Expungement Criteria for Bawdy-house and Abortion Convictions

Summary#

The federal Order Establishing Criteria Related to Certain Offences Listed in the Schedule to the Expungement of Historically Unjust Convictions Act sets out the types of proof people must provide when they apply to have certain old convictions removed (expunged). It applies to bawdy-house and other indecency-related convictions and to several abortion-related convictions and came into force on February 17, 2023.

What it does#

• Defines what evidence an applicant must supply to show an old conviction fits the kinds of activity that are no longer crimes.
• For bawdy-house and indecency-related offences:
  • The conviction must be linked to a place kept for the practice of acts of indecency (for example, bathhouses, certain nightclubs or swingers clubs) and not to a place kept for prostitution.
  • The activity must have involved consensual sexual activity being viewed or engaged in.
  • The convicted person must not have exchanged money for sexual services.
  • Certain indecency offences are only eligible if they happened inside such a venue.
• For abortion-related offences (different rules depending on the exact charge):
  • If the convicted person performed or used means to cause a miscarriage, they generally must show they were a medical doctor, nurse or midwife and that the person who had the abortion consented.
  • If the convicted person helped someone access the means to have an abortion, they must show they acted at the request of the person who had the abortion.
  • If the convicted person was the pregnant person who used the means to procure their own miscarriage, they must show they were the pregnant person.
• If required documents are unavailable, applicants can provide a sworn statement explaining efforts to get them and affirming the facts.
• The Parole Board of Canada is the body that receives and reviews expungement applications and will assess whether the listed criteria are met.

Who's affected#

• People with historic convictions for bawdy-house, indecent acts, indecent show, indecent exhibition, immoral theatrical performance, nudity and similar offences.
• People with historic convictions for abortion-related offences such as procuring a miscarriage or supplying a noxious thing for that purpose.
• Owners, employees, patrons, transporters and performers who were charged in relation to venues (including bathhouses, 2SLGBTQI+ nightclubs and swingers clubs).
• Medical professionals who were convicted in relation to abortion procedures and people who assisted someone to access abortion services.
• Representatives of deceased people who had these convictions (they can apply on the deceased person’s behalf).
• Service members whose convictions were under the National Defence Act (those convictions are also eligible).
• Federal agencies and police forces who will be involved in removing records, including the Royal Canadian Mounted Police.

Why it matters#

• It helps people who were convicted for activities that are no longer crimes to clear their records. That can remove barriers to work, housing, travel and reduce stigma.
• It recognizes historical injustices, especially the targeting of the 2SLGBTQI+ community (for raids on bathhouses and similar venues) and the criminalization of people who sought or helped with abortions.
• Practical details and limits:
  • The government estimates about 18,579 records linked to bawdy-house/indecency offences and about 67 abortion-related convictions in the RCMP database.
  • Officials estimate up to 2,500 applications might be filed and about 90% could be accepted.
  • Processing time estimates include 73 minutes for initial screening and 277 minutes to investigate and decide an application.
  • The government estimates an implementation cost of about $1,192,104 over two years (broken down as $147,489 to applicants, $666,739 to the Parole Board of Canada, and $377,876 to the Royal Canadian Mounted Police).
• Note one important limitation: federal expungement makes federal records disappear, but provincial and municipal courts or police services hold their own records and are not legally bound by the federal order (though they are generally expected to comply).