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.

Increasing Offenders' Accountability for Victims Act

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, Bill C-37 proposes to amend the Criminal Code provisions concerning victim surcharges in order to double the amount offenders must pay when sentenced, and to make the surcharge mandatory for all offenders. I have concerns about that. Therefore, I will be voting to send the bill to committee.

I have a concern about the surcharge. I would like my colleague, who gave a fine presentation, to tell me about the discrepancy that will arise between the nature of the crimes committed and the surcharge imposed.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, it is always an honour for me to address the House.

On May 17, 2012, the government introduced Bill C-37, which amends the Criminal Code provisions on victim surcharges as currently set out in section 737.

I have listened to many of the speeches given by my colleagues on both sides of the House, but mainly on this side, since few government members have spoken about this bill. I trust the judgment of my hon. colleague from Gatineau, who was the first to say that we would be supporting this bill at second reading. I also respect her legal experience. For my part, I worked for quite some time as a special constable, for I have always had a special interest in saving lives and keeping the people in my community safe.

At the beginning of this Parliament, I was our party's public safety critic. I care deeply about the safety of my fellow citizens. Now while debating this bill, it is our duty as legislators to ensure that victims of crime have the support they need.

Many people here have pointed out the lack of funding for programs and services offered to victims, and like my colleague, I am very concerned about this. That is why I will vote in favour of this bill, for we in the NDP support many of the recommendations made by the ombudsman for victims of crime, many of which are addressed in this bill. Furthermore, we have always supported increased funding for programs and services offered to victims of crime.

Bill C-37 amends the Criminal Code sections dealing with victim surcharges. A victim surcharge is an additional penalty imposed on offenders at the time of sentencing after they have been convicted of an indictable offence. This bill doubles the amount of victim surcharges and makes them mandatory for all offenders.

The surcharge would be the equivalent of 30% of any fine imposed on the offender at sentencing. Currently, the surcharge is 15%. If a judge does not impose a fine with the sentence or if no fine applies, then the surcharge would be $100 for summary offences and $200 for indictable offences.

Judges will be able to impose a higher victim surcharge if circumstances warrant and if the offender has the means to pay it. This provision is interesting because it leaves room to adjust the fine, but especially because it gives judges discretionary power in cases where this might apply. These fines will be collected by the provincial and territorial governments and allotted to the programs and services for victims of crime. These fines are not supposed to end up in the consolidated fund of any province or territory. We must ensure that this will indeed be the case.

A number of my colleagues have also mentioned that the programs and services are severely underfunded and that the precarious finances of these organizations often jeopardize the success of their mission. Crimes have considerable socio-economic repercussions on victims, including funeral costs, the need for psychological counselling and lost revenue. There are many repercussions for the families of victims of crime.

The statistics say it all. In 2003, crime cost roughly $70 billion, $47 billion of which was assumed by the victims. In other words, the victims assumed 70% of the cost. In 2004, a study estimated that the pain and suffering of the victims was in the neighbourhood of $36 billion. That is huge and, unfortunately, the victim surcharge is not going to fully cover this cost, but it will help.

Did the government do its homework and use the best possible tool for maximizing the funding for these organizations? That remains to be seen, and I hope we can determine that when we study the bill in committee.

This bill could contribute to funding these organizations and if that is the case, then I am most pleased. If it also—although I have my doubts—helps make an offender accountable and prevents recidivism, then just like the government, I will be very happy. But make no mistake, this is not a magic solution. The provisions in Bill C-37 will not solve all the problems, but they will be another good tool to help provide funding to the organizations.

We should not, however, expect that the impact of this bill will be significant enough to dissuade a person from committing a crime, as some members mentioned in their remarks.

This is where policies and programs on crime prevention and offender accountability come into play. Since the beginning of this parliament, the Conservatives have introduced many justice bills involving mandatory minimum sentences. Yet, they have done very little in the way of crime prevention and offender rehabilitation.

That is why, when I was a member of the Standing Committee on Public Safety, I endorsed a balanced approach to crime and rehabilitation, as did my other colleagues. It is important to invest in prevention and rehabilitation in order to minimize the chances of people committing a first offence or reoffending. We must not focus all our efforts on punishment. The Conservative Party's vision of this concept is rather shameful.

For the Conservatives, punishment solves all problems. There are so many factors that lead to crime that we must take a multi-faceted approach to dealing with it. Poverty, unemployment, inadequate housing and low levels of education are all factors that contribute to a rise in crime. A preventive approach must address all these problems in order to achieve effective results.

It is also important to have intelligent corrections legislation and policies accompanied by rehabilitation programs that help to reduce recidivism. It is everyone's duty, as a community, to help victims of crime and to do everything possible to prevent people from becoming victims of crime.

The bill also contains provisions regarding offenders who are unable to pay the fine. Under Bill C-37, these people can participate in a provincial fine option program. These programs allow offenders to pay their debts by earning credits for work done in the province or territory where they committed their crime. I think this is a worthwhile approach because it could get offenders involved in their communities and make them feel accountable, which will greatly contribute to their rehabilitation.

However, the government will have to regulate these programs, since they must be fair and equitable, in light of the sentence, and must be standardized across Canada. I hope the government has done its homework, and we will be able to check that once the bill is sent to the Standing Committee on Justice and Human Rights. We must not blindly rush into this, since these programs do not currently exist in all the provinces and territories. What happens when a program does not exist? This is a legitimate question that my colleague raised during the first debate.

If a province must create a new program, it will require funding to do so, and once again, like with Bill C-10, the government may end up passing the bill on to the provinces. Has the government consulted the provinces about this? Will the provinces once again be on the hook for financing the government's crime agenda? I would like a clear answer to that question.

The bill will eliminate the court's ability to exempt the mandatory surcharge if undue hardship to the offender or the dependants of the offender would result from payment of the surcharge. I have some concerns about this provision. The bill indicates, in order of priority, the debts that the offender will have to pay, and support payments are at the top of the list.

In conclusion, like my colleagues, I have a number of concerns about Bill C-37, but I support the spirit of the bill and some provisions that deserve to be studied more carefully in committee. A number of the questions we asked the government have not yet been answered, and we think that they deserve to be discussed in committee. We must talk about the proposed elimination of the judge's discretionary power to decide whether paying a surcharge would cause undue hardship to the offender or dependants of the offender. I think that discretionary powers for judges are very important and that we must protect their autonomy.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I would like to thank my riding neighbour for his speech on Bill C-37. I have a specific question to ask him. We talk a lot about judges' discretionary power, but I would like to address another matter Senator Boisvenu raised with respect to the bill, when he presented it to Canadians. According to his comments, increasing the victim surcharge will be a deterrent to crime.

Can my colleague comment on the statement the senator made when introducing the bill?

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I am going to support Bill C-37 so that it can be referred to committee. This bill proposes amendments to the provisions of the Criminal Code on victim surcharges, including subsection 737, in order to double the amount that offenders have to pay when they are sentenced, and to make the surcharge mandatory for all offenders. The surcharge is imposed at the time of sentencing for guilty offenders. It is used to finance crime victims programs and services in the province or territory where the crime was committed.

The Criminal Code requires that a judge impose a victim surcharge in all cases, but the judge also has discretionary power to waive it if the offender can demonstrate that it would cause undue hardship to him or his dependants. If the court decides not to impose a federal surcharge, a rationale has to be provided for the decision and the reasons have to be entered into the court record of deliberations. I am in favour of enhanced funding for victims programs.

On the surcharge for victims, I have some statistics. On May 27, 2010, 729 victim service agencies in Canada reported serving nearly 9,500 clients on that day. It is worth noting that three-quarters of them were women. Of those victims who received services, 81% said that they had been a victim of a violent crime.

In 2009-10, the most frequent types of assistance provided directly by victim services providers in Quebec included court-related guidance or information, courtroom assistance, information about the process and structure of the criminal justice system, preparing victims or witnesses, and assistance in compensation claims.

It is clear that helping victims of crime is costly and that we need to devote more to those who are suffering after a violent crime or any crime that has been done to them or to their family.

Although I support the essence of this bill and I agree that a larger levy on victims' service is, in general, a good idea as it would help us contribute more to victims, I do have some concerns and I hope the committee will closely examine this bill. For instance, the provincial programs that would be funded by this increased surcharge are essential and they need the support. There are not enough victim support services in the provinces. People who are the victims of crime often require psychological and social support during and after the legal process. Therefore, I approve of this. It is quite appropriate that those who commit the crimes be forced to invest in the programming that would help heal, not only for specific victims but for those who are similarly in need.

I call attention to the fact that the most glaring example of an underserviced demographic of victims is the families of missing and murdered aboriginal women. Yesterday, Ottawa had a strong show of solidarity with the families who have lost daughters, mothers, sisters and wives to horrible violence and unsolved disappearances. A hard-working group called Families of Sisters in Spirit organized a massive vigil on Parliament Hill yesterday. Its message was very strong and clear. Hundreds of women who have been taken will not be forgotten and the families and allies will not rest until the government recognizes its responsibility to these victims and to aboriginal women across the country who remain in danger.

Some of the saddest stories we heard on the Hill yesterday were about cases where crimes were not thoroughly investigated for months and sometimes years and where the victims of crime had to take it upon themselves to investigate the disappearances of their own loved ones because they could not get access to the services they needed. One of the repercussions of this phenomenon of disproportionately unsolved murders is that the families were told that they could not receive the victim services until the cases were solved. If no one is solving the cases, then, unfortunately, these families are left to themselves entirely.

When it comes to aboriginal women, it is not just the victims of kidnapping and murder who badly need the victim services. It is for the families and communities that we really need to invest in prevention. An aboriginal woman is five times as likely as a non-aboriginal woman to be the victim of a violent crime. This is mostly due to extreme rates of poverty. Over 40% of aboriginal women are living below the poverty line. These women have a shameful lack of access to police services, legal services, shelter and psychiatrists, let alone provincial victim services.

We do need better and more effective victims' services. If we can do something in this House to increase those kinds of services to those who need it, we especially need to think about increased funding to first nations, Métis and Inuit communities for those both on and off reserve.

This bill would make it impossible for a court to order that no victim surcharge be imposed on an offender when it is demonstrated that the payment of such a surcharge would cause the offender—or his dependants—undue hardship. Currently, judges have discretionary power to order the payment of a higher surcharge or to waive such a surcharge.

We on this side of the House have one concern and that is the power of judicial discretion. This discretionary power allows judges to waive the surcharge for criminals to whom it would cause undue harm or cause undue harm to their families. This is important for people who have committed crimes and are very poor.

Poverty is often the root cause of crime and financially crippling a person on top of sentencing them could make rehabilitation impossible. It could also make it difficult for their children to properly integrate into society and so on. With respect to the withdrawal of the clause on undue hardship and the provision seeking to double the surcharge amount, this would be problematic for low income offenders.

I will share with the House some statistics about who a lot of these people are. Eighty per cent of all federally sentenced women report having been physically or sexually abused. This rises to 90% when we are talking about aboriginal women. Two-thirds of federally sentenced women are mothers and they are more likely than men to have primary child care responsibilities. There are about 25,000 children whose mothers are either in federal prisons or provincial jails, and that was as of last year. Separation from their children and the inability to deal with problems concerning them are major anxieties for women in prison. If poverty is a contributing factor, then we can imagine the situation facing these families.

Women who have been in prison also have much lower employment rates than men who have been incarcerated. Not only do women experience more poverty than men but most criminalized women have low levels of education, limited employment and economic records and usually live alone in extremely poor housing conditions. In the Prairie region, most of the women in prison are indigenous. They represent 85% of the female prison population.

As I said earlier, these are people who are living in poverty and do not have access to social services. They also lack access to health care and education.

The issue of judicial discretion needs to be examined more closely. If it is used often, we may need to look at more prevention. We may need to look at providing more help to those on the ground who are living in poverty and may end up becoming criminals in the future. We really do need to be concentrating more on prevention.

I will be voting to send the bill to committee in order to examine it further because I agree that we should be funding more services for victims.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, I would like to thank my colleagues, who contributed a well-informed and different point of view to fuel debate on Bill C-37, the Increasing Offenders’ Accountability for Victims Act.

Let us review the provisions of Bill C-37, which have been discussed at considerable length already. The bill proposes to amend provisions of the Criminal Code concerning victim surcharges in order to double the amount offenders must pay when they are sentenced. The bill also makes the surcharge mandatory for offenders.

This morning, we heard a moving account from the member for Vaudreuil Soulanges, and it made a deep impression on me. Unfortunately, in discussing this bill, we are also talking about victims. It cannot be avoided, because victims are the ones who are the most affected and who suffer the most from such events.

We heard the account by the member for Vaudreuil-Soulanges this morning, and I would like to add something else.

Yesterday evening, I was having supper with my family, who told me that bus drivers are often assaulted. Someone this happened to personally told me that a person had got on the bus and punched them in the face. The person in question was simply angry because the bus did not pull up to the stop quickly enough, which sometimes happens when a car is in the way, for example.

There have been several assaults of this kind in our province. Bus drivers are attacked at the end of their shift. These people feel powerless, as the member for Vaudreuil-Soulanges demonstrated clearly this morning.

People feel powerless when they are attacked, first of all because they do not expect things like that to happen to them. People also do not expect offenders to do things like that, because it is not part of our upbringing to be assaulted and to have to be on the defensive. People believe they live in a safe country.

This bill proposes to amend Criminal Code provisions in order to double the victim surcharge. Needless to say, we support this. The surcharge would increase to 30% from 15% of any fine imposed on the offender. Where no fine is imposed, the surcharge would be $100, up from $50, for summary conviction offences. It would increase from $100 to $200 for indictable offences. This section is somewhat complex, but in short, the fines are being doubled.

These amounts are significant. Particularly as those who receive them to assist victims are often community groups. In Quebec, they are called Centres d'aide aux victimes d'actes criminels, or CAVACs, and there are equivalent centres across Canada. They are often groups that intervene to provide assistance to victims.

People often do not know that such a system exists and that they can contact a CAVAC if they are victims of a crime.

The CAVACs are funded as follows. They receive funds that are generated in part by offenders, and contribute them towards the activities conducted by groups that provide assistance to victims of crime.

The NDP members will be supporting this bill, but they have reservations. They would like it to be re-examined in committee, simply because judges are not being allowed to impose sentences that may vary, as needed and depending on the person before them. Once again, this is something that comes up in many of the bills I have seen recently in the House.

Many offenders live in poverty. These are criminal groups or individuals with records. In some cases mental illness is involved, but not necessarily. For example, these people may be dropouts who have lived on the street with nothing and who systematically resist integrating into our society, because it does not suit their values. They want something different and they want to make their own laws.

We must intervene and educate them; this is important.

I would like to remind the House of something. In 2003, crime cost about $70 billion, $47 billion of which was borne by victims. That figure represents 70% of the total cost. A 2004 study estimated that the cost of the pain and suffering suffered by victims was in the region of $36 billion. It is truly important to understand the victims, and the NDP will continue to support families in this regard.

Many eligible victims very rarely seek compensation, one reason being that they do not know these services exist. The member for Vaudreuil—Soulanges said this again this morning. He did not know that there might be a system like that. The system also helps to reassure the victim and lets them know these measures exist and sometimes helps them cover various expenses. When a person is a victim of violence, they are scared, they do not take the same routes they used to, they are afraid to get on the bus or go out in a car, afraid of being accosted even when they are walking on the street, and so on. We have to offer these people services, and that has a social cost. Often, the victims do not even think of asking for anything.

Our concerns relate to the elimination of the judge’s discretion to decide whether paying a surcharge would cause undue hardship. In Quebec, and I imagine things are the same in the other provinces, although I have not checked, judges sometimes decide to require a person to do community service when they do not have the means to pay the surcharge in question. These surcharges are important, because they largely fund the assistance provided for victims. They may even cover up to 100%.

Sometimes, when a person is unable to pay the surcharge, they are required to perform community service. It must be open to the judge, at their discretion, to decide that the young person in question will have to approach a community group, and the group will have them do painting, wash windows, and so on. An entire system is in place to help the young person. I say “young person” because young people are often the ones on whom surcharges are imposed, in the case of petty crimes committed by gangs, for example, as the member for Vaudreuil—Soulanges described this morning.

It is important to retain community service. The measure would be too punitive it if were applied in its simple form. That is why we are asking that this bill be referred to committee. We will then be able to examine it and fix some of its flaws. We hope the surcharges will not be disproportionate to the offender’s ability to pay.

I will support this bill at this stage of the legislative process in the hope that the Standing Committee on Justice and Human Rights will take all the time it needs to examine it, meet with stakeholders and perhaps amend certain aspects that need to be reconsidered. This bill is good for families, but it could be even better and at the same time preserve the right, the power and the flexibility that are needed for making the best possible decisions.

The House resumed consideration of the motion that Bill C-37, An Act to amend the Criminal Code, be read the second time and referred to a committee.

Increasing Offenders’ Accountability for Victims Act

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, I am pleased to participate in the debate on Bill C-37.

I will remind members of what our critic, the member for Gatineau, has stated. We support the bill at second reading. We are anxious to see it move forward to committee where we will give the matter more examination.

There is no question that members of the official opposition support victims of crime and their families. We recognize the value of provincial and federal services that have been provided to victims of crime and their families. However, there is a concern whether these services are adequate and sufficiently funded. I certainly have not heard an adequate explanation from the government whether this additional surcharge would ensure that those services are properly funded. If we are going to provide services to victims and their families to try to address some of the impact of the crimes to which they have been affected, then the support needs to be there and it needs to be properly funded.

We have raised our concern with the idea that the discretion of the courts has been removed in terms of deciding whether the surcharge creates an undue burden and hardship on the offender. This goes to the point that the Conservative government seems to continually move in on the jurisdiction of the judiciary to remove the learned discretion the courts have earned over many decades. This is a concern. In other words, the government is moving into an area in which, frankly, it has no business being. The Conservatives seem to be cherry-picking to restrain the judiciary in areas they think are politically advantageous to them.

There is certainly no evidence as to whether this achieves any positive outcome in terms of addressing crime and making our communities and Canadians any safer. They appear to continually penalize the people who are trying to ensure there is a balance of fairness in restitution and rehabilitation within the system, which has been shown to be much more responsive to the demands that we ensure that our communities are safer for Canadians.

I have some experience with the Nova Scotia victim fine surcharge and its implementation. It is an important measure, but I have not heard the government talk about the consultations it has had with provincial jurisdictions. Is there a standard application for the victim fine surcharge across the country?

I have not heard if the government has worked in any way to make sure that there is some standardization across the country or that the application of this victim fine surcharge is being applied in a uniform fashion across the country and that it complements what already exists in provincial jurisdictions. That is an important question. Certainly it is one members on this side will be pursuing at committee and in further debate in this chamber.

We recognize that more has to be done. We are concerned that members opposite are looking for an easy fix, for measures that would appear to be having some impact. They could be doing more in a substantive way to get at the issues of crime and punishment, to ensure that victims are properly compensated, that services are in place to deal with the impacts of the crimes on victims and their families in the most effective way possible. As we have said, the intent of the bill, which is to ensure that services for victims of crime are properly funded, is laudable and is something we support. Whether this increase would properly fund those programs, we have not heard as yet. These questions will be forthcoming.

I have not heard anything from government members during the second reading debate to answer some of our questions. I am not the first member to raise these questions, but we have not heard anything in response. They are important questions. We are not here simply to pass laws that fulfill a political objective. We are here to ensure the laws of this land do what they are supposed to do, that they are properly thought out and have the intended impact.

It is unfortunate that we are dealing with a piece of legislation in this House when there does not seem to have been an attempt to coordinate it with what exists at the provincial level. There is Bill C-350 and there are some conflicts between it and Bill C-37. Those things have to be clarified. We have to ensure that the work we are doing here is adding in a positive and constructive way to the laws of this land and not creating more conflict. We have already seen that legislation passed by the government, as it deals with crime and justice, has been challenged in various jurisdictions. Various provisions have been struck down by the courts. I suggest that these things happen because the legislation is not well thought out and members of this House who have much experience and knowledge to bring to bear are not given the opportunity to fully engage in debate and examination of legislation.

In conclusion, we on this side will be supporting this bill in principle to send it to committee. However, we have a number of outstanding questions that we will be pursuing. I hope members opposite will recognize the need to co-operate to ensure that this legislation, if it passes this House at the end of the process, is the best piece of legislation it can possibly be.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I am pleased to speak today to Bill C-37, an act to amend the Criminal Code, respecting the doubling of the victim surcharge and making it mandatory for all offences and from all offenders.

Like my colleagues in the House, we have the deep and shared concern with victims of crime and we recognize the importance of ensuring that victims have access to the high quality service they require in their moment of need. In that regard, we support the underlying principle of this legislation, which is that victims services need dependable and appropriate funding. However, the government has not produced any evidence indicating that the bill would do anything to accomplish the goal of sustaining victims services across all provinces and over time.

Moreover, and central to our opposition to the bill, is that by removing from the judiciary the discretion to consider the adverse effect that the surcharge may have in particular circumstances, something that my colleague from Gatineau referred to as well in her comments, something that judges are allowed to do under the current statute in relation to assessing undue hardship caused by the fine's imposition, the bill ignores the complex relationship between poverty and crime. It ignores the complex fallouts with respect to inequality that would result from the legislation, as my colleague from Gatineau also pointed out in her remarks, and, in so doing, may even exacerbate the effects of poverty on individuals and their communities, particularly the most vulnerable among us.

The government suggests that the bill would increase the accountability of offenders, without providing any rational basis to indicate that the across the board doubling of the surcharge amount is sufficient to sustain adequate funding levels for victim services in all provinces and territories. Indeed, this approach ignores the reality that victims of crime exist and require services even when offenders are not apprehended or convicted, for whatever reason, be it due to lack of evidence, problems with the evidence or, alternatively, when the matter has not gone to trial and the like.

It should be recalled that one of the most common crimes in the country, sexual assault, is one of the least likely to result in a conviction and, in many cases, charges are not pressed for various reasons, including because one may not feel comfortable facing one's attacker in court, or otherwise. Certainly a survivor of sexual assault deserves access to funded support and assistance even though the perpetrator has not been convicted of a crime under the Criminal Code.

If the government wants to propose legislation to ensure that victim services will receive consistent support across the board, anchored in the principle of equality and the like, it should commit to the direct funding of these services. We will be the first party to stand up and support such an initiative. Regrettably, there is no evidence that the bill currently before the House would accomplish the goal of sustaining adequate levels of support for victims of crime. Indeed, how soon will we be back here debating additional increases? How were the numbers arrived at? Indeed, a doubling, at first glance, appears arbitrary. Why not triple or quadruple the fines while we are at it?

Let me be clear that I am not advocating any such thing. The point is that there must be some evidentiary basis for government action in this regard. We have yet to see any evidence adduced in this matter to justify the doubling of the surcharge, nor have we seen that adequate attention has been paid to the provinces and their differing and particularized programs and needs when it comes to the use of surcharge fees.

This again raises the whole question of the federalist principle. In what manner are the provinces consulted in this regard? In what manner are their views taken into account? In what manner is there any equality of application with respect to the differing and particularized programs and needs in the matter of surcharge fees?

Continuing in that regard, and on this point in particular, we have to be mindful that even though the amount collected may be consistent across all jurisdictions, there is no question that to ensure the same quality of program the costs are different. In the north, for example, a smaller population means fewer people paying into the system since there are fewer convictions. Combine this with the fact that there is an increased cost to providing services in remote areas, how does the legislation propose to even out the gaps in access to and provision of services across Canadian jurisdictions? This is a question of equality and one to which my colleague from Gatineau also referred.

Beyond just the seeming arbitrariness of the increase is the fact that the bill would remove judicial discretion. Currently, Canadian judges are empowered by section 737 to exempt an accused from the surcharge based on the specific finding that the surcharge would result in undue hardship on that individual or on dependants.

Regrettably, the removal of judicial discretion, as contemplated by the bill, testifies yet again to the government's lack of respect for the Canadian judiciary, for the independence of the judiciary and for their experience and expertise in these matters.

By removing from our courts the authority to consider the undue hardship that may result in the imposition of the surcharge in specific instances, the bill essentially mandates that the courts turn a blind eye to the disproportionate and prejudicial consequences that mandatory sentencing would have on low-income and minority communities, two demographics that are already significantly overrepresented in the criminal justice system.

As members of Parliament, we do not have the ability to consider the unique facts and circumstances of specific cases. Judges who have the facts, witnesses and evidence before them are the persons best placed to exercise such discretion, and we must authorize them to do so.

Certainly we could place limits on the exercise of this discretion as appropriate. We can define undue hardship and we can list factors that comprise it as to better guide judicial decision-making in this regard. We should not, however, pre-emptively cut off all access to this defence as impecunious litigants would be particularly penalized and punished, perhaps not even in proportion to the offence for which they have been prosecuted.

Our judiciary is well-equipped and qualified to make factual determinations and more than capable to apply the law fairly and impartially. Moreover, the reasoning of judges in specific instances is recorded in opinions that are public, reviewable and appealable, thus making our judiciary the ideal forum in which these types of decisions should be made.

During previous debate on the bill, the member for Kootenay—Columbia suggested that the proper solution for those offenders “who do not want to pay the victim surcharge” is to not commit crime.

Besides the generally flawed logic underlying this theory of deterrence, which presumes that potential offenders reference their copies of the Criminal Code prior to contemplating or committing a particular offence, I do not believe there is any evidence to suggest that because of the victim surcharge, any would-be criminals would reconsider their plans, nor do I believe that offenders, particularly first-time offenders, are even aware that such a thing as a victim surcharge even exists, let alone that it might be collected from them upon conviction in a court of law.

The new provisions in Bill C-37 would require the collection of the victim surcharge for all offences and yet, by the government's own acknowledgement, there exists so-called victimless crimes. I am curious if any government member could explain to me how, in cases such as hate speech criminalized under the Criminal Code, where exactly the government sees the collected victim surcharge going, particularly, if, indeed, in its view, such an offence has no victim.

As noted at the outset, this House stands united in its recognition of the importance of providing services, support and assistance to victims. That said, the Liberals reject the premise of the bill that social problems can easily be solved by simply increasing criminal penalties and that judicial discretion should be curtailed.

The undue hardship exemption that currently exists in section 737 enables judges to be mindful of the relationship between poverty and crime. By removing this discretion, Canadian judges will be unable to take this into account and, as such, the bill would ultimately exacerbate the existing economic burden experienced by low-income Canadians and their communities, exacerbate inequality, impact disproportionately and continue the vicious cycle of poverty and crime in which some Canadians are trapped.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank my colleague from Nickel Belt for his welcome compliments. It is always nice to receive them. In politics, you generally do not receive many. So it is a little boost, particularly on a Friday, right before Thanksgiving weekend and a return to my constituency.

He has indeed hit upon one of the major problems with Bill C-37. It pertains to those who will be unable to pay. No one is bothered if a Conrad Black has to pay a higher surcharge at the judge’s discretion when the judge knows that he has the ability to pay. Not many people will be very upset to see that people like Vincent Lacroix or Conrad Black have to pay a slightly higher surcharge.

Statistics show that in our Canadian prisons and detention centres, the first nations are overrepresented, as are aboriginal people and sometimes women. That being the case, they are often extremely disadvantaged. What impact will legislation like this have on this prison population?

Extreme caution and compassion are necessary, because we are aware of the severity of the problem that has arisen in some locations, where people are often neglected by the federal government, because this is a federal jurisdiction. Extreme caution is necessary to ensure that no additional problems are created by passing Bill C-37.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I am pleased to see you enter the chamber and be our Speaker for the day, it seems. We know you will perform your duties professionally, as usual.

I rise in the House to reiterate my position on Bill C-37 as the justice critic for the official opposition. We repeat: we will be voting for this bill, which will be sent to committee.

We have spent long hours here debating Bill C-37, the Increasing Offender's Accountability for Victims Act, whose purpose is to amend the Criminal Code by increasing victim surcharges. We have spent long hours doing our utmost to show that there will be work to be done in committee. We cannot give the Conservative government a blank cheque, for the simple reason that this bill raises a lot of questions.

It was extremely interesting to hear my New Democratic Party colleagues try so hard to make our colleagues opposite understand the weaknesses in this bill. At the very least, we are going to have to ask for some serious answers.

I am going to summarize the problematic aspects of Bill C-37. One of the bill’s major weaknesses is that, once again, it takes away the judge’s discretion, by repealing subsection 737(5) of the Criminal Code. It takes away the judge’s power not to impose a surcharge when the offender can show that he is unable to pay or when the judge has particular reasons for not imposing the surcharge.

It must be understood that the surcharge is in addition to the sentence already imposed. That may be a term of imprisonment or a fine; it may be many things. That is what subsection 737(5) provides.

The bill has not yet been sent to committee, and already some people are arguing that this change could lead to unequal treatment for certain types of offenders. Consider aboriginal women, the first nations, and various categories of people who may not have the ability to pay this kind of fine.

We often hear the other side say, “You did the crime, well, you pay the fine”. We can all agree with that. It is indeed hard to have any sympathy sometimes. But here, it is not a question of sympathy, it is a question of justice and rehabilitation for a person who is released from prison.

The surcharge is in addition to each of the counts of which the person was convicted. If a person was charged with 10 counts of breaking and entering, for example, and decided to plead guilty to each of those counts, a surcharge would be levied for each count. That provides a small idea of the astronomical sum that would get added, if the bill were to be enacted.

If a person was sentenced to a term of imprisonment, a $200 surcharge would be imposed automatically for each count. That can add up to quite a lot of money. These people really have no income. The Minister of Public Safety seems to think that $4 or $5 an hour is a high wage, but that is not really the case.

Bill C-350 then lays down a new order for payment of the amounts owing. In short, the Criminal Code is well designed, in that it allows the judge to consider all cases on their own merits and make the best decision possible.

As a brief aside, yesterday evening, I attended the committee meeting to vet the Supreme Court of Canada nominee, Richard Wagner, of the Quebec Court of Appeal. In response to a question asked by a Conservative member, he explained the importance of the discretionary aspect of a judge's powers in relation to the independence of the three branches: legislative, judicial and executive. This discretionary power assures us that we live in a true democracy and not an anarchistic system that impinges on the powers of each of those branches.

The legislative authority must have confidence in its judicial branch, because without that, we have a serious problem.

Often, when it comes to justice bills, when you get right down to it, this government really seems to have a problem with allowing judges to exercise their discretion. This is a serious accusation for this government to level, and it is dangerous for our society, for Canadian society. I am not saying that all decisions are perfect, since to err is human, but overall, our system works well.

Here is my message to my colleagues: I hope we will work on this bill at the Standing Committee on Justice and Human Rights in the same way we worked together for the screening of the new Supreme Court justice—that is, in an entirely non-partisan fashion. We worked with a view to allowing the minister and the Prime Minister to appoint one of the three individuals recommended from among the best we have to offer Canadians to sit on the Supreme Court of Canada. I hope we can work as collaboratively once again.

Judicial discretion is referred to in subsection 737(5) of the Criminal Code, and there is a very strong argument in favour of it. During the first hours of debate on this issue, I was here, in the House, to encourage colleagues speaking to the bill, and I listened to the speeches. The Conservatives had little to say. That seems to be their approach: they introduce bills without anyone knowing what they are thinking, because they do not tell us. We see the minister or the parliamentary secretary briefly, and then they vanish. By asking a few questions, we sometimes manage to get to the bottom of what they are thinking.

I listened to the member from Yukon, who will surely raise his head because I am talking about him. I am standing right across from him, talking about him. He sees me and is listening to me. He said the following a number of times:

Mr. Speaker, there is a lot of discussion around fines and whether the offenders would have to make application or why the offender would be predetermined to have a victim fine surcharge and that it should be up to the judge's discretion. Judges are ultimately still deciding the fines and the fine amount. Fines are an alternative to jail [not necessarily], which is positive and allows offenders to remain in the community to contribute to their families and social and economic development.

That is the first misinterpretation of what Bill C-37 seeks to do. Fines are not being used as an alternative to jail. This bill spells out how much the victim surcharge will be for a person who is sentenced to jail. Everyone will be fined. There will be no exceptions. A person sentenced to jail used to be fined $100. Now they will be fined $200. If a fine is imposed instead of a prison sentence, then the amount will be based on a percentage. The percentage used to be 15%; now it will be 30%. That is what this bill will do. It is important that government members understand the bills that the government is introducing.

However, the point of accountability is that when a victim surcharge is assessed automatically, the offender still has the option of presenting undue hardships or mitigating circumstances where a judge could consider reducing the fine option. That is what subsection 737(5) is about. The Conservatives are using Bill C-37 to remove this subsection. They want to repeal it.

I agree with the hon. member for Yukon. I do not take issue with the fact that the onus is on the offender to prove that he is unable to pay or that there are fundamental reasons why he should not pay the surcharge.

I agree with the way the hon. member for Yukon sees things, but I feel like telling him to read Bill C-37, because it has the totally opposite effect of what he keeps saying about it in the House.

In closing, that is the message I want to send to my colleagues from all the parties. Bill C-37 will probably pass because the NDP will support it and I imagine that the Conservatives will do the same, at least, and so will the Liberals. At the very least we have to refer this bill to committee to be studied thoroughly. We have to find out what impact it will have, why the government wants to change this, why it wants to eliminate judicial discretion, whether there have been any abuses or bad decisions. That is what we need to know. It is not right to take the ideological approach that judges do not know what they are doing and cannot make a proper decision.

The House resumed from September 21 consideration of the motion that Bill C-37, An Act to amend the Criminal Code, be read the second time and referred to a committee, and of the motion that this question now be put.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I will begin by addressing Bill S-11, the food safety bill. It was introduced by this government in the Senate to bring about changes that would strengthen our food safety system further following the implementation of the 57 recommendations of the Weatherill report, which further strengthened our system.

I believe the comments, to which the member referred, by the Conservative caucus were not about the NDP obstructing the bill in the Senate but rather about statements that had been made by NDP members previously following the introduction of the bill that the NDP would oppose the bill. Of course, the issue we are looking forward to is having it pass successfully in the Senate. We hope that people will see the urgency more clearly, that we will get the support of the Liberals and that we will see its rapid passage here in the House. We would be delighted if we had support to do that very quickly from the NDP and other parties.

Now for the business ahead of us.

This afternoon, we will continue our safe streets and communities week with second reading debate on Bill C-43, Faster Removal of Foreign Criminals Act.

In last year's election, the Conservative Party promised to put a stop to foreign criminals relying on endless appeals in order to delay their removal. This bill follows through on our commitment to Canadians.

We will resume debate tomorrow, when I am optimistic, based on discussions, that debate will end—and, then, we will have concluded the first three weeks of our hard-working, productive and orderly fall sitting.

On our constituency week, I hope all members of Parliament and staff in this place will have an opportunity relax. Many of our pages will have their first opportunity to go home since they started the year here. I hope on our return we will all be ready to be productive and work hard because we have much to do.

On Monday, October 15, before question period, the House will start the second reading of Bill S-7, the combating terrorism act. We will also debate this bill on Wednesday and Friday of that week. This, of course, is designed to continue to make Canada and, in fact, the whole world, a safer place.

After question period on October 15, we will kick-off debate on Bill S-9, the nuclear terrorism act, which shares the same objectives. It would implement Canada's international obligations under the Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Acts of Nuclear Terrorism.

Tuesday, October 16, shall be the fifth allotted day, which will see the House debate a Liberal motion. We eagerly await the content of that motion.

Thursday, October 18, shall be the sixth allotted day when we will consider the New Democratic proposal.

It is my personal hope that having given the NDP three chances already this fall to articulate to the House and to all Canadians how it will implement its $21.5 billion job killing carbon tax that it will finally choose this as its subject for debate. I hope the NDP members will seize that opportunity and let Canadians know once and for all the fine details of their scheme to raise the price of gas, groceries, electricity and winter heat.

Should we have additional time that week upon our return, or even this week if we move quickly, the House will also consider second reading of Bill C-37, the increasing offenders' accountability for victims act; Bill C-15, the strengthening military justice in the defence of Canada act; Bill S-2, the family homes on reserves and matrimonial interests or rights act; and Bill S-8, the safe drinking water for first nations act.

Of course, I am always open to suggestions from the opposition. If they are willing to accelerate any of those bills for quick passage, I will call them.

Finally, I wish everyone here a happy Thanksgiving. I hope that everyone has a productive and hard-working week working with their constituents.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I thank the House leader of the official opposition for his kind comments about co-operation. It is true that we have been working together in a co-operative fashion on the bills he mentioned. In fact, without utilizing time allocation, after nine days of co-operative debate on things that everybody agrees on, we have been able to have one vote on one bill at one stage. If members wonder why it is difficult to get things done, that indicates why: we all agree on something and it still takes nine days to get one bill to one vote at one stage.

Anyway, this afternoon, we will continue with our helping families in need week with second reading debate on Bill C-44, which will undertake several steps to help hard-working Canadian parents in times of need.

Based on discussions, I expect that we will finish debating Bill C-44 today. If so, I will then call Bill C-21, An Act to amend the Canada Elections Act (accountability with respect to political loans), tomorrow.

I understand that there is interest in all corners of the House to see this legislation referred to committee quickly. I hope so, because I believe that all parties want it passed. We may be able to make that happen.

Next week we are going to focus on making our streets and communities even safer. From Wednesday through Friday we will consider second reading of Bill C-43, the faster removal of foreign criminals act, which will firmly show that Parliament does not tolerate criminals and fraudsters abusing Canadian generosity.

On Monday and Tuesday, we shall have the third and fourth allotted days. Both days will go to the official opposition. I am eagerly waiting to see what we debate those days. Perhaps the New Democrats will use the opportunity to lay out their details for a $21 billion carbon tax which would raise the price of gas, groceries and electricity. Perhaps I should correct the record; it would be a $21.5 billion carbon tax. I know there are some in the press gallery who want us to be precise about that.

If we have a hard-working, productive and orderly week in the House which sees debates on Bill C-44, Bill C-21 and Bill C-43 finish early, the House will also consider second reading of Bill C-37, the increasing offenders' accountability for victims act, which the official opposition supports, despite debating it for four days last week; Bill C-15, the strengthening military justice in the defence of Canada act; Bill S-2, the family homes on reserves and matrimonial interests or rights act; and Bill S-8, the safe drinking water for first nations act.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, last week on the Thursday question we asked the Leader of the Government in the House of Commons to respond to a sincere offer by the opposition to make Parliament work for Canadians by listing a number of bills on which the opposition was willing to work with the government. In response to that question, the government House leader spent a great deal of his time fabricating New Democratic Party policy rather than doing the job of House leaders, which is to formulate a strategy to make this place function for Canadians.

If the government spent at least 50% of its energy working with the opposition on such bills, it might acknowledge the progress on such bills as Bill C-42, Bill C-21, Bill C-44, Bill C-37, and Bill C-32. They are proof of the opposition's willingness to make this place function for Canadians. They also disprove the myth that the government had to use closure out of necessity rather than its own ideology and perspective of how a democracy ought to run.

The clear question in front of the government is twofold. When will we see the opposition days in the coming calendar for the official opposition? Also, a question which is on the minds of many Canadians with respect to a second budget implementation bill is, will we see a repeat of the one we saw in the spring? Many people called it a Trojan horse bill because it contained many measures that had absolutely nothing to do with the budget.

Motions in amendment

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Mr. Speaker, Bill C-299 suffers from many of the same flaws that, unfortunately, have been characteristic of the government's general approach to criminal justice. It legislates in response to a single incident rather than taking a more comprehensive outlook. It focuses on punishment after the fact rather than on the importance of the prevention of the crime to begin with. The bill relies on a mandatory minimum sentence rather than heeding the overwhelming evidence from jurisdictions around the world, including our own Department of Justice, that mandatory minimums are not only ineffective but also prejudicial.

At second reading my colleague from Mount Royal referred to numerous studies demonstrating the ineffectiveness of mandatory minimums in countries around the world, including the United States, New Zealand, South Africa and Canada. The research concludes that mandatory minimums do not prevent or reduce crime but result in more crime in and outside of prisons, that they prejudice already vulnerable offenders and in no way serve the objective of deterrence for which they are often advanced.

Accordingly, having regard to the evidence, we remain opposed to mandatory minimums on grounds of principle and policy, and we have sought to remove the mandatory minimum provisions from the bill at committee.

The committee heard from a former Supreme Court justice, the Hon. John Major, who said that even without a mandatory minimum in place, kidnappers in Canada have been dealt with severely by the courts on a consistent basis.

The committee also heard from Michael Spratt, a criminal lawyer from the Canadian Civil Liberties Association, who warned us—and my colleague knows this from personal experience as a lawyer and as minister of justice, with whom I had the pleasure of serving in Canada—that mandatory minimums do not remove discretion from the legal process. They simply transfer it from judges, who work in open court and publish decisions that are reviewable, to police officers and crown prosecutors whose decisions are neither reviewable, transparent nor public.

With respect to Bill C-299 then, if the prosecution were to deem a five-year penalty excessive in a particular case, it could decline to prosecute or could charge for a lesser offence or another offence such as abduction, and no recourse would be available to those who disagree. It would again undermine the very intention of the sponsor of the bill.

Clearly, the arguments against mandatory minimums are overriding. Regrettably, we are not surprised that our Conservative colleagues on the justice committee remain unconvinced, but we are surprised by the disturbing if not alarming justifications of mandatory minimums that some of them put forth.

The member for Brampton West, for example, argued that there was no distinction between incarceration and deterrence, saying that an individual in prison was necessarily specifically deterred from committing crimes. That suggests that a viable crime prevention strategy is to put as many people in jail for as long as possible. As the logic goes, if everyone were in prison then no one would be out committing crimes. Regrettably, this myopic approach is not only absurd but also ignores entirely the root causes of crime and the importance of rehabilitating offenders and the need for both prevention and deterrence.

Another alarming attempt to justify mandatory minimums came from the Conservative member for Scarborough Centre, who asked: “[H]ow do we protect society from judges who decide that the same offence should be applied to someone who lifts a chocolate bar and to someone who commits murder?“ Apart from the fact that guidelines and precedents exist to direct judges when determining appropriate punishment, and apart from the fact that no convicted murderer in Canada has ever received a chocolate bar calibre sentence, and apart from the fact that should such a sentence ever be handed down, the appeals process would undoubtedly correct the problem, the member's comments demonstrate a lack of understanding of the judicial process.

The committee heard a good deal of evidence that limiting judicial discretion is an ineffective way of fighting crime. It heard no evidence whatsoever that Canadian judges have been guilty of the kind of dereliction of duty the member describes. Indeed, Justice Major urged committee members to have confidence in our judges and to value judicial independence. At the very least, we would urge all members to respect our judiciary and to value the importance of having evidence before impugning the judiciary's common sense.

In that regard, the evidence is squarely against mandatory minimums. Yet those of us who affirm the facts know what we can anticipate from those who support this discredited approach. Indeed, we will be subject to accusations that we care more about criminals than about victims, comments that regrettably resurfaced in last week's debate on Bill C-37.

I trust that there will be no demagogic accusations in this debate. We all want the kidnapping of children to stop. The question is how to achieve that goal. Do we address, to the extent possible, the underlying causes of crime, programs for the prevention of crime, providing police with the tools they need to keep people safe and making every effort to rehabilitate the criminals in order to reduce the likelihood that they will re-offend? The answer is a resounding yes.

Imposing mandatory minimum sentences that we know do not work, that limit judicial discretion in unusual or unanticipated cases and that represent an approach that compounds rather than addresses the initial injustice are neither effective deterrents nor do they serve the purposes of justice.

Let us look at the irony here for a second. Simply put, by including an exemption in the bill, the government is implicitly acknowledging in a small way the need for the judicial discretion at sentencing. The motion before us seeks to improve the clarity of that exemption by giving judges more flexibility to deal with unusual cases.

The first amendment proposed would exempt from the mandatory five-year minimum anyone substantially similar to a parent, guardian or person having lawful care or charge of the child.

The second amendment would exclude from the exemption anyone deprived by a court of all parental rights.

Ideally, of course, the mandatory minimum provision would be stricken as well, but failing that, we offer these amendments as the next best thing. We hope the House will signal its desire for these changes and that the Senate will report back an improved version of the bill.

We trust that members on the government side will carefully study the critiques that have been made of mandatory minimums and will heed overwhelming evidence that they simply do not work at best and are prejudicial at worst.

While it is our sincere hope that this is the last bill with a mandatory minimum provision that will come before this House and that the serious shortcoming is not likely to be fixed at report stage, I do hope that the other shortcomings of the bill may, nonetheless, be ameliorated somewhat to our amendment which otherwise would support the intention of the proposer himself.