Bill C-37 (Historical)

Increasing Offenders' Accountability for Victims Act

An Act to amend the Criminal Code

This enactment amends the Criminal Code to change the rules concerning victim surcharges.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Bill C-37 amends the Criminal Code by, among other changes, repealing subsections 737(5) and 737(6). This amendment proposes to replace subsections 737(5) and 737(6) with text similar to the current Criminal Code text. The effect of the replacement would be to negate the repeal of the subsection.

As House of Commons Procedure and Practice, second edition states, on page 766:

An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.

In my opinion, the reinstatement of a key element being repealed is contrary to the principle of Bill C-37 and is therefore inadmissible.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Again, Bill C-37 amends the Criminal Code by, among other things, repealing subsections 737(5) and 737(6). This amendment proposes to replace subsections 737(5) and 737(6) with a text similar to the current Criminal Code text. The effect of the replacement would be to negate the repeal of the subsection. As House of Commons Procedure and Practice, second edition states, on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In my opinion, the reinstatement of a key element being repealed is contrary to the principle of Bill C-37 and is therefore inadmissible.

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes.

This one I think is not as directly opposite in scope. This amendment would agree with the collection of the surcharge and would suspend it only “if the court is satisfied that undue hardship to the offender or dependents of the offender would result from the payment of the victim surcharge” in provinces where a fine option or similar program is unavailable.

Simply put, Mr. Chairman—again, I'll be very brief—Bill C-37 seeks the mandatory application for the victim surcharge, which we are supporting, while removing an undue hardship defence. The amendment maintains the government's intent to impose the surcharge, but suspends its collection when undue hardship would result. We're not seeking to replace the undue hardship defence here. As such, it is supportive of the government's objective of recognizing the need for a surcharge and the related goal of denunciation, while at the same time allowing a court to consider the resulting financial hardship and ordering the immediate payment of the fine.

In other words, while much has been made of fine option programs, Mr. Chairman—and with this, I will conclude—we know that not every province has one. For example, we discussed Newfoundland and Labrador, B.C., Ontario, and the equivalent programs available may not be adequate in certain circumstances. The purpose of this amendment, simply put, allows offenders to make an application that they're in such a situation, and therefore in that situation the surcharge would be suspended.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Bill C-37 amends the Criminal Code by, among other things, repealing subsections 737(5) and 737(6). This amendment proposes to replace subsection 737(6) with a text that is similar to the current Criminal Code text. The effect of the replacement would be to negate the repeal of the subsection. As House of Commons Procedure and Practice, second edition states, on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In my opinion, the reinstatement of a key element being repealed is contrary to the principle of Bill C-37 and is therefore inadmissible.

[The Chair, Conservative, Dave MacKenzie]

We'll call the meeting back to order.

Before we begin the clause-by-clause, I think everybody has seen the project budget circulated for Bill C-37, and I need somebody to move the adoption.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and thank you to both witnesses. It's good to see you both again. Thank you for your interest in Bill C-37.

Ms. Pate, in your opening comment, you indicated that the Elizabeth Fry Society works with marginalized, victimized, institutionalized, and criminalized women. We might quibble over the definition of victim. When you were using the word “victim”, you were talking about women who have been treated poorly by the economy or by their family circumstance; you were not talking about victims of crime, necessarily, when you spoke about women who have been victimized. Or did I misunderstand you?

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

Let me begin with Ms. Pate. You mention that the cost of incarceration at the federal level was approximately $350,000 per year. There's a variation at the provincial level, between $30,000 and $200,000 per year.

My question is this. Why is there such a difference? Why the variation? More importantly, what are the cost impacts of Bill C-37 in terms of incarceration of those imprisoned for failure to pay?

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I want to thank our two witnesses for being here during our final hour of analysis and study of Bill C-37.

There are a few facts I would like to check. You may not be aware of certain comments that were made about you at our last hearing, this past Tuesday. I want to come back to them, because I really don't like it when the discussion focuses on people who aren't there.

Ms. Pate, I would like to know if you have ever been the chair or director of the John Howard Society.

[Sharon Rosenfeldt, President, Victims of Violence]

Thank you very much. Thank you for inviting our organization, Victims of Violence, to appear today on Bill C-37, An Act to amend the Criminal Code, on victim fine surcharges.

I will briefly tell you about our organization—only half of it.

Our mission is to promote a more balanced justice system through legislative action and public awareness. Victims of Violence was founded in 1984 to provide support and assistance to victims of violent crime, to advance the rights of crime victims, and to enhance the safety of all law-abiding Canadians by addressing problems in Canada's criminal justice system.

We are appearing here today in support of Bill C-37. We agree that doubling of the victim fine surcharge and making it mandatory is crucial to the provision of victim services across Canada. Twenty-five years ago the concept of rights for crime victims was not widely recognized by either the justice system or the general public. Within a growing movement consisting of a group of determined individuals made up of victims of crime and associated professionals, the movement began advancing the vision of a system that would acknowledge and protect not only the rights of the accused but also those of the victim.

Great progress has been made since then. But progress does not come without challenges. While it is clear that there is an increased need for victim services across Canada, allocations from the victim fine surcharge have steadily decreased over the past number of years. Today the government recognizes this dilemma, and steps are being taken with the proposed amendments in Bill C-37 to restore allocation levels.

It is our opinion that the need for victim services has increased because the past 25 years have seen such a growth in understanding of crime victims' rights and services and of the network of crime victim advocates, service providers, and associated professionals who work to restore a sense of normalcy to victims' lives that crime victims are today more aware of services and seek to use them. Unfortunately, violent crime is a fact of life, and there continues to be a need for increased public awareness of the dynamics of crime. Attention must be paid to the fact that crime is not just a violation of a criminal code, but it also causes harm to victims, including economic loss, emotional suffering, and physical and mental injury.

I wish to bring the committee's attention to an issue that does not seem to get enough attention when we are discussing issues affecting crime victims. The cost of violent and serious crime consists not only of taxpayers' dollars but of the loss of human life, loss of family, loss of law and order, and loss of faith in the criminal justice system.

In 2008 the Department of Justice released a report that estimated the costs of crime. The report stated that the tangible costs of crime—including police, court, corrections, health care, victim costs, etc.—were approximately $31.4 billion, while the intangible costs of pain and suffering, loss of life, etc., were more than double that, at a whopping $68.2 billion.

We would therefore like to ask the committee to take into consideration the costs that crime has had on victims, primarily in three areas: one, in drawing comparisons about whether convicted offenders can afford to pay the fine surcharge or not; two, in deciding whether or not the new amendments to Bill C-37 should be made mandatory; and three, in determining why some question that the new amendments will take away a judge's discretion.

Further, we would submit to the committee that you should consider recognizing that the victim fine surcharge is a major source of funding for victim services throughout Canada. The surcharge is unique in that it is composed primarily of fines from convicted offenders, making it a self-sufficient source of support that does not rely on Canadian tax dollars to carry out its work. We feel that by way of the victim fine surcharge, those who cause victims suffering contribute to alleviating their pain and helping them rebuild their lives.

That said, we wish to touch on a few challenges that we see. The victim fine surcharge legislation has now been in place for 24 years, and we find that there is very much disparity across the provinces as to how the provinces use the victim fine surcharge funds. It is our humble opinion that there is seemingly no transparency. To date, and to our knowledge, there has never been adequate research study done on the use of the victim fine surcharge funds in all provinces, with the exception of four—New Brunswick, B.C., Ontario, and Saskatchewan.

We would therefore suggest a review of provincial practices by the federal government, possibly done by the Office of the Federal Ombudsman. A result of this study could potentially lead to a legislative requirement for something akin to the Victims' Justice Fund, which is generated by the victim fine surcharge in Ontario and which compels the money to be used only for victim assistance use, with maybe a requirement of an annual report on the use of those funds.

We understand that this suggestion would be considered somewhat controversial, if not impossible, since the victim fund surcharge is federal legislation and it is left to the discretion of the provinces to deliver victim services in the manner that they deem appropriate.

In closing, I wish to thank the government for the proposed amendments to the victim fine surcharge as stated in Bill C-37, which we support. I also thank the committee on behalf of Victims of Violence for the opportunity to not only voice our support, but to listen to our concerns as well.

Thank you.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

It would be my pleasure. Thank you.

Thank you very much for inviting the Canadian Association of Elizabeth Fry Societies to present to you. I'm happy to be here with a long-time colleague and friend, Sharon. We've known each other since Alberta days.

I also want to say that I come, as you know, representing an organization that works with marginalized, victimized, criminalized, and institutionalized women and girls.

I will cut right to the chase on this. We have two concerns with Bill C-37.

One is that we know women form the fastest-growing prison population. The majority of them are in prison for poverty-related offences: they have tried to negotiate poverty. Our significant concern is that Bill C-37 will only exacerbate that issue, particularly when you're talking about women who are single moms. The majority of the women in prison are single moms, and most were the sole supports for their children before they went to prison, women trying to support themselves and their children living in poverty.

The reality of having a mandatory surcharge also flies in the face of the Wu decision of the Supreme Court of Canada in 2003, which clearly said that it is certainly appropriate, in a situation in which a default of payment of a fine—and by extension a victim surcharge—occurs because someone chooses not to pay, to be looking then at the potential for a far more serious penalty, but that a genuine inability to pay a fine should not be a proper basis for imprisonment. By extension, the same argument would apply similarly to a victim surcharge.

So we would encourage you to reconsider this and to allow there to be judicial discretion to examine the ability to pay, rather than see us end up defaulting to a situation we have been in, and to which arguably we're heading with many women in the prison system, such that we end up with prison essentially being debtors' prison, where people are put because they cannot afford to pay the penalty, and not because of an unwillingness to pay the penalty or to pay a victim surcharge.

When we know that the majority of the women—91% of the indigenous women in prison, 82% of women overall—have histories of physical and/or sexual abuse, talking about a victim surcharge to assist victims, when these women end up in custody largely because of the lack of resources in such other parts of the community as social services and health care, particularly mental health care, seems highly.... I would suggest there will be some section 15 and some human rights challenges.

But also, it seems morally problematic to be talking about more individuals being in prison, largely because they can't pay, at a huge cost to the Canadian government. The Parliamentary Budget Officer has estimated that it costs $343,000 per year to keep one woman in federal custody, and provinces range, depending on the range of services and what is costed in, from a minimum of $30,000 of cost up to in excess of $200,000. When we're talking about those kinds of costs, to jail someone for non-payment of either a fine or a victim surcharge seems counterproductive at best.

We would respectfully urge you to look at either not passing the legislation or, in the alternative, amending it to ensure that the provision of failure to pay....

We would also urge that you seek an accounting from the provinces and territories as to how they're spending their victim surcharge moneys now. My understanding is, and the background legislative summary for this prepared by the Library of Parliament indicates, that it seems unclear which provinces and territories actually are requesting the money. It's certain that some are requesting increases in victim surcharges, but what is very unclear is how that money is currently being spent. It strikes me that it behooves all members to know where that money is going and how it's being spent before we start imposing more fines that will likely cost taxpayers even more money and arguably will not assist victims, if in fact these resources are not going to the sorts of supports that will prevent people from being victimized in the first place and not necessarily to providing direct services in the second place.

Thank you very much.

[The Chair, Conservative, Dave MacKenzie]

Seeing that the time is 3:30, we'll begin the meeting. This is meeting number 49 of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of Tuesday, October 16, 2012, we are examining Bill C-37, An Act to amend the Criminal Code.

We have two witnesses before us today. We have Kim Pate, the executive director of the Canadian Association of Elizabeth Fry Societies, and Sharon Rosenfeldt, from Victims of Violence. I know both of these witnesses have appeared before committees before, and I think you know how we operate.

If you have an opening address, Ms. Pate, and if you would like to go first, you're first on our list.

[Dr. Irvin Waller]

Well, I'm not the politician, but I certainly watch what goes on in other countries. What I've heard from the current government is that they want to champion victim rights. My assumption is that this is one step and that they will in fact look at what they can do to bring prevention, services, and rights for victims up to international standards.

The neat thing about 2012 is that the European Union has just shown that you can have standards across countries—27 countries—and I think this is a very useful document to look at. We also have more than 20 years of legislation in the United States, including the Justice for All Act, a very important initiative in 2004. I think we're in the rather wonderful position that we can look at and learn from other countries.

My main concern would be not that they will not follow through on services and rights and in providing leadership and help to the provinces, but that they will not balance these with the sorts of prevention we need. I think we're going to see the provinces moving on prevention, but the federal government, in my view, has to put its money where its mouth is.

If you look at the Victims of Crime Act of 1984, you see $1 billion put into not just services but also into compensation in the United States. I think this shows what can be done.

The McMurtry report's evaluation in Ontario talked about the importance of the victim being informed. It also talked—and this is a really important point, to me—about evaluating whether we're meeting the needs. In this country, if we're going catch up with other countries, we have to begin to look at whether what we're doing for victims actually meets the needs.

I don't want to slow down Bill C-37, because you don't need legislation to evaluate the needs. In the budget, the $16 million or whatever it is that the federal government spends on victims is seriously peanuts. They should be putting money into looking at the gaps between services and needs, in collaboration with the provinces. These are all things that have been recommended. It's a question of action.

[Catherine Latimer]

We're not pitted against Bill C-37. We're pitted against the removal of the judicial discretion to not impose the victim surcharge if the person is unable to pay. That's a fairly fundamental principle of justice that has been reflected in fine provisions, that's embedded in the Criminal Code, and that have been reinforced by the Supreme Court in the decision of R. v. Topp.

You can't get blood from a stone. If you try to get resources from people who do not have the resources or are unable to participate in the alternative, which is the fine option program, you're going to end up putting in jail the people who are unable to pay. You're going to end up with a new form of debtors' prison and the John Howard Society certainly does not support that.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Well, this is by no means an omnibus bill. I don't think there are very many clauses. I'm wondering if it's reasonable to say that for a reasonable bill initiative like Bill C-37, regardless of how reasonable it is, wouldn't the John Howard Society be pitted against it?

[Dr. Irvin Waller, President, International Organization for Victim Assistance]

I'm the president of the International Organization for Victim Assistance. I have been working to get services and rights for victims for some 40 years and I have recognition in the United States and a number of other countries for my work. I've recently done a book, which actually was written for the people around this table, called Rights for Victims of Crime: Rebalancing Justice.

In relation to Bill C-37, this book says we should be paying for services for victims out of general revenue; that's where we pay for most other services. However, I'm a pragmatist, and any progress to help victims is worth it. I've been an advocate—a reticent advocate—for fine surcharges since they were first introduced in the U.S. in the seventies and early eighties and when they came to this country in 1989.

I think Bill C-37, with the doubling of fine surcharges, is a reasonable step to take. However, I think it's extremely important to see that Canada is way behind other countries in terms of what it does for victims, and we should not confuse a doubling of the fine surcharge with a genuine strategy to meet the needs of victims.

The $83 billion in harm for victims is totally inexcusable in a country like Canada; that's the data used by the Prime Minister's Office earlier this year, or maybe late last year. The fact of 440,000 violent crimes known to the police is totally inexcusable in a country of this wealth. Also, totally inexcusable are the 1.3 million property offences known to police.

The most inexcusable statistic used by the Prime Minister's Office is that only 69% of victims in this country go to the police. These are third world statistics. Once you begin to provide services for victims, once you begin to get police providing information to victims, and once you get some sort of reasonably coherent system of criminal injuries compensation, you can expect more victims to go to the police. I think that's what you see from looking at other countries.

Just to back up what you see in other countries, let's go to the United States for a moment and see what they did with victim fine surcharges. They didn't just go after the small-time offenders. They went after big corporations. They actually raised more than a billion dollars a year out of the Victims of Crime Act that dates from 1984. These are fines on major corporations that have cheated in some way.

I'm concerned that while we double these sorts of fine surcharges, we make sure that our courts and the regulations are such that we can see, maybe not billion-dollar fines, but a hundred-million-dollar fines here, and I think this will enable us to have, from coast to coast, the sorts of services we need.

Let me take you for a moment to the European Union. They recently adopted a directive that applies to 27 countries—not 10 provinces, but 27 countries—where the inhabitants don't even speak the same language, and 75 million victims in an area of 500 million people will now have guaranteed access to victim services.

This will not guarantee access to victim services for victims in this country. We should be making sure this happens. If the European Union can do it, then we can do it.

The Prime Minister of the United Kingdom recently said that prevention is the most effective and most cost-effective way of dealing with crime and everything else is picking up the pieces. Well, guess what? The United Kingdom just recently introduced a restorative justice procedure across the whole of England and Wales. They've done this because the evidence shows that victims are much more satisfied with restorative justice, and it's an effective way of reducing recidivism.

My plea here is, yes, go ahead with this legislation, but let's get a bipartisan, tripartisan piece of legislation. Every year I give a speech to the bipartisan caucus of the U.S. Congress. This does not have to be a political game. This is something that all sides of the House can agree on.

Let's get a real action plan that is actually going to reduce the number of victims significantly and that is actually going to provide services to all those victims who need it. It's not that costly in a country like this. It's going to ensure that police forces give information—including the RCMP, who are controlled by a federal act—that we get a much greater participation of victims in the process, and that we get a real, genuine policy to reduce that $83 billion.

We, in the next five years, with leadership from the federal level, could reduce those statistics on violence and property crime, including those who don't go to the police, by 40% to 50%, for a percentage of what we are currently spending on reacting. We need to do that. That's what a genuine policy that is going after the needs of victims would be about that.

Thank you.