Public Safety Committee on May 8th, 2012

[Elissa Lieff]

I'm just listening.

I would expect that in a situation where there are outstanding arrears in child support, if there is an occasion to have that support paid, it would be welcomed as well.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Thank you.

Ms. Hoeppner said an interesting thing about amendments; she had an interesting question earlier today.

I just scribbled down an amendment here and wanted to get your thoughts on whether this might solve some of the problems here. I am not an amendment writer, but let me give you this amendment quickly: In case of dispute or disagreement between an inmate and CSC regarding a payment, a mediator will be made available to aid in dispute resolution.

Would something to the effect be helpful in sorting out some of the ambiguity in this bill?

[Catherine Kane]

I'm not sure that would sort out the ambiguity because there isn't any ambiguity in terms of the amount that is owed with respect to a surcharge, restitution of family law order, and so on. Those amounts have already been determined. If a court is then awarding an amount to an offender because there has been some loss or damage to that offender, that amount has already been determined by a court. Those various amounts are not in dispute.

I take it the dispute you are referring to is when the offender simply doesn't want those payments to be made to his creditors.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

I was thinking in particular about residential school settlements, if someone were receiving such a settlement while incarcerated. I think there would be some dispute as to whether that is the kind of award that now should not be passed on to the folks who are outlined in the bill. Disputes will arise.

[Catherine Kane]

Certainly, that's an issue your committee may want to consider.

[The Vice-Chair, NDP, Randall Garrison]

Thank you very much, Mr. Rafferty.

Ms. Young.

[Wai Young, Conservative, Vancouver South, BC]

Thank you so much for being here today.

Not being a lawyer myself but having experienced the victim side of this, I was particularly fascinated by some of your comments about how things move through the legal system. It's very complicated, very expensive, and a very long-term process as you said earlier.

This bill is a bit of a shortcut. Is that correct? Can you expand on that a little bit for us?

[Catherine Kane]

My reference to a shortcut was that it might result in the victim collecting an award that they otherwise would be waiting a long time to collect. The sentence imposed on the offender can include restitution. It's not awarded in the majority of cases, but it's awarded in some cases for what's referred to as reasonably ascertainable losses. Often when it's awarded, the victim has some trouble collecting it. Many victims have said that it's onerous because then it's their responsibility to collect the restitution. However, for some, it alleviates the need to sue the offender in civil court for the same damages. It can take a while to collect the restitution order. It requires that they file the order in the civil court. Then they take steps to execute it. Often they would give a direction to a sheriff, for example, to seize an asset or bank account. They would do that, and there would be nothing there. Then they would still have the outstanding order and they would have to issue what used to be called writs of FiFa—I don't know if that's still the current term. They have to give that direction again at a future time to see if the offender has any assets, and aim to collect again.

If the offender isn't voluntarily paying, it can be a long process. As noted by other witnesses, they are often not people of means, so it's not easy for them to make these payments. Sometimes payments are made over years or months where a payment scheme is worked out. Therefore, if you had an award made to an offender and that money could be provided to the victim in a lump sum to satisfy that amount, it would save them waiting for those payments to trickle in or other efforts to be made on the part of the victim to collect. They wouldn't have to do so.

[Wai Young, Conservative, Vancouver South, BC]

Who has the primary responsibility for ensuring, overseeing, or making sure that those payments are made? How exactly does that work for some of us who have not been through that process?

[Catherine Kane]

When we're talking about restitution, there are two different routes that can be followed. Some offenders are ordered to pay restitution, or they volunteer to pay restitution as part of a probation order. When that's the case, the probation is monitored. If restitution is still not paid at the end of their probation order, the victim can transfer that order into what we call a stand-alone restitution order, and they can file and enforce it as a civil judgment. But often, when it's a condition of probation, it is paid.

Alternatively, a court can order—

[Wai Young, Conservative, Vancouver South, BC]

Can you just pause there? We've been hearing all along about how the inmate generally has no money and all of that sort of thing, which I'm sure is true. But are you saying now that, generally, when there is probation, these sums are paid?

[Catherine Kane]

I should backtrack to the sentencing process. In many cases, in order to mitigate the sentence, an offender who can pay in situations where damages or losses have been suffered and restitution is a logical sentence, will voluntarily indicate that they would like to make restitution. That will, hopefully, mitigate their sentence. In those cases, sometimes probation may be an appropriate sentence. It always depends on a number of factors, such as the seriousness of the offence, the offender's record, and so on.

Some of the research done by the Department of Justice over several years has indicated that, where restitution is volunteered by the offender, it is paid more often than when it's ordered by the court. In situations where a court is sentencing an offender, and there's no offer to make restitution, perhaps because of an inability to pay or other reasons, the court may order restitution. The crown may ask for restitution, or the court can do it on their own motion, but they're going to take into account a whole variety of factors, again, in terms of what the appropriate sentence is. So it could be that restitution isn't going to be appropriate for the nature of the offence, and a consideration—not a determinative consideration, but it is certainly a valid consideration—is ability to pay. The courts know that if they order restitution to be paid by an offender who has no means of paying it, it's not assisting either the offender's rehabilitation nor assisting the victim in getting the reparation they seek.

So then moving on to the situation—

[The Vice-Chair, NDP, Randall Garrison]

Could you conclude very quickly.

[Catherine Kane]

Sorry.

So where restitution is ordered by a court, as I say, if it's not paid—and sometimes there are terms and conditions, a payment schedule for restitution—then it's up to the victim to take steps to enforce it. They file it with the civil courts and they can use civil remedies to seek to get the money, but it is their responsibility.

[Wai Young, Conservative, Vancouver South, BC]

So the victim is further victimized in having to seek restitution, and the onus is on them.

[Catherine Kane]

That's correct.

[Wai Young, Conservative, Vancouver South, BC]

Thank you.

[The Vice-Chair, NDP, Randall Garrison]

Thank you, Ms. Young.

I believe that will be our last round of questions, but before the witnesses go, I just want to clarify the issue that was raised by Mr. Scarpaleggia.

Coming out of our in camera meeting, there was a motion—which is public—that this committee hear expert testimony on the constitutional aspects of Bill C-350 before proceeding to clause-by-clause consideration of the bill.

I consulted the clerk. The clerk conveyed that request to the Department of Justice, which declined to add a witness who could comment on constitutionality.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

I'm sorry, Mr. Chair, but we were still in camera when we moved the motion.

[The Vice-Chair, NDP, Randall Garrison]

I'm told by the clerk, from the minutes of the proceedings, that it is public.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

It was in camera. We were still in camera when we were discussing future business.

[The Vice-Chair, NDP, Randall Garrison]

I'm advised by the clerk that the actual motion does then become public. That's the advice I'm receiving from the clerk at this point, and it's certainly now public.

[Voices]

Oh, oh!

[The Vice-Chair, NDP, Randall Garrison]

On the advice of the clerk, this request was communicated to the Department of Justice, which declined to provide additional witnesses because of their possible future involvement in any constitutional litigation resulting from the bill.

I'm not intending to open debate on this point, but as an explanation—and also as a courtesy, I think, to our witnesses, who may have felt somewhat besieged by the questions—this was a decision made by officials other than the witnesses who have appeared.

We thank you for appearing today. If you have any further thoughts or comments that occur to you after you leave, you could certainly submit them to us in writing.

Ms. Doré Lefebvre.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

I would like to discuss the motion. That does not concern our witnesses, so I want to thank them for being with us today. It was a pleasure to have them.

I want to talk about the fact that our request to hear from certain witnesses was denied.