06/15/2018 10:02 EDT | Updated 06/15/2018 12:54 EDT

Canada Should Expunge All Historically Unjust LGBTQ Convictions

Members of the LGBTQ community who have been criminalized in the context of consensual sexual relations should be able to access the justice they deserve.

Late last year, Prime Minister Justin Trudeau offered up an official apology to Canada's LGBTQ community. In it, he acknowledged the historical persecution and systemic discrimination that LGBTQ Canadians have faced throughout the years.

The Liberal government also came up with an action plan to help right some of the wrongs suffered by LGBTQ people, as best it could. Part of that action plan included Bill C-66, better known as the Expungement of Historically Unjust Convictions Act. This bill was introduced in order to help wipe away criminal convictions that arose out of inequitable and discriminatory laws, which were historically targeted at the gay community.

Bill C-66 seeks to broaden powers to expunge criminal records by giving the ability to do so to the Parole Board of Canada in a streamlined and cost-effective way. This will remove and destroy any record of conviction from all federal repositories and systems.

Chris Wattie / Reuters
Prime Minister Justin Trudeau hugs Liberal MP Randy Boissonnault, Special Advisor to the Prime Minister on LGBTQ2 issues, after delivering an apology to members of the LGBT community in the House of Commons on Parliament Hill in Ottawa on Nov. 28, 2017.

Expungement acknowledges that not only was the conviction unjust, but it should have never happened in the first place.

But some LGBTQ advocates, including the Canadian HIV/AIDS Legal Network, are unhappy with the bill and are saying that it simply doesn't go far enough to undo past injustices.

The main gripe has to do with the types of crimes that Bill C-66 makes eligible for expungement.

The current draft only allows for three types of crimes to be considered.

These are buggery, gross indecency and anal intercourse. All of these portions of the Criminal Code have been used to target and criminalize members of the gay community, from the 1960s onwards.

But members of the LGBTQ community were not prosecuted under these sections alone.

For example, between 1968 and 2004, more than 1,300 gay men were arrested and charged under bawdy house laws, aimed at sex workers, during bathhouse raids.

By using a law that was originally drafted with the intent of criminalizing sex work, police were able to have people prosecuted based on their sexual orientation without the outward, obvious appearance of doing so. In this way, a seemingly neutral law was applied for discriminatory purposes.

However, convictions under this portion of the Criminal Code are not eligible for expungement under Bill C-66, which is somewhat puzzling.

Neutral laws, applied in a discriminatory fashion, effectively neutralize our ability to dissent

After all, Trudeau has specifically recognized the bathhouse raids as an intolerable affront on the rights and dignities of LGBT people in our country.

But this omission appears to be a matter of design, not oversight, on the part of the Liberals.

One reason for this is that the so-called bawdy house laws remain on the books. Presumably, people are still being charged under them, and it does not appear that the government has any intent of repealing or rewriting them in the near future.

Moreover, because the bawdy house laws are neutral — in that they apply to both same-sex and opposite-sex relationships — the government is of the view that they cannot be properly addressed under Bill C-66.

Frank Lennon via Getty Images
Bathhouse raids in Toronto on Feb 5, 1981.

The Trudeau cabinet appears to be of the view that this issue may be more appropriately addressed in a separate, future bill seeking to reform the laws around sex work.

Don't hold your breath on that, though.

The fact of the matter is that seemingly neutral laws, like the bawdy house laws, as well as laws against vagrancy, nudity, obscenity and HIV nondisclosure, have been used to target and discriminate against particular communities throughout history. This is not limited to sexual minorities, but also to racial, ethnic and religious minorities.

In this way, the use of "neutral" laws only help to proliferate discrimination. They mask discriminatory state practices, making them invisible and more insidious. In turn, discriminatory acts become more difficult to identify, address and subsequently dismantle.

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Neutral laws, applied in a discriminatory fashion, effectively neutralize our ability to dissent.

This is why it is so important for Bill C-66 to tackle this issue head-on.

The expungement provisions should be properly expanded to include historically unjust crimes, in much broader terms than the current version contemplates.

Members of the LGBTQ community who have been criminalized in the context of consensual sexual relations between adults should be able to access the justice they deserve, no matter how they were technically prosecuted under the law.

Until this occurs, justice will not properly be served, and the Liberals' apology will be nothing more than words.

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