The act was a centrepiece of the federal government’s apology to LGBTQ2 Canadians in 2017. But figures obtained from the Parole Board of Canada via e-mail indicate that in the three years since the act came into effect, only 41 applications have been received and, of those, only nine people have successfully had their convictions cleared.
Back when the bill was before parliamentary committee, I was part of a group of historians who pointed to serious problems that persist in the legislation, including onerous requirements for documentation, an unequal age of consent and an overly restrictive schedule of eligible offences. These help explain the low number of expungements to date.
In 1965, during an investigation by police in the Northwest Territories into a supposed arson, Klippert was asked about and admitted to homosexual relations. Homosexuality was illegal in Canada at the time and Klippert found himself charged with gross indecency, convicted and declared a “dangerous sexual offender.” In 1967 he unsuccessfully appealed this decision to the Supreme Court of Canada.
Crane points out in an interview with me, that because Klippert’s case went to the Supreme Court, it generated a thick case file, the contents of which were integral to the successful expungement application.
Most historical convictions for same-sex offences, however, have been dealt with by lower-level courts, the records for which, if they still exist, may or may not have made their way into a public archive. If they have, the backlog of unprocessed court records in many archives would make it very difficult to locate a record. If the documents cannot be found, applicants must produce a letter from the court explaining why.
Even in Klippert’s case, Crane says it took considerable effort, including a second lawyer assigned to the case, to research and assemble the required documentation and to advocate on Klippert’s behalf to the Parole Board.
This was a lesson Cliff Everton told me he learned the hard way.
In 1979, Winnipeg police showed up at Everton’s door, claiming to be conducting a survey of the gay community. Everton, in his 20s, answered police questions, including intimate details about his relationship with his 18-year-old live-in boyfriend. Because the boyfriend was under 21, police charged Everton with buggery.
In the subsequent trial, the judge gave Everton a two-year suspended sentence and criticized the methods used by the police in their investigation.
Four decades after his ordeal, Everton began the expungement process by searching for his record in court archives, but nothing turned up. He eventually found a copy of the court decision in the University of Manitoba Archives and his expungement was granted.
Had the age of consent for homosexuals been made equal to heterosexuals, something that only happened two years ago, Everton would not have been charged with this offence in the first place.
When it comes to age, the Expungement Act perpetuates queer injustice. Although concerned with historical convictions, the Act uses the current age of consent of 16 established in 2008. This means that anyone whose same-sex offence occurred before 2008 will be held to a different standard than straight people for whom the age of consent before 2008 was 14.
Rosenes applied for an expungement but can’t get one because the act does not include bawdy house offences — despite Trudeau’s explicit reference to them during his apology.
The act does allow for other offences deemed unjust or unconstitutional to be added. And yet, even though bawdy house laws were repealed in 2019, they still haven’t been added to the list of expungable offences. Neither has vagrancy, which has been used to police lesbians, sex workers and transgender people.
Historically, police have made liberal use of Criminal Code provisions to police same-sex relations and gender expression. The government needs to expand the list of expungable offences while easing the documentary requirements and fixing the unequal age of consent. Only then will Trudeau’s apology and the Expungement Act move beyond mere words to a more meaningful response to the historical and ongoing policing of queer people in Canada.