An Act to amend the Corrections and Conditional Release Act (victims' restitution and monetary awards for offenders)
Guy Lauzon Conservative
Introduced as a private member’s bill. (These don’t often become law.)
Introduction and First Reading
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Corrections and Conditional Release Act
Private Members' Business
February 16th, 2012 / 6:25 p.m.
Francis Scarpaleggia Lac-Saint-Louis, QC
Madam Speaker, the Liberal Party will be supporting the bill going to committee to study various aspects that have raised questions such those my colleague has just touched on.
As the member who is sponsoring the bill mentioned, it is very important that offenders be accountable. Therefore, the principle that underlies the bill is a good one. Liberals have always believed in personal accountability. It is a tenet of liberalism and, of course, that extends to offenders who are serving time for the crimes they have committed.
It would have been interesting if the sponsor of the bill had provided some concrete examples of situations where victims have suffered because of the absence of such legislation. It leaves us wondering whether the bill is responding to a real problem, or whether it is more of a theoretical exercise.
It is important for anyone watching at home to understand that this is not what has been referred to in the past as profits from crime legislation, introduced under a previous Liberal administration. The purpose of that legislation was to confiscate the proceeds earned by a criminal who, for example, wrote a book about his or her crime. That legislation, Bill C-205, an act to amend the Criminal Code and the Copyright Act, was introduced in 1996 by the Liberal member from Scarborough. That bill would have prohibited a criminal from profiting by selling or authoring a story of their crime. However, this is not what we are dealing with here. It is important that the two ideas not be confused.
The reason I bring up Bill C-205 is that, despite its good intention and good principle upon which it was based, it did not complete the legislative process because of the election. However, even a similar bill did not complete the legislative process. It was deemed unconstitutional when it was debated in the House because it violated the Charter of Rights and Freedoms. More than that, the issue fell under provincial jurisdiction because it is a matter of property, which is generally dealt with under civil actions within provincial jurisdiction.
Bill C-350 does raise some comparable issues about jurisdiction. In fact, as my hon. colleague from the NDP mentioned in his speech, Bill C-350 had a predecessor, Bill C-292. Unfortunately, that bill did not make it to the stage of adoption precisely because of jurisdictional problems.
I will read a quote from the researcher of the committee, Michel Bédard, who presumably was looking at the bill, but this was before I was appointed to that portfolio. He said:
I have doubts as to the federal government's power to pass provisions of this kind. It's important to understand that, according to the division of powers in Canada, property and civil rights fall within provincial jurisdiction. Under that head of power, the provinces have jurisdiction over contracts and all private law, including debt priority ranking. That includes debts owed to creditors, in particular.... It's important to realize that federal jurisdiction regarding debt priority ranking is limited to certain well-defined areas, such as bankruptcy, tax collection and banks.
In other words, this new debt priority ranking cannot be connected back to bankruptcy law, to banks, to tax collection or other areas of federal jurisdiction. What he is saying is that Bill C-292 had nothing to do with these areas where there would be a federal role. That is something we are going to have to discuss at committee when the bill gets there.
I believe that the committee researcher expressed the same reservations about Bill C-350. Again, this is going to have to be discussed at committee, which does not take away from the hon. member's noble motives in wanting to protect victims and underscore the need for offender accountability.
There may be a way in which the bill is constitutional, but there are some doubts. Establishing a debt priority ranking is a power, as I said, usually given to the provincial government. Bill C-350 uses this concept and applies it to a criminal matter where the federal government does have jurisdiction under subsection 91(27) of the Constitution Act of 1867. However, the constitutionality of this manoeuvre is open to debate.
Section 2(a), on using crown funds to repay spousal and child support debt, deals with a tricky issue. While it is true that the government does have jurisdiction over marriage, it may depend on how a judge interprets this provision. For example, a court could interpret the provision to apply only to all legally married couples. Furthermore, as stated above, the federal government can legislate in the area of marriage and divorce. However, there are certain parts of marriage and divorce law that have been delegated to the provincial courts. The nuances of such a relationship require further study.
Sections 2(b) and 2(c) of Bill C-350 use the Criminal Code provisions of restitution orders to establish a debt priority for victims and third parties, as well as victims' surcharges. Restitution is defined as equity aimed at restoring a person to whom a duty was owed to the position in which he or she would have been had the duty not been breached. It does this through a variety of remedies, including compensation. It could be argued in regard to restitution orders requiring an offender to pay financial compensation to a victim or third party that the federal government is legislating in a provincial area.
The constitutionality of restitution orders, as a federal power, was upheld most recently in R v Zelensky in 1978. However, Bill C-350 goes much further than the Zelensky decision in that it elevates restitution orders in the debt priority ranking. Bill C-350 establishes that payment to parties outlined in the bill receive priority over any other debts or fees incurred as a result of the offence. Currently, restitution orders are placed on the same level of priority as other provincial fees levied during the criminal court process, like administrative fees and fines.
There is another interesting aspect. What happens if the offender is innocent and after doing his or her time in prison wins a court case whereby their innocence is proved? Are there measures to reverse the situation to take care of that eventuality?
This will all be studied at committee and I look forward to doing that.
Corrections and Conditional Release Act
Private Members' Business
February 16th, 2012 / 6:15 p.m.
Sylvain Chicoine Châteauguay—Saint-Constant, QC
This legislation was originally introduced on September 28, 2010, as Bill C-292. That bill also sought to make offenders accountable, so that they would fulfill their obligations to society. Therefore, that objective was added to section 3 of Corrections and Conditional Release Act . Under Bill C-292, if an inmate was awarded money following a legal action or proceeding, the government would seize that money and split it equally between the beneficiaries of a restitution order, a child or spousal support order, and a civil judgment against the offender.
If the offender had no obligation or debt to these people, he still could not get the monetary award, which was distributed to organizations that help victims or to other similar entities. This bill did not make any sense then, because if, for example, an inmate was abused in jail and then compensated following a civil proceeding, he still could not get the money, even though he had no obligation to his family or to the persons I mentioned.
Consequently, the bill was significantly improved. In the case of Bill C-350, the obligation to distribute the money that the inmate would receive has been removed and that money is now given to him. So in this sense it is an improvement.
We can think of other examples. This is not just about people who suffer abuse in jail. It could be a reckless driver who was responsible for an accident causing death and who received compensation through the Société de l'assurance automobile du Québec. This bill would also have allowed the government to seize this compensation and redistribute in accordance with the priority list in Bill C-350.
The previous version of Bill C-350 was amended. The responsibility of offenders regarding their obligations remains the bill's primary objective. However, Bill C-350 seems more specific in certain respects than Bill C-292 was. First, it indicates in a more concise fashion who would get part of the compensation received by an inmate. An order of priorities is set: first, the money owed by the offender pursuant to a spousal or child support order will be given to his family, then the money owed by him pursuant to a restitution order, followed by civil judgments and fines.
The compensation will no longer be paid in equal parts, as stipulated in Bill C-292. It will instead be pro-rated in the manner described in Bill C-350. If there are any remaining funds, they will be paid to the inmate. I should think that the inmate would be entitled to the money. This provision is different from the one in Bill C-292 because of concerns about areas of jurisdiction. The remainder of the obligations set out in Bill C-350 are pre-existing legal obligations. By listing these rights, the bill seems to do a better job of addressing the priority of claims. However, the priority of claims also falls under provincial jurisdiction.
It is our belief, therefore, that this bill contains relevant provisions such as the protection of families and victims. All members of society must be held accountable for their obligations, and that obviously includes prisoners. Being incarcerated in no way removes the inmate's obligations and responsibilities. An inmate must still meet the needs of his family and, obviously, comply with child and spousal support orders.
Compensation is of equal importance for victims. According to the Federal Ombudsman for Victims of Crime, in the eyes of the law, a victim is a person who has suffered physical or psychological harm as a result of a crime. Family members, legal guardians and dependents are considered victims when the victim is deceased or when the victim is a child or a person who is unable to act on his own behalf by reason of an illness or disability.
The victims’ compensation scheme was established not only to make restitution to victims, but also to compensate for any financial losses resulting from the crime. Victims may require all manner of care in order to recover. For example, we can think of medical expenses and psychological support.
The purpose of the principle of restorative justice is also to ensure that the victim is not victimized a second time. Consequently, making restitution means that the victim will have no need to navigate the judicial process a second time in order to receive restitution. This process, therefore, forces the victim to demonstrate that the harm suffered by him resulted from the crime.
Victims and victims groups have been calling for some time for legislative provisions of this nature that would force inmates to comply with family support and restitution orders. This was referred to in a document written by the solicitor general dated 1987.
We are also pleased to see that the bill identifies priorities and that support payments will be at the top of the list. The Federal Ombudsman for Victims of Crime made the following recommendations in the report entitled “Toward a Greater Respect for Victims in the Corrections and Conditional Release Act”:
That the Government of Canada amend paragraph 133(3) of the CCRA to include a necessity for conditions to ensure offenders fulfill their court ordered sentences, including restitution and victim fine surcharges.
That the Government of Canada amend subsection 78(2) of the CCRA to authorize the CSC to deduct reasonable amounts from an offender's earnings to satisfy any outstanding restitution or victim fine surcharge orders.
Still, this legislation is not perfect. In my opinion, the problem with this bill is that it creates two civil law systems: one for prisoners and the other for the rest of society. The protection of the law applies to all citizens, including prisoners. In civil law, there are provisions that force individuals to repay their debts. For example, salaries may be garnished to force an individual to pay child support. However, there is a big difference between existing provisions and this bill.
Unfortunately, the government cannot intervene to enforce court orders, thereby circumventing the courts. The government cannot take over the courts' role in the justice system. For example, in the case of support payments, the family must take the case to a civil court and go through the normal justice process. Any loss of basic civil rights cannot be taken lightly lest the justice system revert to principles of punitive justice.
In my opinion, we cannot deny some individuals their rights in order to help others. We cannot rob Peter to pay Paul. That is why we must strike a balance between victims' rights and prisoners' rights.
This bill includes another important measure aimed at better integrating prisoners into rehabilitation programs. Such programs have been very successful. It is not enough to hold prisoners financially accountable. They also need to understand the reason for their actions and the consequences of their actions. Rehabilitation is an integral part of the rehabilitation process for prisoners. This kind of program should also be offered during the inmate's parole period.
To sum up, the spirit of Bill C-350 is entirely relevant. Offenders must be held accountable for the financial obligations issued in lawful orders.
Let us all support this bill and hear from experts regarding the bill's validity.
December 8th, 2011 / 12:10 p.m.
That wasn't the reason. When we studied Bill C-292, I said that it encroached on the provinces' authority on property and civil rights. We changed the restitution order. It's often under provincial authority, unless the federal government has jurisdiction.
Furthermore, we were "expropriating" from offenders money that belonged to them. It's as if we said that everything that remained of an order no longer belonged to the offender, but would now belong to a victims' group, whether the victims' group, or a victim advocacy group, had a claim of some kind against the offender. It was practically expropriation.
This problematic provision no longer appears in Bill C-350. In the preliminary remarks when we did the study, I said that some questions could still be raised, constitutionally speaking. But we are at the start of the legislative process. As you know, when the courts are required to look into whether a bill is constitutional or not, they are going to study the intrinsic proof, meaning what is said in the House. They will try to determine the pith and substance, justly, through debate and study in committee. Right now, this proof doesn't exist because the debate hasn't happened, and it seems that the bill could still certainly benefit from amendments at the committee stage.
Procedure and House Affairs
Committees of the House
October 28th, 2011 / noon
Joe Comartin Windsor—Tecumseh, ON
Mr. Speaker, I have the honour to present, in both official languages, the 8th report of the Standing Committee on Procedure and House Affairs.
Pursuant to Standing Order 92(3)(a), the committee hereby reports that it has concurred in the report of the subcommittee on private members' business advising that Bill C-292, An Act to amend the Corrections and Conditional Release Act (victims' restitution and monetary awards for offenders), should be designated non-votable.
October 18th, 2011 / 12:25 p.m.
The Chair Harold Albrecht
The clerk.... For the section on Bill C-292, the bill that was rejected as being votable, it's that they have the transcript of the discussion surrounding the reasons for that bill being considered non-votable, to have it available to the full PROC membership so they can understand our rationale in arriving at that decision.
October 18th, 2011 / 12:25 p.m.
The Chair Harold Albrecht
Does anyone have any concerns?
I see none.
Okay. Motion No. 271 is considered votable.
Now I need to formalize this subcommittee's work.
The first motion will be regarding the ones that we've deemed votable. The only item we're excluding here is Bill C-292, and we'll come to that later. The subcommittee will present a report listing those items that it has determined should not be designated as non-votable and recommending that they should be considered by the House. These are the ones that will proceed.
All in favour of that motion?
(Motion agreed to)
The second motion is that the chair report the subcommittee's finding that Bill C-292 is non-votable to the Standing Committee on Procedure and House Affairs as soon as possible.
Does everyone agree?
(Motion agreed to)
That's the action of our committee today.
That meeting will be on Thursday.
Is that when we report?
October 18th, 2011 / 11:35 a.m.
Corrections and Conditional Release Act
September 28th, 2011 / 3:15 p.m.
Guy Lauzon Stormont—Dundas—South Glengarry, ON
moved for leave to introduce Bill C-292, An Act to amend the Corrections and Conditional Release Act (victims’ restitution and monetary awards for offenders).
Mr. Speaker, I am pleased to introduce an amendment to the Corrections and Conditional Release Act. This amendment will ensure that any monetary amount awarded to an offender pursuant to a legal action or proceeding would be paid to the victims and other designated beneficiaries.
This amendment ensures that victims of crime come first and that criminals do not profit from their crimes. It is another example of this government putting the rights of victims ahead of the rights of criminals.
(Motions deemed adopted, bill read the first time and printed)