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This Pride Month marks the third anniversary of the “,” 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  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 .

Problems with the legislation

In November 2017, Prime Minister Justin Trudeau told the House of Commons he was proud to introduce the  as a remedy for past wrongs, including the government’s .

The prime minister also said the act was meant to address the ways “.”

There were  in RCMP databases as of 2016 - so why such a slow uptake of the expungement process?

Back when the bill was before parliamentary committee,  was  of a  of  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  to obtain, at their own expense, a copy of the court and police records of their conviction, an often-daunting research process. The case , the trigger for , 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, . 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  – 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 , 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 . 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.