Bill C-37

Françoise Boivin Gatineau, QC

Mr. Speaker, again, I want to thank the hon. member for Ancaster—Dundas—Flamborough—Westdale for introducing Bill C-479, which the NDP will support at second reading. I must admit that we will support it without much reservation.

Not only does the bill talk about helping victims, but, in practical terms, it will achieve the desired effect. Sometimes in the House, we hear grand speeches, great oratorical rhetoric from the government benches. It gives the public the impression that the government is doing something, when in fact it is not. It does a little bit here and there, but does not necessarily achieve what we are looking for.

That cannot be said about this bill. Of course, we have to take a good look at it, because I rarely write a blank cheque, especially not when it comes to the Conservative government's bills. I would like for us to study the bills in committee, go over them in greater detail, and ensure that we come back to the House at third reading with bills that make sense.

We think it is safe to say that the bill is legal and consistent with the charter and the Constitution. Regardless of the political side of the matter, it achieves the desired effect and even if it does not achieve the desired political effect, it makes sense.

The bill finally truly addresses the issue of victims. Anyone who has practised law and who has been inside Canada's courthouses from coast to coast has noticed some very specific things, above and beyond the money that the justice system costs and the financial burden that many victims face.

According to the government, Bill C-37, with regard to the surcharge, will solve almost all of victims' financial problems. However, when we dig a little deeper, we realize that, once again, this is only a drop in the bucket when it comes to what victims need. What do victims tell us on a regular basis? What does the Federal Ombudsman for Victims of Crime tell us? What recommendations did she make at the time?

In her 2010 report, among others, she recommended that the federal government shift the burden of responsibility to provide information to victims under the Corrections and Conditional Release Act from victims to the Correctional Service of Canada and the National Parole Board.

The member opposite's bill addresses part of that recommendation. It responds to the recommendation to give victims the right to attend National Parole Board hearings through the use of available technologies such as video conferencing.

It also responds to the recommendation to take into account the needs of victims when it comes to the timing, frequency and scheduling of parole hearings. However, these are not the only things that the ombudsman asked the federal government to do.

The Minister of Justice is on a tour of Canada to try to talk to victims. I thought that he had done this quite awhile ago and that he had a good idea of victims' needs. I can give him some suggestions that could be included in a possible charter.

Clearly, this type of bill could set out fundamental principles that show the respect that Canadians and the Government of Canada have for victims' needs, including during court cases and trials.

The problems are not limited to parole. They are sometimes related to the trials themselves, which can often seem to go on forever. We can implement all the measures we like under Bill C-479, Bill C-489 or any other bill, but if we do not resolve the problems related to accessing justice and awaiting trial, then victims will remain victims for a long time yet.

Not only are they victimized during sentencing and at parole hearings, for instance, but they are also victimized in the very process of reaching a verdict. This is a fundamental problem.

Often they are not even fully aware of what is going on. Sentences are negotiated between Crown attorneys and defence lawyers. Victims—who may have been summoned three, four, five or even 10 times during some exceptionally long trials—could find themselves back at square one. On top of that, they are told they have to appear before the parole board, which also takes time, and they are asked to stand in front of the person who victimized them. Thus, they are victimized all over again.

With government bills, whether they come from the back benches, the government itself or the Senate, a piecemeal approach is often taken, when a comprehensive approach is required. It always breaks my heart a little, because I have so much respect for our justice system. I also have a very hard time seeing how the public perceives its judicial system. Yes, it definitely has some flaws, but we are trying to correct them. Basically, every time we correct just one little thing, we open up a new Pandora's box and create imbalances. That is the problem.

In the context of Bill C-479, I do not think it is unreasonable to ask my colleague to clarify these changes, like the one to revisit parole reviews for offenders serving a sentence of less than two years.

We need to keep in mind that these are vile offences, as he said. When it comes to violent offences, some victims and their families may prefer not to attend parole hearings. Some victims, for example rape victims, should not be called to appear at all, not even through videoconference. Some of them need to completely close themselves off from that part of their lives. We need to be very respectful of that, while giving those who want to speak the opportunity to do so, since that is what some people need. They want to face their aggressor. For them, it is a way to get over the events of their past.

There is so much we can do to support victims if we really want to and if we go beyond talking. I believe that words revictimize these people, because words seem to promise solutions to their problems. In the end, however, five or 10 years later, they will realize that nothing has changed.

As for the surcharges suggested in the bill, they are peanuts. They will only add a few tens of millions of dollars to our coffers. Let us look at the numbers. I did not come up with them; Senator Boisvenu did. He enjoys showing up everywhere to remind us of these numbers, and rightly so.

In 2003 alone, crime cost $70 billion. Victims assumed 70% of the cost of crime, or $47 billion.

Professor Irvin Waller appeared before the committee when we were studying Bill C-37, which the government bragged about at length as the solution, the way to do the right thing for victims. The government set aside about $16 million in the budget for victims.

Professor Waller said that it did not mean much. The government should work with the provinces and fund a study on the remaining gaps between services and needs. All these things have been recommended. All the government has to do is decide to act.

I think victims deserve a little more respect from their government. The government should move from words to action. It should do more than just pretend and hold press conferences for the fun of it. We need to try to find lasting solutions that get to the heart of the issue of justice system accessibility, first and foremost. We need to ensure that trials take place much more quickly than they are now.

Some provinces, including Alberta, think the answer is more judges. Let us make that happen. We need to, if we believe in a system of justice, law and order that works and that respects victims.

I thank my colleague opposite for his bill. The NDP will study it carefully in committee, and we will be proud to support it at second reading.

The Speaker Andrew Scheer

The House will now proceed to the taking of the deferred recorded division on the motion at third reading stage of Bill C-37.

Tyrone Benskin Jeanne-Le Ber, QC

Mr. Speaker, I am very pleased to stand in the House to speak to Bill C-37. New Democrats support the bill in principle, which I am sure comes as a welcome relief for my colleagues across the way. We support the bill, first and foremost, because we support victims of crime, their families and communities.

We take note of the recommendations made by the Ombudsman for Victims of Crime, whose office wrote four years ago that it recommended repealing subsections 737(5) and (6) of the Criminal Code to remove all discretion of judges to weigh the surcharge and make it automatic in all cases. The removal of the discretion of judges has been the subject of some debate in the House.

The report went on to say that judges' discretion had been widely and improperly applied. As well, the judges themselves wrote the Minister of Justice asking him to push for the doubling of these fines. As far as the doubling of fines, New Democrats support the bill and its recommendations, but I would like to offer some food for thought.

While we support Bill C-37, there are some concerns that persist as to the administration of these funds and what they are intended to accomplish. In administering these funds, are we truly providing victims with justice? That is a question I will look at a little later.

I want to make it very clear that providing services to crime victims has always been and will continue to be our priority. Using these funds in a transparent way to meet the needs of crime victims is a step in the right direction.

We must not lose sight of the larger goal of preventing such criminality in the first place. Too often criminal action is the direct outcome of social and economic precariousness. Too often crime is the terrible yet predictable consequence of poverty and a seemingly hopeless future. Too often we try to address the needs of victims while ensnaring those who have already been disenfranchised in a cycle of marginalization.

The question is this. Can we address the needs of victims without ensnaring those who have already been disenfranchised and caught in a cycle of marginalization? We have to focus our energies on preventing that disenfranchisement, that marginalization, as well as those criminal acts, thereby reducing the number of victims.

It is not always easy, of course. When confronted with the aftermath of crime, we react with disgust, revulsion, anger or a desire for vengeance. Less than a week ago, the members of the House rose to observe a minute of silence. We remembered the 14 women who died as a result of a horrific crime committed in my hometown of Montreal.

This is a time when we are all conscious of the horror of violence and, in particular, gender-based violence. Just as we will never forget what happened that day, we cannot permit ourselves to do simply the minimum of only addressing the issue of crime with punitive measures. As my grandmother would say, “It's kind of like closing the barn door after the horse has left”.

We must acknowledge that punishment and fines only hold so much sway. In all honesty, our citizens demand more from us. They know that crimes are committed for complicated reasons and while supporting victims is our clear and primary objective, preventing future victims and future victimization by preventing future criminality is, by far, the best use of our resources, our talents and our time.

I would like to give my esteemed colleagues an example of the complexity of this issue and the need for a more comprehensive approach to criminality. It is a point that was brought up by one of my colleagues earlier in her question. We know that 82% of incarcerated women were previously victims of physical or sexual aggression. I would like to add to that the fact that 91% of incarcerated women are of first nations origin, a vast overrepresentation. One has to ask where was the victim support that they needed, whether financial, psychological or sociological?

These statistics illustrate the need for victim support, for better financing of victims services but also for a more restorative and holistic justice system. These women who were abused, for what ever reason, self-esteem, a need to survive, resorted to criminal acts: a bounced cheque, prostitution, petty theft. If there were services that helped them regain their self-esteem, to help them through that process, frankly, if we as a society knew a little more and spent more energy educating ourselves on the long-term effects of sexual aggression and gender violence, would this 82% of women be incarcerated? That is a question we need to ask ourselves.

Increased fines are increased fines; they help to a certain extent. The projected use for these fines, as I understand it, is to go to victims services, but in what way? We are seeing a weakening of the services available to victims. It is a step in the right direction, but the fines, increased or not, do not and will not interrupt the cycle of crime.

The judicial system in Quebec, my home province, favours reforms and reintegration to ensure justice. The proof of this approach can be found in a tour of the neighbourhoods of Petite-Bourgogne, Saint-Henri and Pointe Saint-Charles in my riding.

I am very proud to represent these communities. Anyone who tours these neighbourhoods will see how areas once riddled with crime can be transformed with the proper guidance.

We unequivocally support increased funding of services for crime victims. Providing better funding and an open, transparent system that gives victims access to the services they need is an important measure.

Support for victims services has to be more than just charging more money to criminals. It has to be more for the simple reason that I would think a considerable majority of these petty criminals would have very little to give to these organizations. Our energy needs to be put into creating financial support for victims of crime through organizations and support that is about restoration, not only of what was taken from them but what they feel they have lost.

I was robbed once. Someone broke into my condo in a very timely manner when the all the alarm systems were being redone. Yes, it was suspicious. However, one comes home to the feeling of someone being in one's apartment, going through one's things and not only taking things that are of value financially but things that are of value because they were given from a child or they were the last thing given by a grandparent. Although my mother raised fairly strong children, it took a long time for me to get through that sense of violation, and that was only from having my home burglarized.

As I have mentioned, there is a need for victims services. However, for those people who find themselves in marginalized, disenfranchised and isolated situations, it is of the utmost importance. Having those services could very well prevent a large number of these types of crimes, where some women find themselves on the wrong side of the law. These are crimes of survival and of need.

We have to look at justice as a three dimensional thing. It is not simply that because one did something wrong that one needs to go to jail. We need to understand why people do the things they do.

Criminals are criminals. They are going to do things, be bad people and they will pay for it as the justice system allows. However, not every criminal has a criminal mind. There is a reason for their criminality. Therefore, there is a need to have more resources put into making sure that victims of crime, victims of sexual abuse and gender violence, are not placed in a position where they have to commit a crime because the criminal acts put upon them dehumanized them so much that they could not function in society.

There are very important interventions that we need and can make, financial interventions, support for these organizations and support for people who have lost loved ones or who have lost fortunes. They are important among the many things that we can undertake as we seek to improve our justice system.

Our aim needs to be to make our justice more logical, more balanced and, indeed, more helpful to our citizens. This is what we hope the government will take away from these debates we have been having on a bill that we do support, but there is something that is missing from that bill. It is that restorative outlook in what we can do to prevent the creation of more victims as opposed to overly punishing criminals.

There is something that keeps sort of popping into this discussion whenever we discuss any of these bill, which is that the opposition supports crimes or that it is soft on crime.

We need to remember that the laws we have in place, even those laws that are abused by those who commit crimes, those laws are actually in place to protect the innocent. They are there to ensure that governments and police law enforcement agencies do not run roughshod over people's constitutional rights. They are not there to protect criminals. They are there to protect those people from getting caught in a situation not of their making and having every recourse of the law to ensure they can prove their innocence.

Unfortunately, like anything else, somebody who wants to abuse that will abuse it, but we cannot change those protections because we are afraid of those who abuse it. If we do, we law-abiding citizens, Canadians, will lose those protections ourselves.

I will just reiterate the last part of my speech by saying that the interventions, such as support for victim groups, is incredibly important and we must make every effort to make our justice system more logical, more balance and more helpful to all our citizens.

Sadia Groguhé Saint-Lambert, QC

Mr. Speaker, thank you for this time, which I will be sharing with the hon. member for Manicouagan, when I will state my position on Bill C-37. I would like to tell the House that we support the increasing offenders’ accountability for victims act.

This bill responds to a need expressed by intervenors and lobby groups. Even though our support is not complete, we are satisfied that such a measure will make it possible to award additional sums to victims. Our party has always had a clear position on issues relating to the judicial system. We argue for an equitable, impartial and progressive form of justice.

We believe that victims deserve all the assistance they require, and we believe that our role as parliamentarians is to support them. Criminals must take responsibility for their actions, but we must also remember that it is also our duty to encourage their rehabilitation. Bill C-37 is consistent with this logic, because it recognizes the victims' needs. It forces criminals to confront the consequences of their acts, and allows for the conversion of financial penalties to hours of community service.

The increasing offenders’ accountability for victims act will double the amount of the victim surcharge and make it mandatory for all offenders convicted of a criminal offence. At the moment, if a person's goods are lost or destroyed, or if personal physical or psychological damage is inflicted or threatened, the judge may order an offender who is convicted or discharged to pay an amount directly to the victim for damages.

Currently, a 15% surcharge is added to that amount. The money is used to finance programs that assist victims of crime in the province where the crime was committed. Bill C-37 increases these amounts significantly to 30%, in order to help victims. Thus the surcharge may be $100 instead of $50, $200 instead of $100, and so on.

The bill also changes another aspect of the surcharge. At the moment, an offender may be exempt from paying the surcharge if paying it would cause undue hardship to the offender or the offender's dependents.

Bill C-37 eliminates this aspect of the current law. It permits the offender to discharge the fine in whole or in part by earning credits for work performed. The official opposition welcomes this measure, since it provides an opportunity for offenders to become involved in their communities and make restitution for their offences.

Still, the uniform application of the law is significantly limited by the absence of such programs in Ontario and Newfoundland and Labrador. Through this measure, the bill aims to make criminals more accountable for their actions and especially to help the victims of crime. We agree completely with the principle.

However, we believe that there are significant social problems associated with crime and they deserve our attention. For example, 82% of the women in prison have been victims of physical or sexual abuse. That is not an excuse for crime, but it does explain certain aspects. Similarly, poverty often has an influence on the nature and type of crimes committed, and this fact cannot be ignored.

Certainly, the bill does assist victims, and we agree completely with that. Still, it is equally important to attack crime at it roots and rehabilitate the criminals, and the government's current policies ignore these aspects, despite the advice it has received from many experts.

Rather than making massive cuts to federal social programs, the government could have attacked crime at its roots. Rather than constructing prisons to accommodate greater repression under the Conservatives' most recent measures, Canada could have been attacking crime at its roots.

We supported this bill at second reading because we agreed with its principle, but we want to work on improving some of the measures.

We did express some reservations about enforcement and results.

We were particularly concerned that the law might not be enforced uniformly across Canada, especially with regard to victim compensation programs. The lack of a compensation program in Ontario and Newfoundland and Labrador, as noted in this bill, limits the extent to which the government's changes can be put into practice.

Thus, the consequences of a crime committed in Montreal would not be the same as if the same crime were committed in Toronto. We cannot create a law like this and find out that some of its elements are completely non-operational in some part of the country.

Therefore, the federal authorities must sit down with their provincial counterparts to make sure there is one justice system for everyone and not a two-tier system because of a lack of structure.

At the moment, the federal program for assistance to victims of crime has a budget of $16 million, but only $3 million is being used. Over 80% of the budget envelope is not being used. Once again, it is essential that the government not limit itself to the surface aspects alone. Once the legislative process is complete, it must really work on enforcement. It is important that the money be set aside for victims of crime, but it is even more important for the victims to actually benefit from that money.

Moreover, crime costs Canada about $70 billion a year, and 70% of that is borne by the victims. In that context, it is essential that the money raised through the surcharge really go to the victims and that additional funds be provided.

We agree completely with the Federal Ombudsman for Victims of Crime, who argues for increased funding of programs for this often-neglected group of people, who are directly affected by the Conservative government's budget cuts.

I also want to use this time to call upon the Canadian government to take inspiration form initiatives outside our borders. For example, the United Kingdom and other countries are developing a more evolved concept of restorative justice for victims and for offenders. It would be useful for the Conservatives to consider such ideas seriously as they develop their policies.

The ideas of mutual assistance, mediation between the parties, reparation of the damage caused and restitution would be stressed, for the good of both victims and ex-offenders. Why could we not take our justice system to another level, and go beyond mere technocratic logic?

In conclusion, we will be supporting Bill C-37. We believe that this measure is justified, that it responds to what the community wants and that it will help victims. However, we think it is essential that this government make sure that these measures are applied effectively. We cannot allow a law not to be fair to everyone, from one province to another.

We think the government has to explore other avenues, to develop a modern, proactive system that both promotes rehabilitation and supports victims. One thing is certain: we will be keeping a close eye on how Bill C-37 is administered, and we will continue to stand up both for victims and for rehabilitation of criminals.

Irwin Cotler Mount Royal, QC

Mr. Speaker, I am pleased to rise to speak to Bill C-37 and the question of the victim surcharge. If passed, this legislation will double the amount of the federal victim surcharge and will also remove the possibility of judicial discretion to waive the surcharge in cases where it will result in undue hardship on an offender or on his or her dependants.

I will begin by reiterating that everyone in the House supports the funding of victim services. There is no debate on this issue of indemnification. The policy question is how best to do so and even a cursory analysis of Bill C-37 reflects a deeply flawed policy approach that will have prejudicial fallout, particularly for the most vulnerable of Canadians.

Before addressing my particular concerns over the policy behind this legislation, I will make a brief mention of alternatives. The premise of the government at first with respect to this bill was that victim services needed increased funding from the federal government. We on this side of the House do not disagree. We support the direct funding of such efforts through grant making and the like. The issue is that the question, “should more money go to this?” is not the question that is before us now.

Just last week, the House voted on budget Bill C-45. Canadians may be interested to know that this legislation does not use the word “victim” even once. This is perhaps unsurprising since the budget speech did not use the word “victim” once. My point here is not to suggest that the government does not fund victim services. The point is that if the objective were truly to ensure adequate funding for such services, it would seem that the budget would be the most logical place in which to show support for this notion and through which to disburse funds on a matter that the Conservatives consistently characterize as a priority.

Regrettably, the government has not chosen to make direct funding of victim services part of its budget legislation. Instead, it has proposed to increase funding through the doubling of the surcharge amount.

Yet, as was noted at second reading, and as was further elucidated in the witness testimony before the Standing Committee on Justice and Human Rights, the doubling is not based on adequate consultations with relevant stakeholders and, in particular, provincial attorneys general. Indeed, the government has not provided any evidence-based foundation that the doubling of the surcharge is sufficient to provide sustainable services for victims of crime in all provinces and territories, which would be something that we would all seek to see.

During our first committee meeting, I raised this concern with the Minister of Justice, noting that when I was minister of justice in 2005, the then attorney general of Manitoba had recommended that the surcharge amount be raised from 15% of any fine imposed to 20%, an increase of only 5%. Recall that the bill before us today would double the surcharge amount in all cases. While I am well aware that circumstances can be expected to have changed since 2005, as has the attorney general of Manitoba, it seemed more than appropriate to ask the minister what input he had received from his provincial counterparts in this regard.

The minister did not provide specifics regarding amounts and percentages but did state, in response to a similar question from a colleague:

Again, I believe this will be well received. These funds will go straight into provincial coffers, straight into the programs they have to assist victims of crime. My prediction is that this will be very well received.

Mr. Speaker, the minister's projections, to paraphrase him, are not an adequate consultation process.

Did he raise this issue with his provincial counterparts? When did he discuss it with the Quebec justice minister? When did he raise it with Nunavut's justice minister?

There is no need to be minister or clairvoyant to understand that these two jurisdictions have different needs. What did the provincial ministers want to know? How are these differences reflected in the bill?

Let us be clear. We know there are disparities. For the year 2006, the most recent year for which such statistics are available, the actual revenue produced by the federal surcharge varied drastically by region, with Quebec taking in approximately $2.2 million in surcharge revenue and Ontario taking in approximately $1.2 million. How do we account for this? How would this legislation take this into account? Indeed, I am returning to my primary question here: How was the determination made to double the surcharge? What was the evidence-based foundation for this?

On this point, I recently received an email from the former ombudsman for victims of crime, Mr. Steve Sullivan, who expressed concern to me with regard to the committee testimony at the Standing Committee on Justice and Human Rights of Ms. Susan O'Sullivan, the current Federal Ombudsman for Victims of Crime.

Mr. Sullivan was troubled by Ms. O’Sullivan’s contention that her recommendation to double the surcharge amount was itself based on the recommendation of her predecessor Mr. Sullivan. However, Mr. Sullivan stressed that in 2009, during his tenure as ombudsman, he in fact recommended no such thing. Although at the time he supported removing the undue hardship defence, he stressed that he “thought then, as I do now, that it was not appropriate to double fines if judges were waiving fines because of their belief...that offenders could not pay existing fines”. I only raise this to correct the record on behalf of Mr. Sullivan.

At the risk of repeating a recurring theme that I addressed during second reading, the question was raised as to when we would next be back in Parliament to raise the surcharge again. Will this be an annual parliamentary occurrence? Perhaps some provinces view the amount received currently as being sufficient. Without adequate consultation on this legislation, there is no good way to predict, which the minister said hew as prepared to do so, just how soon we will be back here debating it again and whether or not it is having a beneficial impact in the way the government so envisages.

Beyond the problematic approach to legislating without accounting for the different needs of individual provinces and territories, this legislation is seriously flawed in its presupposition that the surcharge ought to be the primary funding source in the interests of victims. Simply put, the surcharge is only imposed upon conviction. The result is that in situations where no suspect is apprehended or where no conviction is obtained because of problems with the evidence, no surcharge will ever be imposed.

There is an example I have mentioned before, but I believe it bears repeating. One of the most common crimes in our country, sexual assault, is one of the least likely to result in a conviction. Indeed, in many cases of sexual assault charges are not even pressed for a variety of reasons, including that these victims are not necessarily comfortable facing their attacker in open court. In these instances, no surcharge will be collected. How does the government propose to help these victims of crime through the mandatory collection of a surcharge if there may never be a conviction secured.

Even if there had been adequate consultation with all provinces and territories and even if this were reflected in the legislation, there would still be good reason to oppose the bill given that it removes the judicial discretion of judges to consider the undue hardship that imposing the surcharge may have on individual defenders or their dependents. Indeed, this aspect of the bill is particularly problematic and counterproductive.

As was observed in witness testimony before our committee by Catherine Latimer of the John Howard Society, this change would result in harsh financial consequences for the many marginalized members of our society: the poor, the mentally ill and low income Canadians, as well as minorities such as aboriginal Canadians, who are already grossly represented within the criminal justice system itself.

The problem is that serious consequences, including incarceration, can result in the failure to pay a court-ordered fine or surcharge. Indeed, the injustice and inequity of a mandatory financial penalty, absent judicial discretion to waive it based on an inability to pay, is not just a matter of my own opinion or the opinion of some Canadians. Indeed, it is the opinion of the Supreme Court of Canada, which stated in the case of R. v. Wu, “it is irrational to imprison an offender who does not have the capacity to pay [a fine] on the basis that imprisonment will force [payment]”. In that case, the court further stated, “For the impecunious offenders...imprisonment in default of payment of a fine is not an alternative punishment — he or she does not have any real choice in the matter”.

This bill puts the most vulnerable Canadians in a situation where they may have to face incarceration, not because a court has deemed jail to be the proper punishment warranted by the offence for which they have been convicted, but only because they lack the financial resources to pay the mandatory surcharge. I submit that this is prejudicial and in violation of the law as defined by our nation's highest court.

Further anticipating the consequences of this bill if it were to be adopted, we can expect it to have a disparate impact on Canadians based on their province or territory of residence. Much was made during committee of the particulars of the provincial fine option program, to which I referred briefly earlier in my remarks. Regrettably, the discussion during committee regarding these programs was particularly insufficient and demonstrated a complete lack of understanding by the government in this matter.

The government has defended the removal of judicial discretion to waive the surcharge by arguing that those who are not able to pay can take advantage of provincial fine option programs that allow for the disposal of an individual's surcharge obligation through work or community service. However, as I am sure the members in this place are by now well aware, such programs do not exist in Ontario, British Columbia or Newfoundland and Labrador. Moreover, where they do exist, their availability and eligibility vary drastically.

I would hope that my colleagues in this place would need no explanation as to why I object to legislation that affects Canadians in a discriminatory manner based on where they happen to reside without any reasonable justification.

However, what is particularly troubling was the lack of concern by some of my colleagues during the committee process in this regard. Indeed, one member, noting that the fine option program was clearly a matter of provincial competency, conceded that this was not something the federal government could delve into and went on to observe that it was sufficient that any province could use the funds from the surcharge to implement such a program and that, where no such program exists, other means for enforcing the surcharge might exist.

This line of reasoning, regrettably, entirely misses the point. It is irresponsible for us to pass legislation based on predictions and presumptions about what could happen. Furthermore, the lack of consistency between the provinces and territories in this regard is precisely what would result in a differential prejudicial impact.

The bottom line is that, depending on the specific province or territory, low-income Canadians who are simply not able to meet a surcharge obligation will find themselves disproportionately burdened merely because of financial status and area of residence. Ultimately, one may find himself or herself subject to incarceration for circumstances entirely outside his or her control. I submit that this is prejudicial, inequitable and unacceptable in a free and democratic society.

To conclude my remarks, let me summarize the reasons for my opposition to this legislation.

First, the arbitrariness of the proposed doubling of the surcharge amount must be rejected. The needs of victims vary substantially, as I mentioned, between the provinces and territories.

Second, we must permit judicial discretion and enable judges to consider the specific facts before them, in particular, on the undue hardship that may result in specific instances on either the offender or on his or her dependants.

Third, there are problematic assumptions underlying the government's approach to criminal justice, which considers after-the-fact punitive measures to be an effective means of achieving deterrence, completely ignoring the importance of preventive measures and the need to consider the relationship in various complex social factors in so far as they contribute to both crime and victimization. Indeed, one critical factor that is undeniably related to the problem of crime and recidivism is a cycle of poverty and the marginalization of particular segments of our society. Regrettably, the bill, as it now stands before us, would only exacerbate this problem.

I would like to briefly describe the amendments that I offered at committee, all of which were proposed with the intention of achieving the shared goal of providing support for victims of crime in all provinces and territories and in an effective, sustainable and non-discriminatory fashion. Regrettably, all were rejected, but I believe they deserve discussion here particularly as they may be relevant to our colleagues in the other place during their deliberations in this matter.

My first amendment would have restored the undue hardship defence as it currently exists, but would have implemented a requirement that the court record its reasons for waiving the surcharge in writing. This amendment was directly aimed at improving the surcharge enforcement rate without improperly infringing on the judiciary's authority to consider all the facts before it in a particular instance.

My second amendment would have enabled the court in a jurisdiction where no fine option program existed to suspend the requirement to pay the surcharge based on a finding that the immediate enforcement of the surcharge would result in an undue hardship on the offender or his dependents. This amendment, in line with the Supreme Court decision, would have maintained the mandatory nature of the surcharge in all instances and merely would have enabled the court to suspend the requirement to pay. The surcharge obligation would indeed remain in the event that the individual's financial status should change. Moreover, this amendment would have limited the court's discretion to waive the surcharge to only those jurisdictions where no fine option program was available.

My third amendment would have specifically addressed what I submit should be one of the underlying purposes of criminal justice policy, namely, to prevent recidivism by achieving the rehabilitation of offenders. This amendment would have provided the court with authority to waive the surcharge only in those jurisdictions where no fine option program is available and based on a finding that the requirement to immediately pay would have a negative affect on an individual's rehabilitation. Again, the surcharge obligation would remain should an individual's circumstances change.

My final amendment was intended to codify the Supreme Court of Canada's decision in Regina v. Wu, so as to ensure that no Canadian would be subject to imprisonment based on an inability to pay. To be clear, this amendment would not have interfered with the court authority to order incarceration as part of an individual's sentence when so warranted by the specific facts of the case. This amendment would have ensured that neither an individual's financial situation nor the unavailability of a fine option program in a particular jurisdiction would result in incarceration. Put simply, this amendment would have avoided the prejudicial effect of Bill C-37 while preserving its underlying purpose. Despite the fact that this principle has been clarified by the Supreme Court, my amendment was voted down.

The committee process could have produced a version of this bill that accomplished the government's intention and what I am sure is the intention of all members in this place, to ensure the support of victims of crime without prejudicing any Canadians. Regrettably, we are here today to debate the same flawed version of this bill as was sent to committee. Thus, I must oppose the bill, as it is currently written, and urge all members in the House to do the same.

In conclusion, the most effective way to support victims of crime is to propose and promote legislation that prevents victimization in the first place, that seeks to achieve rehabilitation so as to prevent recidivism upon the inevitable return of offenders back into society. Regrettably, we have yet to see justice legislation from the government focusing on prevention, rehabilitation and reintegration, and Bill C-37 would accomplish no such thing. Despite my strong support for legislation that would fund victim services programs, this bill in its current form remains ineffective and will be counterproductive, discriminatory and prejudicial. I therefore will be voting against it.

Françoise Boivin Gatineau, QC

My colleagues are applauding, and I thank them on behalf of the victims. It has long been said that the New Democratic Party is not against victims, like it or not; it is on the contrary in favour of a fair, logical and intelligent system. However, sometimes that is not entirely the case with respect to the bills introduced by the present government. I would certainly not say that this bill is perfect, since it will occasion enormous disappointment. While we support it in its current form—it is difficult to be against virtue, as my mother would say—we do have some concerns: among other things, as to whether our colleagues opposite really listened to the 14 witnesses who testified before the committee.

I take this opportunity to digress in order to thank those who served on the committee studying this bill. It may not be the case with regard to Bill C-279, which did not end well and came to an extremely disappointing conclusion, but with respect to Bill C-37, solid work was done in committee. Some extremely worthwhile witnesses explained their concerns, and the issues they had experienced.

They also highlighted what the Parliamentary Secretary to the Minister of Justice explained to us just now: that in Canada, victims of crime are unfortunately left to themselves in many cases, in a manner that differs from province to province or from territory to territory. They often spend fortunes trying to obtain reparation, which they will never receive in full, and we are all very much aware of that. They will never obtain full reparation for the plain and simple reason that when you have been the victim of a rape, for example, or a family member has been killed or kidnapped, compensation is an impossibility. Nothing can compensate for a crime of that sort. There is simply no way to achieve it. It may be possible to offer help, but that is all, and that is what a bill like this tries to do.

There is a problem with the victim surcharge which has existed since it was established in the late 1980s. The Criminal Code takes the approach that a sum can be added to the sentence. We have now doubled that sum, but I will not talk about it, because enough people have done so, and others will do so. After all these years, moreover, I agree that it is not the end of the world. However, that has been the problem from the beginning, and that is why we agreed to refer the bill to committee, so that we could actually hear some witnesses on the subject.

My question concerns judicial discretion. My colleague, the member for Edmonton—Strathcona, posed the same question a short time ago. This is somewhat worrying, because the government is constantly withdrawing the discretionary component of judges’ authority. Nevertheless—I shall come back to this—I am reassured, not 100%, but rather 98%, because the Canadian judicial system will make up for Conservative mismanagement. That is more or less how I see it. It is sad to have to rely on the courts, but at the same time, the importance of victims weighed more heavily in the balance for me, and I believe the same is true of the NDP caucus and all members of this House.

However, I am not necessarily proud to see that Canadian judges have imposed a victim surcharge in only a very small percentage of cases since the system was introduced. And yet this system was designed to help victims. If it had been because the accused or the convicted individual was unable to pay, as the Criminal Code provided, that would have been different.

The burden of proof was on the accused, who therefore had to prove to the court that the surcharge was too much and that he was unable to pay it.

We would have had extraordinary statistics on the kind of individual who appears before our courts, but, no, the judges invariably did not impose it, and did so without explanation. That is where the problem started. The provinces expected to receive some revenue from the victim surcharge. That money goes into the provinces' victims of crime compensation funds, except in the three provinces that the Parliamentary Secretary to the Minister of Justice mentioned. One morning the provinces woke up and asked where the money from the victim surcharge was.

I also agree that this should not be the only fund. In 2003, we were told that the cost of victim damages represented approximately $70 billion. That is not peanuts. However, surcharges can only put a few hundreds million dollars in the coffers. We are still a long way off.

Victims must not imagine that this is a panacea. Passing Bill C-37 will not solve all the problems in Canada so the Conservative government, that great champion of Canadian victims, can suddenly wave around its Bill C-37. That is absolutely not enough, particularly since the vast majority of provinces and territories permitted what is called community service programs.

That is the other aspect that reminds me that some people in the correctional system are unable to pay this amount. Those inmates are unable to pay this kind of surcharge; the crime they committed has nothing to do with the argument I want to make.

The people from the Department of Justice told us that the decision in R. v. Wu would continue to be applied. According to that decision by the Supreme Court of Canada, no one may be imprisoned merely on the basis of inability to pay a fine. In that case, the system is okay.

However, once again I would like to shed some light on a problem with community service programs. Some groups that came to testify before the committee during consideration of the bill are convinced that, if this bill is passed, they will suddenly be able to get compensation for their damages. However, that will not happen. In the majority of cases, the offenders will not pay and will have to do community service.

As the parliamentary secretary noted, that suited some people, because they were asked whether they would be disappointed at not receiving money if the person went into a community service program. Community service programs are not just for people who have no money, but also for anyone who can do it that way. Everyone has access to those programs, provided a program is available in the region where the request is made. Some people, not everyone, said that they would prefer to have the money.

Let me take this opportunity to say that, rather than adopt victim surcharge systems such as these ones, perhaps this brilliant law-and-order Conservative government should get with the times and follow the example of various countries on this magnificent planet that are tending toward restorative justice

I see the member who introduced the bill on this matter and an example springs to mind. The case of a person who commits a crime by destroying national monuments is a very sad one. Which is harder for that person, paying $100 out of his pocket or appearing in front of a group of legion members and having to apologize?

Let me take a brief trip back to my childhood. When my parents punished me and sent me to my room, it made little difference to me. It gave me some peace and quiet. However, when my parents told me to go and apologize to the person I had offended, I admit that was the worst punishment for me because being compelled to admit you have made a mistake is, in a way, a form of humiliation.

Countries a little more in tune with the reality of what punishment should be, should head in that direction. They should make someone who has done something realize what he has done so that he does not do it again. The advice I have for the members opposite is to realize that always pulling out a stick and slapping people's hands does not accomplish much and that it is time to start considering other options.

All that to say that, in the context of Bill C-37, yes, it bothers me that judges are no longer granted this discretion. However, let me tell all my colleagues in this House, including my colleague from Saanich—Gulf Islands, that they were not using that discretion properly in any case. By that I mean that we have no idea why they granted an exemption to virtually everyone who appeared in court. It was as though the victim surcharge did not exist. To my mind, that is as intolerable as saying that a form of discretion is being taken away.

However, R. v. Wu has nevertheless had an impact. It is clear from our study in committee that the provinces and territories do not automatically impose a term of imprisonment because an individual does not pay, unless someone does it on purpose. Some will withhold driver's licences or documents from certain provinces. Some colleagues here will tell me that the most disadvantaged people we deal with do not have cars. I agree: they do not have cars, and we therefore cannot withhold their licence. However, they have other possessions that make it possible for us to make arrangements with them. The time is past when people were imprisoned for the fun of it, because they did not pay their fines.

I am repeating this because the message needs to be sent. We know that on Christmas Eve, the members opposite will be walking around saying that they have again saved the lives of X number of victims. I am disappointed to think that we have raised people's hopes and we are making them believe things that are not true. We cannot claim victory for the victims too quickly, because we have to be sure that the money that will be collected in the victim surcharge account is paid into the provincial and territorial accounts so it can be used and distributed to victims’ groups.

I do not have much time left, but still, I would like to take advantage of this opportunity. At the Standing Committee on Justice, we have seen just about everything. We are revamping Canada's criminal justice system, which prompts many different questions and leaves many of them unanswered. We do not have the time to conduct all of our studies in depth. With regard to Bill C-10, we will probably be told by the courts that it was all done much too quickly, in some respects. It is the government that will have to take the fall for this.

Regarding Bill C-37, I am reasonably satisfied just the same, as almost all of the witnesses we wanted to hear from were able to appear. Regarding the witnesses we were unable to hear, it was not because we were prevented from hearing them, but rather because they were not able to travel. I know that the bill is not perfect and that it poses the same problems for my colleagues in the Canadian Bar Association and the Barreau du Québec as it does for us. This is discouraging, because we have the time. There have been no changes for 30 years, and before any adjustments are made, sometimes it is worthwhile to spend a little more time and try to get it right.

I enjoy working with my colleague from Delta—Richmond East, the government's spokesperson on the committee. I enjoy our discussions and this new procedure, even though it was a bit of a flop last week, which I am going to say was because everyone was tired. I hope we all come back to the committee in an excellent mood.

I would like to urge everyone to support this bill for the victims. We in the NDP made promises. We have of course heard the recommendations from the Ombudsman for Victims of Crime. That was one of the planks in our platform during the last election campaign. We will present it better when we are in power in 2015. We will make sure to compensate the victims and fill in all the gaps in what is called justice in Canada.

I would like to end by thanking my NDP colleagues. I thank the deputy justice critic, my colleague from Toronto—Danforth, my colleague from Brome—Missisquoi and my colleague from Beauport—Limoilou for their excellent work on the committee. It was a huge endeavour, and their approach was serious and scrupulous, as required by this justice issue. Mr. Speaker, you know this file, because you were the justice critic for many long years and you mentored many of us here in the House. Frequently, on this issue, we try to rise above partisan politics, because people's lives are at stake and the issue is justice.

I would be remiss if I did not thank the people on the committee, as well as the committee clerk, Jean-François Pagé, and his assistants, and especially the people from the Library of Parliament, who often work in the shadows. We never say it often enough, but they do thorough, non-partisan work at the level of seasoned university researchers. Their work makes it possible for us to meet the various witnesses who come before us in committee and to be knowledgeable about the topic.

I encourage everyone who is interested in victim surcharges and the current programs in the various provinces and territories to read the two documents that were written for the study of Bill C-37.

I would of course like to thank the people on my team—I call them “Team Gatineau”—for all the support they have given me in 2012.

On that note, I would like to wish everyone happy holidays.

Robert Goguen Parliamentary Secretary to the Minister of Justice

Mr. Speaker, I am pleased to rise today for the third reading of Bill C-37, the increasing offenders' accountability act. The bill proposes amendments to the victim surcharge provisions of the Criminal Code, which would address longstanding issues with the operation of the victim surcharge.

I am also pleased to say that Bill C-37 was reported back to the Standing Committee on Justice and Human Rights without any amendments.

All members of the House who believe that responsibility for crime begins with the offenders who commit those crimes should applaud the reforms included in the bill. Bill C-37 is not a long bill, nor are the amendments it proposes overly technical or complicated. However, we must not be misled into thinking that the proposed amendments are not of vital importance. Indeed, Bill C-37 is a small bill that will have a big impact. It will have an impact on offenders, who will be held accountable for their actions, and it will have an impact on victims of crime who need services to help them recover from their victimization.

The current victim surcharge provisions in the Criminal Code have not met their intended goals. The requirement for an offender to pay a victim surcharge dates back to amendments made to the Criminal Code in 1988. Ten years later, amendments to those original provisions were proposed in the report of the Standing Committee on Justice and Human Rights entitled, “Victims' Rights—A Voice, Not a Veto”.

The government response to that report described the original victim surcharge provisions as having two goals. First was to make each offender accountable in a small way to victims of crime as a group. Second was to generate revenue for victim services. The government response to the committee's report also noted that the original victim surcharge provisions had fallen far short of expectations. The amendments to the victim surcharge provisions that followed in 2000 also failed to address problems with the operation of the victim surcharge. How do we know this? The victim surcharge is still not being applied in all appropriate cases and it is not generating the revenue that it should for victim services.

There are two very important consequences that flow from the problems with the victim surcharge provisions. The first is that offenders are not being held accountable for their actions. Currently, a sentencing court may exempt an offender from paying the victim surcharge if it will cause undue hardship to the offender or the offender's dependants. However, overly high waiver rates have revealed that the victim surcharge is not being imposed as it should. The victim surcharge is being routinely waived without the required supporting evidence showing that it would cause undue hardship to the offender or the offender's dependants.

The money from the victim surcharge is used by the province or territory where the offender is sentenced to fund services for victims of crime. This is how the first goal of holding offenders accountable to victims of crime as a group is intended to be met, by having each offender contribute a small amount to victim services in their province or territory. As many offenders are inappropriately exempted from paying the victim surcharge, it is clear that this goal is not being met.

The second consequence flowing from the problems with the current surcharge provisions is that revenues from the victim surcharge have never realized their potential. The provinces and territories have reported this problem since the victim surcharge provisions were first created. Therefore, we also know that the second goal of the victim surcharge, that of generating revenue for victim services, has not been met either.

This is why we introduced Bill C-37, to ensure that for the first time the victim surcharge would meet its goals. Bill C-37 would address the problems with the victim surcharge provisions in the Criminal Code in three ways. First, it would ensure that the victim surcharge is applied to all offenders by removing the ability of the sentencing court to waive the victim surcharge for undue hardship. This is a crucial step in reforming these provisions.

During the committee hearings for Bill C-37, a number of witnesses testified that they considered this to be the most important element of the bill. Why? If offenders are not required to pay the victim surcharge, then no amount of reform in this area will be able to effectively address the problems with these provisions. Therefore, the first step in ensuring that the victim surcharge makes offenders accountable and generates revenue for victim services is to make it mandatory in all cases without exception.

The second step taken by Bill C-37 is to provide alternatives for those offenders who are truly unable to pay the amount owing. The victim surcharge amounts are not high, however, we recognize that there will be cases where offenders simply will not be able to make the payment.

Currently, an offender may not discharge the victim surcharge through a fine option program. Bill C-37 would address this by allowing offenders who cannot pay the victim surcharge to discharge the amount owing by participating in provincial or territorial fine option programs. Providing this option for offenders is a reasonable alternative that would ensure the victim surcharge is applied in all cases while allowing offenders who are not able to pay the amount owing to demonstrate their accountability for the harm they have caused to victims by performing community services associated with fine option programs. This is a fitting compromise that meets the first goal of the victim surcharge.

These two proposed amendments of removing the court's ability to waive the victim surcharge and allowing offenders to discharge the victim surcharge through the fine option programs are companion amendments. They work together to make offenders accountable.

Victims' advocates who appeared before the Standing Committee on Justice and Human Rights on Bill C-37 gave their views on offenders participating in fine option programs in cases where the offender is unable to make contributions to victim services. All agree that this is a reasonable alternative for these offenders.

The third area of reform proposed by Bill C-37 is to double the amount of the victim surcharge. Currently, the victim surcharge is 15% of any fine imposed. Under Bill C-37, this amount would be raised to 30% of any fine imposed. In cases where an offender is not sentenced to pay a fine, Bill C-37 would double the victim surcharge from $50 to $100 for summary conviction offences and from $100 to $200 for indictable offences.

At first glance, it might appear that these elements of the bill serve only the second goal of the victim surcharge: to generate revenue for victim services. However, this is not the case. In fact, this reform would serve both the goals of the victim surcharge as it would make offenders accountable to victims as a group by ensuring that the offenders contribute meaningful amounts to victim services.

As I noted earlier, the victim surcharge has not been increased since 2000. Twelve years have passed since the last increase. Twelve years have passed with victim services not receiving the revenue they expected and needed. Twelve years have passed with victims not being able to access the range of services that they require because the funding simply was not available to expand those services to meet victims' needs.

Once again, I will refer to the testimony presented by the victims and the victims' advocates at the committee hearings for Bill C-37 because they said it best. They shared their first-hand experiences about the need for victim services and how unrealized victim surcharge revenues have affected the availability of those services.

We heard about victims who had gone into debt and remortgaged their homes in order to pay the cost of their victimization. We also heard about victims who hired specialized counselling to help them deal with the aftermath of crime, but who had to pay for those services themselves because these services were either unavailable or only available on a short-term basis under provincial-territorial victim service programs.

This testimony was not offered to lay blame on provincial-territorial victim service programs. We know that those programs are staffed with dedicated individuals who are committed to helping victims and who accomplish great things with the limited resources they have. This testimony was offered to illustrate the need for more resources so that victims would be able to access the help they need without going into debt.

The increases proposed by Bill C-37 are not extreme. These are not huge sums of money. For most offenders, they would be manageable amounts. However, for those offenders who cannot pay the victim surcharge, the fine option programs would be available to discharge the amount owing.

Despite the documented need for reforms to the victim surcharge provisions and the many benefits of the approach proposed by Bill C-37, questions have been raised about the potential impact of these amendments on impecunious offenders. In fact, it has been suggested that we did not consider this issue when developing Bill C-37.

As I noted earlier, Bill C-37 proposes to amend the Criminal Code to allow the victim surcharge to be satisfied through an offender's participation in a fine option program. Despite this, it has been suggested that removing the option of waiving the victim surcharge in cases where payment could cause undue hardship to the offender or the offender's dependants would result in the imprisonment of offenders who are unable to pay the victim surcharge. Some have gone so far as to suggest that the reforms in Bill C-37 would result in a return to the debtors' prisons of Dickensian times. This is simply not true.

Fine option programs exist in all but three provinces. Therefore, in the majority of cases, offenders who are unable to pay the victim surcharge would be able to avail themselves of a fine option program to discharge the amount owing. Fine option programs are not offered in Ontario, British Columbia or Newfoundland and Labrador. However, all three of these provinces offer alternative mechanisms for offenders who are unable to pay a fine in full at the time of its imposition. All of these mechanisms would be available to offenders who are unable to pay the victim surcharge.

For example, British Columbia offers an offender who is unable to pay a victim surcharge the ability to make an application to a judge to have it converted to a community service. In Newfoundland and Labrador, the fines administration division provides financial counselling to debtors. The division may either enter into a final payment agreement with the offender or the court may grant an extension of time to pay fines ordered if the offender is unable to pay immediately.

Other mechanisms, such as licence suspension or revocation, are available in all three provinces to encourage offenders to pay. I should also note that any sentencing court in Canada may order a payment plan or an extension of time to pay for an offender who is ordered to pay the victim surcharge. This has always been the case and it would not be changed by Bill C-37.

Bill C-37, therefore, would ensure that there are alternatives for offenders who cannot pay the victim surcharge and this would satisfy the first goal of the victim surcharge, which is to make offenders accountable in a small way to victims.

Finally, I will mention one last point made so eloquently by victims and victim advocates at the committee hearings for Bill C-37. They noted that, over the past 25 years, the potential undue harm to offenders who must pay the victim surcharge has received a great deal of consideration. However, no one has considered the undue harm to victims from the waiver and non-payment of the victim surcharge. Their point is significant and deserves our attention.

Victims need help in dealing with the aftermath of crime. Its effects are far-reaching and may last a lifetime. Victims, through no fault of their own, find themselves in a situation where they require services to put their lives back together. Those services are essential and they require appropriate funding. The victim surcharge is one way of adding to the funding provided by the provinces, the territories and the federal government.

Through the federal victims strategy, we provide $11.6 million annually through the victims fund for grants and contributions to create and enhance services for victims of crime. This government remains committed to holding offenders accountable for their actions and to assisting victims of crime.

Ensuring that offenders pay the victim surcharge as a way of demonstrating their accountability through contributions to victim services is one way to achieve this goal. It is a goal that is supported in Bill C-37 and which deserves the support of all members of this House.

I trust that all members agree that these reforms would further our collective goal of ensuring that the victim surcharge provisions finally reach their potential.

We have waited 25 years. Victims have waited 25 years. Let us not wait any longer. The time to hold offenders accountable is now. I hope we can count on the support of all members to ensure swift passage of this very important crime bill.

Ed Fast Abbotsford, BC

moved that Bill C-37, An Act to amend the Criminal Code be concurred in at report stage.