduced this new Bill S-2 as an identical bill to Bill S-4. The government did have several months to re-evaluate its legislation and make any needed changes. I note that terms undefined in the Parliament of Canada Act and in 150 years of history, like “liaison” and “facilitator” — positions that will, under this very bill, receive taxpayer funded remuneration — are still undefined in this new Bill S-2. Why hasn’t the Trudeau government used some sober second thought and provided a definition for these still new terms in the Parliament of Canada amendment act?

Senator Harder: That was the same question you asked, as I recall, when I gave my speech on Bill S-4. The Government of Canada, in drafting the bill, made the decision, not the omission, to leave the definition of those officers to the Senate itself and its practices. Remember, it’s permissive. It doesn’t obviate the future possibility of a return to old nomenclature. It simply adds to the nomenclature available for this chamber.

Hon. Marilou McPhedran: Would Senator Harder take another question?

Senator Harder: Yes.

Senator McPhedran: Thank you. I was struck by your language when you talked about equal treatment, and I wonder — as someone who is inhabiting a new identity here in the Senate as an unaffiliated independent senator — if you could provide any assurance about the impact of this bill on unaffiliated independent senators.

Senator Harder: The Parliament of Canada Act provides no framework for the treatment of unaffiliated senators or, frankly, independent members of Parliament. That is done in the normal practices of each chamber as it deals with, for example, membership on committees. What the bill is intended to deal with is the framework of parties, groups, caucuses and organizational responsibilities that each chamber faces, and this is an opportunity for the Senate to be modernized with the experience of the last now almost six years.

Senator Dasko: This is a follow-up to Senator Batters’ question. Thank you for your presentation. I’m heartened to hear that the government has placed this high on its list. I want to press a little further on what is going on over in the other place. You suggested earlier that perhaps some of the other parties in the other place were not enthusiastic about this bill. I’m wondering, has that changed? Does the government have a dance partner, if I can put it that way? Can you further enlighten us as to what is actually happening over there and whether we can be optimistic that this is going to happen very soon? Thank you.

Senator Harder: Senator, the government would not be proceeding at the time and at the urgency that it is if it was not assured in its mind and discussions that there is a window of opportunity to get this legislation done. I think it would be foolish for me to pretend that there are — our commitments that I can reference, but let’s have Committee of the Whole, have the minister here, and hear how they expect to move forward. My hope is that we get it to the other chamber before Christmas, because that too adds more momentum of expectation on delivery and it’s early in the Parliament, so it’s not as though the government’s agenda on other legislation prevents the normal discussion in a minority Parliament as to how to advance and conclude legislation.

(On motion of Senator Martin, debate adjourned.)

Hon. Patricia Bovey moved second reading of Bill S-202, An Act to amend the Parliament of Canada Act (Parliamentary Visual Artist Laureate).

She said: Honourable senators, I speak from the unceded territory of the Algonquin and as a Manitoban, as from the territory for the as-yet-unfulfilled Treaty 1, the traditional lands of the Anishinaabe, Ojibway, Cree, Oji-Cree, Dene and Dakota and the homeland of the Métis.

Senators, I rise today to speak at second reading to Bill S-202, An Act to amend the Parliament of Canada Act (Parliamentary Visual Artist Laureate). This is the fourth iteration of this bill, first introduced in May 2016 by our former colleague Senator Wilfred Moore. Passed unanimously by this chamber twice, it unfortunately died on the Order Paper twice in the other place, despite having all-party support prior to the dissolution of Parliament last June 2021.

It would be wonderful to have it passed in both houses and become law before I retire from this chamber in 18 months. Bill S-202 would create the position of a visual artist laureate, a position which would be similar to that of the Parliamentary Poet Laureate; complementary yet working in different mediums. Like the poet laureate, the visual artist laureate would be an officer of the Library of Parliament, which provides for independence from Parliament like the Parliamentary Budget Officer.

If passed, this bill provides that the Speakers of the Senate and the House of Commons shall select the artist laureate from a list of three names that reflect Canada’s diversity, provided by a committee chaired by the Parliamentary Librarian. The committee would include the Librarian and Archivist of Canada, Canada’s Commissioner of Official Languages, the CEO of the Canada Council for the Arts, the director of the National Gallery of Canada and the chair of the Royal Canadian Academy of Arts or their designates.

[Translation]

The visual artist laureate would serve the Speakers of both chambers for a term not exceeding two years. As I have already mentioned, their mandate would be to promote the arts in Canada by producing or causing to be produced artistic creations. At the request of either Speaker, he or she could produce artistic creations for use in Parliament or on occasions of state. The visual artist laureate could also sponsor artistic events and give advice to the Parliamentary Librarian regarding the Library’s collection and acquisitions to enrich the Library’s cultural holdings. Either the Speaker or the Parliamentary Librarian could ask the visual artist laureate to perform other related duties.

As I have already mentioned in this chamber, the visual artist laureate would definitely portray Canada’s diversity, no matter the medium used — painting, print-making, sculpture, design, video, film, art installation, photography or other. Any artist appointed to the position of visual artist laureate would consider it an honour to serve as an ambassador for the arts and creative works in the Parliamentary precinct. Indeed, the term “laureate” denotes the honour for distinction in a particular field.

[English]

This portrayal of our diversity and our need to understand each other — whether on a federal, provincial, territorial or cultural level — is paramount, especially now as we move forward as a country. Artists have always depicted or discussed contemporary issues in their work and drawn attention to critical concerns. It is clear, for instance, that understanding each other will play a key role in reconciliation, for which cultural understanding is essential.

For instance, Alberta artist Joane Cardinal-Schubert’s 1990s installation The Lesson provided a clairvoyant and clarion call to understanding the redress which predated the establishment of the Truth and Reconciliation Commission. Faye Heavyshield’s 1985 work Sisters — long before the national inquiry was established — drew attention to the need for sisters to support each other, a truly poignant universal statement with the tragedy of murdered and missing Indigenous women and girls. For years, Jane Ash Poitras’s paintings have presented her poignant insights into the unmarked graves at residential schools, while Robert Houle has documented many issues around colonization in our collective treaties. Isn’t it time that the work of our two houses become part of these visual conversations? I feel the same regarding environmental and climate change concerns, which artists like Don Proch have been highlighting in their work for decades.

We all heard Senator Ataullahjan’s poignant statement last week depicting the situation in Afghanistan. The ustad burying his rabab, the symbolic burying of the cultural expression of the Afghan people. She said:

For me, the burying of the rabab is a significant act. The strings of the rabab pull at the heartstrings of everyone for that region. For me, it signifies the burying of the heart and the soul of Afghanistan.

I repeat that here because culture is a cornerstone of who we are, and without the arts our unique voices go unheard, and I believe those visual voices should carry our parliamentary messages and work.

Colleagues, I could go on with examples to prove that Canada does indeed have many excellent artists who give voice to the various perspectives regarding societal issues, but I won’t. We have seen — even in the small installations in this chamber of Indigenous work, the new presentation of Inuit art and our two iterations of honouring Canada’s Black artists — that visual expression does make a difference and creates new understandings. I think our work and theirs would indeed be strengthened by the work and the presence of a parliamentary visual artist laureate as it has with our Parliamentary Poets Laureate.

In previous speeches I have highlighted the value of our artistic sector to the Canadian economy and there are compelling economic statistics from Canada’s cultural industries. Statistics Canada publishes the Canadian Culture Satellite Account, which for instance, found that the GDP of cultural industries in 2017 was $58.9 billion or $1,611 per capita, equalling 2.8% of national GDP.

According to the most recent Statistics Canada and Hill Strategies report, between 2010 and 2017, the GDP of culture products increased by 16%. The number of jobs in that period related to culture products increased by 7%. In 2017, there were indeed 715,400 jobs directly related to cultural industries, or 3.8% of all jobs in the country.

[Translation]

Of course, the pandemic has dealt a serious blow to our economy and the arts and culture sector. The federal government has recognized this. The most recent budget provides funding for this sector, as it will be one of the last to recover from the pandemic.

[English]

According to Hill Strategies’ research, the total value of goods and services in the culture sector decreased by 10% between 2019 and 2020. Between 2019 and 2020, 55% of organizations and businesses in the arts, entertainment and recreation experienced a revenue drop of at least 30%. Organizations have outright closed to the tune of 8% since 2019. The 594,000 employment and self-employed positions in the culture sector in 2020 represented the lowest job total since 2010. The performing arts and festivals have been hardest hit, losing 52% of sales and 36% of jobs between 2019 and 2020.

As I mentioned in debate in the last Parliament, through the pandemic, I’ve spoken to over 600 artists and they have been telling me that passing this bill, even though there will only be one visual artist laureate every two years, would be an important welcome vote of moral support for our artists in these dark times. Artists working in other disciplines — musicians, writers and actors — have also echoed those sentiments in my meetings and conversations with them. I can assure you that parliamentary support for this will be extremely well received.

[Translation]

Honourable colleagues, the arts are a universal language that we all speak. The arts break down barriers and help us understand one another. I like to think that as we look back on our nation’s history, we are reminded of the many great artists who have represented Canada through multiple visual media and the rich tapestry of the many peoples and cultures that inhabit this place.

Our story is and has been told by many visual artists who see this land through a myriad of viewpoints and lenses. Each contributes to the vision of Canada. The same is true of the visual artist laureate.

[English]

So it is with these thoughts in mind that I thank you all for your support for the arts and culture sector in Canada and ask once again for that same support in making this legislation a reality, hopefully within my remaining time in this chamber. I hope we can help the restart of the arts in this country by moving this bill forward quickly to the other place, recognizing that twice already we have passed it unanimously, and it was so close to being voted on in the other place before the election call. Thank you.

Hon. René Cormier: Honourable senators, I want to thank the honourable senator for her determination, her patience and her engagement toward this very important bill for artists in Canada.

Thank you for all the work you’re doing for arts and culture for Canada. Your dedication is an inspiration for all of us. Just for more certainty, I want to ask about the definition of videography. Does it include all digital technologies? You know how young creators today use digital technologies in different ways. I want to make sure, when you talk about that, that it’s included. Thank you.

Senator Bovey: Thank you for your question, Senator Cormier. Absolutely. We don’t know what media artists will be using in the coming years, and that’s why I said, “and others.” But this is looking at the creative visual expressions of what we on Parliament Hill, in this chamber or in the House of Commons, undertake. As you say, I think it’s really important. This is one of the fields of creators among us that really do speak an international language. I think it would heighten the work that our parliamentarians are doing. That’s what I’m hearing from members of Parliament, from colleagues in this chamber and from artists, and that’s why I was so excited to hear from so many artists that even this one small gesture will be heartfelt and positively taken by all.

(On motion of Senator Ataullahjan, debate adjourned.)

Hon. Pat Duncan: Your Honour, may I respectfully request that senators present be advised? It’s my understanding that there was a gentleperson’s agreement and that the Speaker advised we were to wear masks at all times unless a medical exemption was granted, even when we are speaking and addressing our colleagues in the chamber. Would you clarify that point for us, please?

Hon. Pierrette Ringuette (The Hon. the Acting Speaker): The Speaker sent a memorandum on Saturday, November 20. With your permission, honourable senators, I will remind you of the contents of this memo:

Please be advised that commencing on Monday, November 22, 2021, the Senate Chamber will return to full capacity. Senators will be required to wear a mask at all times while in the Senate Chamber, common areas, and in any situation where the 2 metres distance cannot be maintained. This means senators are required to wear their masks when speaking in the Chamber.

[Translation]

Any senator who is unable to remain masked due to a medical condition will be accommodated. In this scenario, should an unmasked senator take the floor, colleagues nearby will have the option to move to a free seat that is properly distanced prior to the beginning of the senator’s speech. Furthermore, senators who desire social distancing can be seated in the galleries, which is fully operational for Senate sittings.

[English]

That said, on November 22, 2021, and November 23, 2021, there will be limited attendance and 2 meters distancing maintained during the ceremonial components of the Opening of Parliament and Speech from the Throne. The portions of the sittings prior to and following these events are not subject to this exception.

[Translation]

This solution is made possible by the combined layers of protection that are provided by full vaccination, masks and optimal ventilation.

The contribution of all honourable senators is critical to ensure the safe return of the Senate.

It is signed by our Speaker, the Honourable George Furey.

I hope that answers your question, Senator Duncan.

On the Order:

Resuming debate on the motion of the Honourable Senator Housakos, seconded by the Honourable Senator Smith, for the second reading of Bill S-203, An Act respecting a federal framework on autism spectrum disorder.

Hon. Peter M. Boehm: Honourable senators, I rise to provide my support for this bill. I commend Senator Housakos for introducing it and for his work in the autism community, particularly in Montreal.

Colleagues, this is not a partisan issue. Autism spectrum disorder, or ASD, impacts families all across our country regardless of their location, ethnic background and how they may vote in elections.

For me, the appeal of the bill is that it is general, recognizing that there are jurisdictional issues and varying approaches in dealing with ASD across the country. Hence it is a framework within which a national autism strategy could be created.

It suggests general measures encompassing financial support for autistic persons, their families, appropriate tax benefits, a research network, a public awareness campaign, using online resources to highlight best practices and measures to ensure accountability.

It recommends consultations across the breadth of the federal government, but also with provincial jurisdictions; relevant stakeholders; experts; advocacy organizations, to which I would also add self-advocates, many of whom have been in touch with me; and, of course, important for us here and in the other place, a mechanism to report back to parliament.

As Senator Housakos has said, the idea for a national autism strategy is not new. However, while much has been talked about, very little has actually been done since the release of the 2007 report by the Senate’s Standing Committee on Social Affairs, Science and Technology entitled, Pay Now or Pay Later: Autism Families in Crisis. This is a well known and oft-cited report which our current colleague Senator Cordy had a hand in as a member of the committee at the time.

We need to recognize that the government has been preoccupied in the health sector for almost two years with a pandemic that is still not over as new COVID-19 variants emerge. This has engaged policy planners as well as federal and provincial government operational units full time, but, hopefully, this pandemic will soon become endemic. Work that may or may not have begun towards a national autism strategy could be encouraged by this bill. In fact, former Senator Munson and I had plans to meet with the previous Minister of Health to talk about a national autism strategy, and it was just at that point when the pandemic hit us with full force.

The intention is not to supplant any activity that may or may not be going on but to give it structure and, through the publicity for this bill, purpose.

A number of senators in this chamber have taken a great interest in ASD. Senator Housakos has mentioned a few, but I want to mention Senator Bernard, Senator Loffreda, Senator Harder, Senator Hartling, and my colleague and seatmate Senator Kutcher, who knows a lot about mental illness and mental health.

We cannot forget the great contributions made by our former colleague Senator Munson who championed the need for a national strategy, ensured the creation of an Autism on the Hill event and provided a voice for many advocacy organizations. In fact, Senator Munson was also a member of the committee in 2007 that produced the Pay Now or Pay Later report.

Work is not just happening here in the Senate. In the other place, Member of Parliament Mike Lake has been a tireless advocate in pushing the need for a strategy forward, not just in Canada, but also globally.

The Canadian Autism Spectrum Disorder Alliance has set out some clear precepts for a strategy. Senator Housakos has touched on them. I will add a little bit.

On research, we need to realize that there is only fragmented knowledge sharing across the country, without national standards on research. A national leadership framework and regular federal, provincial and territorial ministerial meetings could change that and create a national advisory group that could assess accessibility standards as well as intersectional elements to ensure racialized immigrants and newcomers, Indigenous peoples and those in remote and rural communities are not discriminated against.

Affordability and access to services are important elements to ensure autistic individuals can reach their full potential and live a fulfilling life. This aspect could also include review, renewal or improvement of federal tax measures, including reforming the Disability tax credit, comprehensive training programs to provide greater access to the job market and introducing a national autism waitlist reduction initiative. The waitlists for therapy, assessment, training and placement in special education or living in specialized group homes as adults are horrendous. In my own province of Ontario, the current and previous governments have failed to address this challenge head-on.

Active consideration of placing treatments for ASD under medicare is also a subject that has been discussed by numerous advocates and should be addressed.

It is important to make sure early development intervention services are available on the autism spectrum through what has been called an Enhanced 18-Month Well-Baby Visit so that children can get access to early developmental intervention services. There should be a universal, standardized approach across the country.

As Senator Housakos mentioned, nearly 80% of adult autistic Canadians are unemployed, and many of the remainder are underemployed. This is both a reflection of the breadth of the spectrum but also the lack of pre-employment training programs and funding. There is much to do here and a concerted effort could be made to attract the private sector, including with some federal sectoral incentives.

Regarding housing, there should be a disability supplement to the Canada Housing Benefit. Canada Mortgage and Housing could also be brought into the picture with respect to supply, and establishing contacts between housing developers and autism service agencies.

Finally, data. Data is being talked about in the context of the COVID pandemic. Data systems should be linked to ensure better information sharing. There should be a media campaign to improve the public perception of ASD, equity and inclusion, as in fact the bill before us suggests.

Colleagues, for me this is deeply personal. The third of our four children, Nikolas, is autistic. He was born on posting in San Jose, Costa Rica. We had to bring him back here to have him diagnosed. He was misdiagnosed here in Ottawa. We had to go through more diagnostic procedures. He is now 33 years old and remains non-verbal, but he understands three languages.

Dealing with diagnoses, treatments and navigating supports in a foreign service life that has taken my family from his birth in San Jose to Ottawa, to Washington, back to Ottawa, to Berlin and back to Ottawa during his lifetime has been arduous.

Dealing with his lifelong disability has, without a doubt, been the greatest of challenges, certainly for him, his siblings, my spouse and myself. We have and he has particularly scrambled and persevered. Others have not been as fortunate. Families and relationships have disintegrated. Services have not been offered, diagnoses missed, waitlists extended in perpetuity.

In our travels and in living in other countries, we have learned how other jurisdictions approach autism spectrum disorder. Much can be gleaned from practices abroad in other jurisdictions. Indeed, Nikolas lived in a group home for two years in the state of Brandenburg in Germany, about an hour-and-a-half from Berlin where we lived.

Ironically, Nikolas now lives about an hour and a half away from Ottawa in a small group home. He is doing well. He sometimes comes home. We also go to him, as was the case this past weekend. The pandemic has made meetings difficult, but we were able to go out with him to a restaurant last Saturday. Like many of us, he doesn’t like the mask thing. I think the Point of Order just touched on that. You don’t have to be verbal to indicate that.

Like other parents of autistic individuals, we worry about his future and who will advocate for him in that future. Colleagues, we have a long history in our great country of helping those who are disadvantaged. In fact, we have built ourselves on this. There are many with disabilities who require our support.

Autism needs to be addressed in a straightforward manner. In my opinion, a federal framework can set the parameters for what will surely be a very tough path that lies ahead. This bill will provide the impetus to do just that; I support it very strongly, and I thank Senator Housakos again for introducing it and recommend that we send it to the committee as soon as possible so it can be further enriched as required.

(On motion of Senator Loffreda, debate adjourned.)

[Translation]

Hon. Marie-Françoise Mégie moved second reading of Bill S-209, An Act respecting Pandemic Observance Day.

She said: Honourable senators, I rise today to begin second reading of Bill S-209, An Act respecting Pandemic Observance Day.

Philosopher George Santayana wrote that “those who cannot remember the past are condemned to repeat it.” He is essentially saying that if our world is to move forward, it must learn from and remember the past. We must learn from this pandemic to avoid repeating the same mistakes with another future pandemic or with any coronavirus variants that may yet emerge.

March 11 was chosen because March 11, 2020, was the date on which the World Health Organization officially declared COVID-19 a pandemic. As everyone knows, memories can fade, and establishing a pandemic day responds to the twenty-seventh recommendation of the Québec Ombudsman’s special report on COVID-19 in long-term care homes, which was released last week.

The recommendation states the following:

Propose that there be an annual day of commemoration for the COVID-19 victims and those who worked with them directly or indirectly, in order to remember what they went through during the first wave of the pandemic and the suffering and loss experienced by these sorely affected people.

It is normal for memories to fade over time, which is why Bill S-209 is necessary.

The Québec Ombudsperson entitled her report Identify the causes of the crisis, act, remember. Why commemorate the pandemic anyway?

I see three reasons: the duty to remember, the duty to get through it, and the duty to be prepared for a future pandemic. Our first duty is to remember. Many health care workers in Canada died because of COVID-19.

The Canadian Federation of Nurses Unions has recorded many cases, some of which remain anonymous.

I would like to talk about some of those cases. They are the people who stepped up to help during the pandemic and who did so at the cost of their lives.

Dr. Huy Hao Dao was the first health care worker to die of COVID-19 in Quebec. Dr. Dao was a professor and researcher in the department of community health sciences at the Université de Sherbrooke. One of his achievements was obtaining a grant from the Canadian Institutes of Health Research for a project to detect opioids in order to “prevent overdoses in people who consume drugs alone at home.” He also supported colleagues working on epidemiological studies to track where people who tested positive for coronavirus contracted it. That’s when the disease took his life. He was 44 years old.

Marcelin François was a father who had recently arrived in Canada with his wife and children via Roxham Road. He was a machine operator in the textile industry through the week and a personal support worker on Saturday and Sunday. He was “dragged” to various seniors’ residences by his “agency.” He died from COVID-19 in April 2020 at the age of 40. La Presse columnist Yves Boisvert wrote the following about Mr. François:

He does not appear on any official lists, since he was neither a government employee nor a union worker. Nor anything else. Although I should say, “pending status”. . . .

In the meantime, they were denied refugee status. When you only seek refuge from misery, you are not a refugee under the law.

Victoria Salvan, who immigrated from the Philippines in the 1980s, had two children and had been working as a personal support worker for over 25 years. She died of COVID-19. She was 64 years old.

Yassin Dabeh was a housekeeping attendant at a long-term care home in London, Ontario. A Syrian refugee who came to Canada in 2016 with his entire family, he died in January 2021 after testing positive for COVID-19. He was 19 years old.

Honourable senators, these individuals who died helping to care for or save the lives of others who were ill from COVID-19 were working on the front lines. They are called “essential workers” or “guardian angels,” an expression our politicians often use to refer to them.

In contrast, other workers, such as security guards, remain an anonymous group that are not really regarded as “guardian angels.” They have not received the same treatment in their immigration cases. It is important to note that people in those jobs are often racialized individuals. They can be found on the front lines, at the entrances to stores, hospitals, long-term care facilities, COVID-19 testing sites and so on. They are taking care to enforce health guidelines to protect the public and contain the virus. Some of these people are verbally and sometimes even physically abused as they work to keep us safe.

We are also thinking about the truck drivers and the delivery people, who work in a sector that has seen marked growth with the rise in home delivery. They are far too often underpaid and undervalued.

In addition to workers, our duty to remember also extends to seniors who were hard hit by the virus in private and public seniors residences, as well as in long-term care centres. These seniors often died far from their loved ones, who were unable to be by their side as they took their last breath.

Given the current COVID-19 numbers in Canada, we can assume that everyone knows someone who has died from the virus. Many people in my office have also recently lost loved ones, either a mother, a grandfather, a grandmother or an uncle from the ravages of this disease.

Closer to home, in this chamber, Senator Josée Forest-Niesing, our late colleague, fought COVID-19 before returning home. I want to express my condolences to her family and her staff.

This pandemic has prevented many from carrying out the rituals of grieving. Far too many people have not mourned their losses. The grieving process, set aside by many, will take time to heal.

Our second duty is to get through this pandemic. With the sudden arrival of the new Delta and Omicron variants, we can see just how much our daily life continues to be far from normal. Until we manage to immunize the vast majority of people on the planet, it will be difficult to overcome this pandemic.

Given the new concerns over variants, there is only one way to emerge from this pandemic, and that is by doing so together. We must ensure that vaccination is accessible in all countries. This will help us combat the variants, restrict their transmission and reduce the rates of hospitalization and death.

Finally, our third duty is to draw lessons from this experience in order to be better prepared for a possible future pandemic.

The pandemic of 1918, known as the Spanish flu, caused the death of 50 million people around the world. That pandemic led to the creation of Health Canada. It is one example of the measures that helped ensure better health for Canadians. We must learn from the COVID-19 pandemic to ensure that we put the right measures in place or change the current system to save more lives and keep people healthy.

Honourable senators, I opted for the legislative approach in introducing this bill. I wanted to ensure that the subject would move forward in both chambers and that we would be able to reach a consensus quickly in order to designate March 11 as pandemic observance day.

In closing, you are familiar with the motto of Quebec, which is attributed to the architect of the National Assembly, Eugène-Étienne Taché: “Je me souviens.” That motto is very relevant today. In the words of former Quebec minister Thomas Chapais:

This motto has only three words, Je me souviens, yet in their simple brevity, these three words rival the most eloquent of speeches. Yes, we remember. We remember the past and its lessons, the past and its misfortunes, the past and its glory.

It is my hope, for the generations of today and tomorrow, that March 11 becomes a time to reflect on the impacts of the pandemic, on how to manage and prevent pandemics, as well as to remember those who have cared for and protected us and all those who have died. Thank you.

(On motion of Senator Duncan, debate adjourned.)

Senator Simons: I’m very happy to see all the changes to the bill, because I think Bill S-210 addresses a lot of the concerns raised at committee around Bill S-203.

The preamble of the bill makes reference to online age-verification technology being extremely sophisticated and effective, but the bill itself doesn’t mandate that kind of technology. You will recall, because we had these debates together in the spring, that I’m very concerned about the implications of face-scanning technology that purports to guess someone’s age and what that means, not just for privacy but for the capacity of that kind of AI to guess how old one is. I’m wondering why you’ve returned to that model rather than having people simply provide photo ID. Is there something I’m not understanding about why having people upload a picture or photo ID would be a problem?

[Translation]

Senator Miville-Dechêne: Thank you for the question, Senator Simons. I will respond in French.

Just because the preamble states that the technology must be sophisticated doesn’t necessarily mean that it’s referring to using face-scanning technology to determine a person’s age.

All technologies are now possible, and a range of methods are generally included in the regulations. The use of digital identity technology is one possibility. There is a Canadian company called Bluink, whose technology allows users to input certain information on a cellphone, and these users only share the information when they want to, for example, when they must prove that they are over the age of 18. There are other methods, such as adding a token to a browser. It is obviously important for a third party to conduct the verification.

Nevertheless, we do not advocate for one specific method. The beauty of this bill is that, because verification technology is evolving so quickly, the regulations are the only way to make sure that the latest technologies and privacy protections are taken into account.

You’re right about that being an important element. I will say that the reason it now takes a second to erase or encrypt all the information collected is that a lot of progress has been made over the past few years.

Senator Simons: Thank you very much.

[English]

Hon. Colin Deacon: Senator Pate, would you take a question?

Senator Pate: Absolutely.

Senator C. Deacon: Senator Pate, I am looking at the Correctional Service Canada mission. It says they contribute to the protection of society by actively encouraging and assisting offenders to become law-abiding citizens.

Do you know what key performance indicators they are monitoring to ensure they are fulfilling that mandate? Have you thought about the sorts of key performance indicators you would like to see to ensure that mission is fulfilled?

Senator Pate: In fact, Senator C. Deacon, Senator Forest-Niesing and I were working on a bill that I will likely be introducing coming forward that will hopefully try to address some of those very issues. I look forward to introducing those next week.

As you rightly point out, there aren’t necessarily performance indicators, but there certainly are principles and values that are supposed to be upheld by Correctional Service Canada. First and foremost is least restrictive measures and community integration as well as, of course, public safety and doing all of that within that construct.

As we learned when we examined Bill C-83, there is much work to be done in terms of holding accountable Correctional Service Canada in not just the most punitive areas of their work or the areas that are most restrictive, but across the board in the areas they work. Thank you.

Senator C. Deacon: Thank you.

(On motion of Senator Bernard, debate adjourned.)

Hon. Julie Miville-Dechêne moved second reading of Bill S-210, An Act to restrict young persons’ online access to sexually explicit material.

She said: Honourable senators, I rise today at second reading stage of Bill S-210, An Act to restrict young persons’ online access to sexually explicit material.

I introduced the initial version of this bill more than a year ago. The now-defunct Bill S-203 was passed in the Senate, which was a huge step forward. However, that bill died on the Order Paper when the election was called.

We used this long break to conduct more consultations and present a new and improved version of the bill. This bill restricts the scope of the regime and further clarifies the intentions.

I want to briefly remind you why I wanted to take action to protect minors, children who are accessing porn sites that are increasingly hardcore and extreme without being asked for proof of age.

There are reportedly close to 4 and a half million porn sites around the world. The ecosystem changed around 10 years ago when the platforms chose to use content uploaded by users and made that content free. In turn, this removed any barriers to accessing these sites.

Kids are first exposed to pornography at age 11, on average.

These free sites derive their income from advertisements and video games of a sexual nature that target young people. In Canada, 40% of high school boys have seen pornography online, 28% search for it at least once a day or once a week, and 7% of girls say they have watched it. That was before the pandemic. It is worse now.

Renowned pediatrician Megan Harrison, from the Children’s Hospital of Eastern Ontario, provided compelling testimony before the Senate Legal Committee. She said the following:

The developing brain is absolutely affected by the images that it sees. As they grow and develop, their brain continues to change at an impressive speed. Neuroplasticity is a process by which our brains create new neural networks and pathways, which means it is constantly optimizing itself. . . .

Neuroplasticity is at its highest in children and even more so in adolescents. This means that repeated behaviours, repeated images, repeated ideas and values that a brain sees and internalizes during childhood and adolescence can have lasting impacts, as compared to adults, where the brain might be less affected.

The pediatrician went on to say:

The teens I see who have accessed these sites either accidentally or on purpose — and it’s very, very easy to do and the images are very disturbing — have so much confusion about their bodies and what is expected of them sexually, what is normal, all sorts of things.

Quebec sexologist Marie-Christine Pinel also made troubling observations about young people in her practice. She said:

I am facing emerging and disastrous phenomena: a resurgence of domination, performance anxiety that generates pain on penetration and erectile dysfunction, an explosion of requests for cosmetic genital surgery; all linked to the influence of pornography.

Scientific research is making more and more worrisome connections between the consumption of pornography and the health or behaviour of young people. When adolescents frequently view pornography, it can lead to compulsive consumption, create unrealistic expectations about expected activities, generate fear and anxiety, damage their self-esteem by distorting their perception of their own bodies, cause symptoms of depression and impair social functioning.

What do young people, boys in particular, absorb from what they see? Repeated consumption of pornography by adolescents reinforces gender stereotypes and perpetuates sexist beliefs and the objectification of women.

In total, 37% of online porn scenes depict violence against one or more women. This distorted view of sexuality can traumatize children and teens and damage their own self-image and their understanding of sexual relationships.

[English]

According to the Canadian Centre for Child Protection, and I quote:

Adult pornography is not only harmful to a child’s developing brain, it is also used to groom children for sexual abuse and to normalize sexual activity.

Just this week, in the U.K., the Children’s Commissioner was quoted saying that she had seen “the hugely damaging effects of porn on children, including a young girl who took her own life.” She added:

Kids are seeing things that warp what they think real sexual relationships are like. I’ve had girls say to me that during their first kiss with their boyfriend he’s tried to strangle her because he’s seen it on a porn video.

I have to say this disturbs me greatly. Despite the scandal uncovered a year ago, targeting MindGeek, a Montreal-based company, porn sites still do not verify the age of those who view their videos, even as sexual exploitation of children was uncovered on many platforms. For these platforms, it is a matter of competition, because losing customers, even minors, means fewer clicks and less revenue. This explains why porn platforms are apparently willing to implement age verification measures as long as they are imposed on the whole industry.

This is something government can do. Clearly, self-regulation has been a failure. Legal porn sites are supposed to be for adults only, but these platforms only ask users to check a box stating that they are 18. For all those reasons, we must resolve to control the access of minors to porn in the digital world as we do in the real world. Checking the age of users is a public health issue. Harm to children exposed to sexually explicit material is a real and urgent social concern.

Let’s talk about the bill before you. It is very focused. As stated in section 4, the objective is to protect the mental health of young people, and more broadly to protect Canadians, young people and women in particular, from the harmful repercussions of porn. It is a public safety issue. In section 5 the bill criminalized making sexually explicit material available to a minor for commercial purposes. The bill sets a maximum fine of $250,000 for a first offence. For those who might be concerned about the risk of censoring educational or artistic material, I want to be clear. It expressly states that sexually explicit material with a legitimate purpose related to science, medicine, education or the arts is not covered by this prohibition of the law. So there is no censorship or prudishness. I have always strongly defended the importance of comprehensive sex education in school.

In addition, case law shows that the term “sexually explicit material,” as used in the Criminal Code, cannot be applied to any nude scenes or tribal sexual contexts like has been mentioned in this house. In its Sharpe decision, the Supreme Court concluded explicit sexual activity refers to acts involving nudity or intimate sexual activity represented in a graphic and unambiguous fashion intended to cause sexual stimulation to some viewers.

The Superior Court of Ontario has also held that the proximity of the camera to the genital or anal region, the duration, the closeups and the importance of these images in a film are additional criteria that help define a porn video — that is one where the dominant feature is representation with a sexual purpose.

Who is targeted by this offence? In the prior wording of the bill, a company or an individual could be prosecuted for distributing porn material to minors without verifying age. However, this wording could have undesirable side effects, as was mentioned by some sex workers. In light of this, we have revised the scope of the offence to exclude individuals and only target organizations as defined in section 2 of the Criminal Code. The word “organization” includes corporate bodies, society companies, firms, partnerships or associations of persons created for a common purpose. They have an operational structure and hold themselves out to the public as such. This approach makes it possible to directly target commercial distributors of porn.

Another significant amendment will better protect the right of porn sites to a full defence. Under the revised bill, the power to send notices to offending sites is given to a designated authority and not to the minister. This should minimize the risk of political intervention.

If the platforms, whether Canadian or foreign, do not comply after a reasonable period of time, the designated authority can seek a court order to block the site in question. This is the most efficient enforcement mechanism against foreign websites. Blocking a site means ordering internet service providers, such as Bell or Vidéotron, to use any means at their disposal to prevent their customers from accessing the site. The result is a blocked URL address, domain name or IP address. Internet service providers have told us that this kind of blocking is perfectly feasible from a technical standpoint. They are already working with authorities to remove images of sexual exploitation of children that end up on their servers.

So the real question is how should websites check the age of their visitor before they access porn material. This is obviously the crux of the problem. The good news is that technological advances have now made it possible to securely verify the age of online customers. Because technology is constantly evolving, it seems wise to set out the parameters of age verification processes in regulations, so they are not included in my bill.

From the outset, experts agree that age checks should not be done by the porn sites themselves but by specialized third-party service providers. The precaution is essential to prevent porn sites from gaining access to their customers’ personal data. Here is how the Age Verification Providers Association describes the process:

. . . age verification is not identity verification. They’re very separate. What we try to do is have the minimum amount of data used in the first place and then retained going forward. For quite a lot of uses, you wouldn’t need to retain any personal data at all. All you need to know is that person X—and we only know them as ‘X’—has at some point proved, to a certain standard, that they are over a particular age or within a particular age range or they have a particular date of birth.

[Translation]

The simple and fundamental purpose of this bill is to restore some consistency to the actions we are taking as a country to protect our children.

In the real world, people under 18 cannot go to the casino or buy lottery tickets. In the online world, they cannot do that either. It only makes sense.

In the real world, young people cannot buy alcohol or cigarettes. We do not allow them to do that online either. It only makes sense.

Some people seem to believe that even though young people cannot rent a pornographic movie in the real world, they should be able to click on a button and instantly have access to explicit pornographic material in the virtual world. That makes absolutely no sense.

In the past, three objections have been raised against legislation on age verification. Today, I humbly submit that they do not pass scrutiny.

First, it was argued that pornography is protected by guarantees of freedom of expression. That is a fact that no one is disputing, but that does not solve the problem.

In the real world, we limit minors from accessing pornographic material in a perfectly legal and defensible way. Why would such limits be unacceptable when they are applied on the internet?

Courts in Canada and elsewhere had no difficulty accepting the idea that we must protect our children from pornographic content by imposing reasonable limits on its distribution. This reasoning is based in part on the fact that pornography does not deserve the same level of protection as political discourse, for example.

Consider this excerpt from an article by Professor Cass Sunstein, the most quoted legal expert in the United States — a country that certainly does not take freedom of expression lightly. I quote:

The Court has drawn a distinction between speech that may be banned only on the basis of an extremely powerful showing of government interest, and speech that may be regulated on the basis of a far less powerful demonstration of harm. Commercial speech, labor speech, and possibly group libel, for example, fall within the category of “low-value” speech. . . .

Under this approach, or any plausible variation, regulation of pornography need not be justified according to standards applicable to political speech. The effect and intent of pornography, as it is defined here, are to produce sexual arousal, not in any sense to affect the course of self-government. . . .

These considerations suggest a conventional, two-stage argument for the regulation of pornography. First, pornography is entitled to only a lower level of first amendment solicitude. Under any standard, pornography is far afield from the kind of speech conventionally protected by the first amendment. Second, the harms produced by pornographic materials are sufficient to justify regulation.

The U.S. Supreme Court recognized that the state has an interest in safeguarding the physical and psychological well-being of minors and that that interest extends to protecting minors from the influence of pornography. The government can therefore regulate its distribution, provided that it does so narrowly without unnecessarily interfering with the right to freedom of speech.

Our own Supreme Court expressed support for this idea in its policy decision on this issue, as follows:

 . . . the kind of expression which is sought to be advanced does not stand on an equal footing with other kinds of expression which directly engage the “core” of the freedom of expression values. . . .

The infringement on freedom of expression is confined to a measure designed to prohibit the distribution of sexually explicit materials accompanied by violence, and those without violence that are degrading or dehumanizing.

As I have already concluded, this kind of expression lies far from the core of the guarantee of freedom of expression. It appeals only to the most base aspect of individual fulfilment, and it is primarily economically motivated.

In conclusion, although pornography is protected by freedom of expression guarantees, it should be relatively simple to justify reasonable regulations for very good reasons.

Under the bill before us, online pornography would remain accessible to all adult Canadians, subject to an automated three- to five-minute age verification process.

I’m not aware of any inalienable right to instant access to pornography anywhere, at any time, by anyone, that would be violated by this modest proposal.

Let’s keep in mind that freedom of expression is not an absolute right, but a right that, according to the Charter, is subject to such reasonable limits as can be justified in a free and democratic society. When we are called upon to balance the rights at stake, protecting the most vulnerable members of our society is crucial and should take precedence over causing a minor inconvenience.

With respect to privacy, the second objection we sometimes hear is that, while it is desirable in theory to regulate minors’ access to online pornography, the means proposed in practice are too broad and infringe on privacy rights. Once again, I humbly submit that this argument does not stand up to scrutiny.

First of all, consider how age verification works in the real world. Today, individuals suspected of being under 18 who want to buy cigarettes, alcohol, lottery tickets or pornographic magazines must show their face and ID to the store cashier. As far as I know, no one is seriously challenging that approach.

In the past, there have been legitimate concerns that providing personal information over the internet could expose people to identity theft or other forms of data exploitation. These are certainly valid concerns.

The good news is that technological advances have resulted in age verification processes that do not involve personal identification. In recent years, we have seen the development of effective, relatively unintrusive technology that provides the least restrictive means possible of protecting young people from the harms of online pornography. Nothing is ever perfect, of course, but privacy can be increasingly assured by data systems that are encrypted or destroyed by the age-verification providers.

As Privacy Commissioner Daniel Therrien said in committee, and I quote:

When it comes to privacy, the risk is generally not eliminated. You try to reduce it as much as possible. I think the structure of the bill is such that you can reduce the risk of privacy breaches without completely eliminating them.

As I mentioned earlier, the bill does not set out the acceptable forms of identification, leaving that to regulations. It is the only way to guarantee that our protections are consistent with best practices and emerging standards.

Then there is the famous parental responsibility. That is a topic I heard a lot about in presenting this bill. It may be the most important aspect. We were told that the responsibility for protecting minors from online pornography should fall to their parents. Again, that argument does not hold water.

Would Canadians like the sale of alcohol, cigarettes and gambling activities to be left to parental supervision only? Would Canadian parents like it if bars, casinos, and strip clubs simply required clients to click a button to enter? Of course not.

For years, we have left it up to parents to control minors’ access to online pornography. We know that this does not work. Many of us have experienced this with our own children. We should keep in mind that not every parent has the same level of digital literacy. If parental controls were working, we would know it, and I can assure you that we would not be here today to speak to this bill.

However, the evidence that the current approach is a failure is not just anecdotal.

A 2018 University of Oxford study suggests that internet filtering tools have practically no impact on the exposure of youth to online pornography, and it went so far as to question whether their limited usefulness justifies their cost.

The truth is that most parents have no idea what their children view on the internet, and they need our help.

A survey conducted by the Canadian Centre for Child Protection indicates that 60% of respondents are very worried about their children being exposed to pornographic or violent images. It is not just parents; pediatricians and specialists are concerned as well. Our many supporters include the Paediatric Society, the Canadian Academy of Child and Adolescent Psychiatry, the Association des pédiatres du Québec and several Canadian and international experts. They are all demanding that the government play its part.

[English]

In fact, other countries have already acted or are in the process of doing so to protect minors from this bombardment of pornographic images online.

France adopted legislation a year ago that allows the blocking of porn sites wherever they are in the world if they do not verify the age of their customers. The implementing decree is now in force and the Conseil supérieur de l’audiovisuel has the authority to request a blocking order from the court.

Germany is even further ahead and has begun the process of blocking access to the four biggest porn sites that have refused to ensure their customers are adults. We’re talking here about xHamster, YouPorn, Pornhub and MyDirtyHobby.

After a first failed attempt in the U.K., a joint parliamentary committee has just completed a pre-study of a draft bill called the Online Safety Bill, which should be tabled shortly. The new bill will impose a duty of care on porn platforms, requiring them to implement robust mechanisms such as age verification to ensure that children do not have access to harmful content.

Australia has adopted the most rigorous and ambitious approach to consultation and action. Last June, the Australian Parliament passed the Online Safety Act 2021. At the same time, age verification guidelines have been developed by the eSafety Commissioner, and an action plan for porn sites and social media is expected within the year.

Moreover, for those who might worry about setting a dangerous precedent, know that age checks are increasingly adopted around the world. In Japan, those who want to use the Tinder app must prove that they are of legal age. Fans of the popular Roblox game must do so as well. Facebook is exploring age-verification options for adult-only videos.

Another reason to act: Canada has ratified the Convention on the Rights of the Child and, as such, we must consider the United Nations alert regarding threats in the digital environment. As stated in a recent general comment, state parties should ensure that appropriate protections are in place to prevent children from accessing products that are harmful to them such as strong verification systems.

In closing, I want to express my gratitude for the strong support I have had over the past year for the principles underlying this bill. Despite the constraints related to COVID, we had real debate in the Senate. The predecessor Bill S-203 was praised, criticized in some respects and ultimately improved. The bill succeeded in passing the demanding test of committee study, where we heard from a dozen witnesses over about eight hours. I want to thank Senators Carignan, Cotter, Batters, Jaffer and Dalphond for their suggestions.

Outside the Senate, the initiative generated significant interest and we succeeded in bringing public attention to this threat to public health. Until we took action, the issue worried many parents but was not often discussed in Parliament. But that is the past; let’s look to the future.

Dear colleagues, I respectfully invite you to participate in the debate on the strengths and weaknesses of this new bill intended to protect children and young persons from the harms of pornography. We can discuss the modalities, but it is high time to act.

[Translation]

Hon. Colin Deacon: Would the senator accept another question?

Senator Miville-Dechêne: Certainly.

Senator C. Deacon: You just focused on an important point: that the efforts be technology agnostic so that we leave the door open for many different approaches. Specifically, would it be helpful if we started to see greater leadership in the federal government around the implementation of digital identity so that this could be done more swiftly and seamlessly across jurisdictions in the country and, seeing the ability to verify and limit the information you’re sharing, verify your age online?

[Translation]

Senator Miville-Dechêne: Thank you for the question. I know that’s one of your major concerns. Digital identity is still in its infancy. Some companies offer the technology, but it isn’t very common.

However, it’s true that if it were to become a more widespread technology, there would most likely be less concern about what it enables us to do, which is control information shared with this or that company ourselves.

You and I both know that we share a lot of information every day. Why, then, if it takes just a few extra minutes to access a pornography site, would identity verification methods suddenly be seen as too great an imposition?

I believe that, at this point, technology enables us to be relatively secure in that regard. As you said, Senator Deacon, all these measures and all the protection they offer are set out in a bill that would regulate what’s required of companies with respect to erasing or encrypting data. All this could be covered by regulations, which do exist. However, we clearly need to enhance them and ensure that the system is appropriate for the 21st century.

[English]

Senator C. Deacon: Just to be clear, if the federal government started to show some leadership on the implementation of digital identity, it would be assisting the implementation of this work, correct? Thank you.

[Translation]

Senator Miville-Dechêne: Senator Deacon, you are putting words in my mouth.

It is clear that the government should indeed show leadership. You know, as I do, that a bill on this issue died on the Order Paper. It is time to resume these efforts because we are lagging behind.

We are lagging behind on the issue of age verification because it is difficult for people to understand that these verifications can be done while minimizing the infringement of privacy.

[English]

Hon. Ratna Omidvar: Senator Miville-Dechêne, my question is more of a political nature. I must congratulate you on the work you have done over the last year, and the searchlight that has been shone on this issue, particularly on MindGeek and other pornography sites. I don’t know the answer to this question, but you may: Do you know if any political party included this particular issue in their policy platform during the last election?

Senator Miville-Dechêne: That’s a good question, Senator Omidvar. I have to say that Steven Guilbeault, when he served as Minister of Canadian Heritage, publicly said that this was an interesting bill, but he didn’t go any further. As you know, he was very involved and busy with Bill C-10, so I didn’t have an opportunity to discuss it with him any more than that.

I think one of his concerns was that we shouldn’t focus only on porn sites, but that all social media and the internet had harmful material and that our view should be broader. Obviously, it makes sense, but from my point of view, with a private bill, I couldn’t just go straight to the internet as a whole. It was too complicated, so I focused on porn sites. To be frank, half of teenagers go on porn sites when they want to watch porn. It’s not something that’s not used.

I have support among MPs from different parties. What I find incredibly interesting with this particular bill is that it’s non-partisan. I have support among people with different ideologies and who are in different parties, because obviously you could be a feminist, or you could be a more conservative person and still want to protect children. The way we do that can be the same. I really think this support is important. But no, there was nothing in the political platforms on that. I’m very sorry about that.

Hon. David M. Wells: Just to make a point on your last comment, you can be both a feminist and a more conservative person.

I understand the intent of the bill, and I agree with it. This would be a law that is obviously within the jurisdiction of Canada. With the prevalence and ease of use of virtual privacy networks, or VPNs, which can mask your IP address, how would you address that with respect to visiting any sites on the internet?

Senator Miville-Dechêne: First, let me say that obviously you can be a feminist, progressive or conservative. Anybody can be a feminist. I’m sorry if I was not very clear in the way I articulated that. I just wanted to say how non-partisan this bill was and that people came from different places. There are quite a few Christians, for example, who support this bill.

Your question about the VPN is an excellent one. The studies show that among younger children — less than about 15% — 13‑year-olds have access to a VPN or know how one works. For younger children, this would not be a big problem because most of them often stumble upon porn or just don’t know how to use a VPN. It’s obviously an issue for older teenagers, but this bill doesn’t pretend to stop everybody everywhere from watching porn. It’s like when one buys cigarettes. We know a child can buy them themselves, or they can ask an older boy to go and buy cigarettes for them. It’s the same thing for alcohol. The idea is to try to restrict access to porn as much as we can.

(On motion of Senator Martin, debate adjourned.)

Hon. Kim Pate moved second reading of Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.

She said: Honourable senators, I rise to speak to Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation. This bill will remove unnecessary obstacles to community integration for those with criminal records who have been held accountable for their actions, have fulfilled all aspects of their sentences and are trying to move on with their lives.

Bill S-212 proposes three key measures: one, the expiry of records rather than mere suspension, with some limited exceptions for records related to sexual assault; two, a return to the original wait periods for the Criminal Records Act, namely, two years for summary convictions and five years for indictable offences; and three, the shifting of responsibility to government actors to ensure expiry of records once these wait periods elapse without subsequent convictions or charges, rather than putting the onus on individuals to shoulder the current costly and onerous application process.

Bill S-212 underscores that record relief is a matter of justice and fairness, and should not be a matter of privilege accessible only to the most well-resourced. It acknowledges and seeks to redress the role of the current records system in entrenching systemic racism. It rejects knee-jerk reactions and assumptions about what it means to be tough on crime and insists on following the facts and adopting policies that will actually make communities safer and more just for all of us. It also saves money and resources, both for the people in need of record relief and for the government.

During the last Parliament, we referred a previous version of this bill to the Standing Senate Committee on Legal and Constitutional Affairs. I look forward to working with all of you to ensure the timely study of this bill this session.

For today, I will recap frequently asked questions and corresponding reasons why Bill S-212 deserves this chamber’s timely attention and support.

One, what will record expiry achieve that the current record-suspension system does not? Two, does record expiry make sentences lenient? Three, will removing stringent application requirements put community safety at risk? Four, does deleting records mean that they will lose important data? Five, can the government afford a record-expiry system? Six, does Canada have the necessary record-keeping technology in place for record expiry? And seven, isn’t the government already working on criminal records legislation?

The first question is: What will record expiry achieve that the current system does not?

An expiry system would remove barriers to moving on from a criminal conviction that arise because record suspensions are inaccessible. People who have served their time and been held accountable for their actions need employment, housing, educational and volunteer opportunities. Their ability to integrate and contribute positively is vital for the safety, health and well-being of these individuals and their communities.

Despite this reality, more punitive and restrictive rules have increased barriers to record suspensions and, as we will discuss later, they have done so despite research indicating that past criminal convictions are not correlated with recidivism, the commission of additional offences in the future.

When pardons were introduced in 1970, Conservative Solicitor General Critic Robert McCleave insisted staunchly that the only cost, other than time, should be the price of a stamp. That was 6 cents then.

In 1995, the cost of applying for record relief was $50. This rose to $150 in 2010, to $631 in 2012 and today is $657.77, increasing each year through automatic cost-of-living adjustments. In addition to fees, individuals pay hundreds of dollars in associated costs such as fingerprinting, record search fees and legal supports, not to mention the thousands of dollars paid to companies that claim to have expertise in record suspension.

In addition to fee increases, wait times for applying have doubled and processing times have exponentially increased. Also, certain types of convictions became completely ineligible for record relief.

At the same time, use of criminal record checks is proliferating, increasing by 7% per year, further magnifying the effects of these restrictions. Three in five Toronto employers now require police background checks for all new employees. Individuals face record checks in every aspect of their lives, from parenting to applications for housing, school, volunteer work and even admission to nursing homes.

Of the 3.8 million Canadians with a criminal record, about 9 in 10 do not have a pardon or record suspension.

All of us, at some point, have done something that we know was wrong, that we regret. But most of us are fortunate not to be forever defined by the negative things we have done. Nor are these how we are introduced to would-be employers, friends or neighbours. A criminal record is not a comprehensive portrait of a person; it is a snapshot of a moment — usually the worst — of their lives.

Currently, only five jurisdictions in Canada — Yukon, British Columbia, Quebec, Prince Edward Island and Newfoundland and Labrador — offer minimal protection against discrimination based on a record that has not been pardoned or suspended. In all other provinces and territories, and under the Canadian Human Rights Act, people from landlords to employers can discriminate against those who have not been able to access a record suspension, even if there is no public safety justification for doing so.

This discrimination intersects with other systemic inequalities. For reasons that have nothing to do with public safety, those who are poorest are least likely to be able to afford the costs of a record suspension. Systemic racism in the criminal legal system means that racialized people disproportionately bear the consequences of inaccessible record suspensions. Recall that African-Canadians represent 3% of Canada’s population, but about 7 to 8% of federal prisoners. Indigenous Peoples represent 32% of federal prisoners. This number climbs to 44% for Indigenous women.

Furthermore, when employers and others make discretionary decisions to give individuals with a criminal record a chance, these decisions too often operate in ways that reinforce systemic racism and other forms of inequality. One study from the United States found that the likelihood of a callback for a job interview drops by 50% for White applicants who have had to reveal a criminal record to a prospective employer. For Black applicants, it drops by 65%.

Where record relief is not accessible, marginalization as a result of criminal records becomes intergenerational. Parents struggle to provide economic and other supports for their children and children bear the consequences of their parents’ criminal records.

The record expiry proposed in Bill S-212 aims to ensure that timely record relief is available to all, including those most marginalized, by removing fees and the requirement to make an application. It aims to prevent a criminal record from becoming a lifelong sentence for those who have long since served their time.

This brings us to our second question: Does record expiry make sentences more lenient?

The short answer is no. First, the goal of sentencing is not to deliver the harshest or most punitive sentences, but rather sentences that are proportionate, fair and just. One of the key objectives of sentencing is rehabilitation, and overly punitive approaches interfere with this in ways that disadvantage all of us.

We also need to distinguish between sentences and the effects of criminal records, which linger beyond the end of sentences. Judges impose sentences based on what they determine is necessary and appropriate to hold a specific person accountable, knowing in theory — but not necessarily in practice — how sentences interact with other parts of the criminal legal system.

[Translation]

For example, judges may presume that people will assert their right to request parole and will have access to a suspension of their criminal record once they have served their sentence.

[English]

The reality stands in stark contrast. As a result of conditions of confinement and limited access to programs and services, sentences often end up being far harsher than what a judge anticipated and determined was fair and just.

Further, mandatory minimum penalties prevent judges from imposing a fit sentence. Overall, prisoners currently spend more time in harsh conditions of isolation and spend more time in prison, often waiting until well past parole eligibility dates before they are released.

Most relevant to our discussion today, the lack of accessible and timely relief from a criminal record extends the stigma and marginalization well beyond the end of a sentence.

Record expiry reflects the principle that when we, as a society, decide to hold someone criminally responsible and accountable for their wrongdoing, inflicting additional hardship perpetuates and perpetrates injustice. This is why section 11(h) of the Canadian Charter of Rights and Freedoms prevents punishment for a conviction from extending beyond the end of a sentence ordered by a judge. The current record system violates this principle.

Our third question is: Will removing complex record suspension application requirements increase risk to community safety?

Current punitive record suspension rules are apparently motivated often by political desire to be seen as “tough on crime.”

Despite the rhetoric, however, it is important to underscore that these changes have not improved public safety. Before the 2010 and 2012 amendments to the Criminal Records Act, a very high proportion — more than 95% — of people who received pardons were never in trouble or criminalized again and continued to meet stringent good conduct requirements. Punitive legislative changes do increase punishment, but do nothing to improve community safety.

What did change was that the number of people applying for record relief fell by 40% after the cost increased and more onerous application procedures were introduced.

The more punitive rules effectively barred access for many who would otherwise have qualified for criminal record relief and who present no threat to public safety.

Research demonstrates that one of the best indicators that a person will not be criminalized again is simply having lived a few crime-free years since the completion of their sentence. People with historical convictions are no more likely to be convicted of a crime than anyone else.

Furthermore, timely relief from criminal records can help people find housing and ways of supporting themselves, which contribute to successful integration. Indeed, as the income of a person with a record increases, their likelihood of being criminalized again decreases significantly.

The negative consequences in terms of public safety of restricting access to record relief is precisely why a former Federal Ombudsman for Victims of Crime described the 2010 and 2012 record suspension amendments as “a stupid thing to do.”

It also is for this reason that more than 60 community groups formed the Fresh Start Coalition to call for the type of measures proposed in Bill S-212. The coalition includes those working with and on behalf of those who have been criminalized, but also those who have been victimized, including the Barbra Schlifer Commemorative Clinic, Huron Women’s Shelter, Luke’s Place, the Ontario Coalition of Rape Crisis Centres, the Ottawa Coalition to End Violence Against Women, The Women and Children’s Shelter in Barrie, Timmins and Area Women in Crisis, Victim Services of Durham Region and Women’s Shelters Canada.

This brings us to question four: Does deleting records mean that we will lose important data?

Bill S-212 would apply to most types of records in the RCMP’s Canadian Police Information Centre, or CPIC, system. It would also prohibit other agencies with copies of records, like police stations, from disclosing expired records. The Criminal Records Act currently provides for two key uses of pardoned or suspended records. Bill S-212 would continue to permit both.

First, where police find fingerprints while investigating a crime or seek to identify someone deceased or incapacitated, information about that person can continue to be disclosed to police even if their record has expired.

The bill also preserves the Criminal Records Act regime for vulnerable sector checks. When someone applies to work or volunteer with children or other vulnerable people, these checks detect and flag records relating to sexual assault convictions. We must recognize that, given the realities faced by women and children who are violently victimized from lack of protection and accountability of perpetrators, record checks alone, though, will never be an effective means of protecting people from harm.

Because of barriers to reporting sexual assault, Bill S-212 also provides one exception to permanent and definitive expiry of records. Records of sexual assault listed in Schedule 1 and Schedule 2 can be retrieved based on subsequent information that a person’s behaviour should render them ineligible for record expiry.

The fifth question relates to cost: Can the government afford a record expiry system? Record relief is currently the only program within Public Safety Canada that is held to a full cost-recovery standard. The idea was introduced only a decade ago, among a host of other so-called “tough on crime” measures. This approach ignores both the public good of individuals integrating successfully into the community and the legal principle that punishment must not extend beyond the end of a sentence.

For many of us with the privilege of sitting in this chamber, an application fee of $657.77, plus hundreds of dollars in extra costs, may not seem prohibitive. Remember, however, that most people seeking record relief are doing so to try and help lift themselves out of poverty — to obtain training or employment.

Public Safety Canada data demonstrates that of the 11,158 people who had not obtained a pardon or record suspension 14 years after being released from federal prison, only 51% had been able to find jobs, compared to 69% for the general population. Their median income was zero dollars.

For those with paid work, the average income was $14,000 per year or $1,167 per month, well below the poverty line and less than half of the median income for Canadians who are not economically marginalized. Assuming monthly rent for a one-bedroom apartment across Canada ranges from about $753 to $2,216, most people would be without housing, in inadequate housing, in debt or without food, clothing, transportation or other support for themselves or their children.

Could a friend or family member help with the cost? Even if this is an option for some, those on social assistance would be liable to having their already criminally low income supports clawed back if they receive this type of gift from friends or family. Too many are also at risk of being preyed upon by companies that present as supportive yet charge exorbitant fees for negligible assistance with the record expiry process.

Imagine how many months and years it might take to save up $657.77 if paying for basic necessities would put you into debt month after month. In a country as wealthy as Canada — a country that says it values justice — people who have served their time and who have been held accountable should not have to go hungry or end up homeless in order to get relief from a criminal record that continues to trap them in poverty and contain them in the margins of society.

In addition to the human and social benefits of no-fee record relief, there are at least two compelling financial reasons for the approach in Bill S-212. First, public safety officials recognize that every dollar the government invests in record relief translates into two dollars of revenue because individuals are able to secure employment and pay income tax.

Second, having records expire after a certain number of crime-free years stands to significantly lessen bureaucratic complexities that have driven up the cost and wait times of record expiry.

[Translation]

From a public safety perspective, it is more efficient for criminal records to simply expire after a certain amount of time passes.

[English]

Parole Board resources have been significantly stretched by piecemeal changes to the record system that have created four different application paths for the board to administer, each with their own intricacies. One is the general record suspension process; two is the former pardon process for those who are still entitled to use it; three is the expungement process for those criminalized as a result of historical discrimination against members of 2SLGBTQ+ communities; and four is those eligible for cannabis record suspensions.

Bill S-212 would replace these with one system that allows the Parole Board to redirect its limited resources to other key aspects of its mandate.

Question number six relates to this streamlined system: Does Canada have the necessary record-keeping technology in place for record expiry?

At the Senate Legal Committee, a previous public safety minister testified that administering record expiry without applications would require a comprehensive national record-keeping system. Bill S-212 would require that if police are going to disclose an unexpired criminal record, they must also ensure it is registered in the RCMP CPIC database. CPIC would then serve as the centralized record system required to support automated record expiry, without the need for an application by the individual.

Implementation of non-application-based record expiry is not beyond Canada’s technological reach. Countries like the U.K., France, Germany and New Zealand have all implemented automatic forms of record expiry into their systems. In fact, Canada already has this type of record expiry approach as part of our youth criminal records management system.

This brings us to the seventh and final question: Isn’t the government already working on criminal record legislation?

Bill C-31, introduced just prior to the last federal election, was a step in the right direction, but it simply fell short when measured against the government’s own public consultations. Over 80% of Canadians support some form of record expiry that is administered automatically, rather than requiring an application. Nevertheless, Bill C-31 would retain complex application requirements.

Likewise, 80% of Canadians describe application fees as a significant barrier for those seeking record suspensions; over 60% described the fee and the application process as a further punishment. The government has committed to reducing fees, but has not provided details regarding the amount or the timeline.

For evidence that Bill C-31 will not meet the government’s stated objective of addressing systemic inequities in the record system, we need look no further than past criminal record reform bills, particularly Bills C-66 and C-93, which made piecemeal changes, easing some but not all of the burdens of the current system for narrow categories of applicants whose convictions related to historical discrimination against 2SLGBTQ+ communities and those convicted of possession of cannabis.

These bills removed application fees, but Bill C-31 would not.

Even with these attempts to create easier to navigate, more user-friendly applications than what Bill C-31 would offer, shockingly few people have accessed these forms of record relief. When cannabis possession was decriminalized, an estimated 250,000 Canadians had possession records, yet Bill C-93 was expected to help only about 10,000 people get relief from cannabis possession records. More than two years later, only 484 people have actually obtained those pardons. At the same time, the system has turned away approximately 300 people because they did not meet the rules and requirements of the application process.

In the first three years of Bill C-66 being in force, only nine out of an estimated 9,000 people with records relating to 2SLGBTQ+ discrimination — that’s a mere tenth of 1% — have obtained record relief. This is simply unacceptable.

We do not know if or when the government will bring Bill C-31 back with the necessary changes to ensure that record relief is meaningfully accessible. If they do, I will be the first to support an effective government bill. In the meantime, however, I humbly urge us to act.

The systemic injustices in the criminal record system are marginalizing people, families and communities and they require our attention now.

Let me conclude by quoting the government’s 2019 Final report on the review of Canada’s criminal legal system. One of the report’s recommendations is to:

. . . adopt a whole-of-government approach to make pardons more accessible, to ensure that certain offenders have the opportunity to move on without a criminal record impeding their attempts to focus on the future.

The current system is not accessible. It is also unnecessarily expensive and bureaucratic. It does not improve safety for Canadians. In fact, it undermines public safety. It creates barriers to reintegration and to the ability of people to contribute to their communities. It pushes people to the margins, away from opportunities for work, education and volunteering and away from necessities like safe shelter and health care.

[Translation]

Because of the pervasive racism in criminal justice and corrections, the current system perpetuates and amplifies the systemic discrimination and inequalities faced by Indigenous and African-Canadian communities.

[English]

The government has acknowledged that the record system is unfair and untenable. Yet well-intended relief measures like Bill C-66 and Bill C-93 have not reached most of the people they were ostensibly designed to assist.

Bill C-31 likewise fell short. These approaches have barely budged the status quo and have therefore, however inadvertently, replicated its injustices. They continue to put the onus on individuals to navigate and fund onerous application processes. Bill S-212 would instead require the government to ensure that the punishment associated with a criminal conviction is not unjustly extended far beyond the sentence served.

When someone serves their sentence, they have paid their debt to society. As the Federal Court has said, “Our society has no place for double punishment or discrimination on the basis of criminal record . . . .”

When it comes to life after completing a sentence, according to the Supreme Court of Canada:

Individuals who have paid their debt to society are entitled to resume their place in society and to live in it without running the risk of being devalued and unfairly stigmatized.

This bill recognizes the positions of Canadian courts. It implements the intentions of the government with respect to Bill C-31. Most importantly, it reflects Canadians’ understanding of justice and fairness, from the thousands represented by the Fresh Start Coalition as well as those in the general public. Consultations have revealed a broad public consensus that current record suspension costs and procedures are unjust and punitive.

Honourable senators, let us work together to bring about long-overdue, evidence-based changes to the criminal records system in Canada. I look forward to your much appreciated contributions to this bill.

Meegwetch, thank you.