This Pride Month marks the third anniversary of the “Expungement of Historically Unjust Convictions Act,” which allows people to clear their record of past offences involving consensual same-sex activity, convictions now considered unjust.
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.
The small handful of expungements falls far short of the act’s intent and calls into question the apology’s substance.
Problems with the legislation
In November 2017, Prime Minister Justin Trudeau told the House of Commons he was proud to introduce the Expungement Act as a remedy for past wrongs, including the government’s purge of queer people from the Canadian military and public service.
The prime minister also said the act was meant to address the ways “discrimination against LGBTQ2 communities was quickly codified in criminal offences like ‘buggery,’ ‘gross indecency,’ and bawdy house provisions.”
There were over 6,000 Canadians with convictions for “buggery” and “gross indecency” in RCMP databases as of 2016 - so why such a slow uptake of the expungement process?
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 the archives
The act requires an applicant to obtain, at their own expense, a copy of the court and police records of their conviction, an often-daunting research process. The case of Everett Klippert, the trigger for Pierre Trudeau’s 1969 partial decriminalization of buggery and gross indecency, speaks to the challenges.
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.
Like many others with unjust same-sex convictions, Klippert died before benefiting from the Expungement Act. Brian Crane, the lawyer who represented Klippert during his unsuccessful appeal, applied last year on behalf of Klippert’s family for an expungement.
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.
The ever-shifting age of consent
Even after partial decriminalization in 1969, the age of consent for homosexual sex was set seven years higher than for heterosexuals – 21 instead of 14 (it was later lowered to 18 in 1988).
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.
Found-ins and vagrants
The act allows for the expungement of only a small fraction of offences used historically to police same-sex relations.
Toronto resident Ron Rosenes explained to me that he remembers the night in February of 1981 when police raided the city’s bathhouses and charged him with being a “found-in,” meaning he was arrested in a common bawdy house.
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.