House of Commons Hansard #160 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was offender.

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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.

Increasing Offenders’ Accountability for Victims Act
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10:05 a.m.

NDP

Françoise Boivin 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.

Increasing Offenders’ Accountability for Victims Act
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10:10 a.m.

NDP

Claude Gravelle Nickel Belt, ON

Mr. Speaker, I would like to congratulate my colleague from Gatineau for an excellent speech. The member for Gatineau is the best member of Parliament that Gatineau has ever had, bar none.

This bill will affect aboriginal people in a number of ways. I would like her to explain how aboriginal people may be affected by these legislative changes.

Increasing Offenders’ Accountability for Victims Act
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10:10 a.m.

NDP

Françoise Boivin 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.

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10:15 a.m.

Conservative

Ryan Leef Yukon, YT

Mr. Speaker, the member raised the example of an offender who had been charged with 10 break and enters and has to go before the court. I am just wondering if my hon. colleague understands that to mean that each one of those counts would be considered separately, and a fine surcharge would be applied to each one of them regardless of whether or not they were sanctioned with a term of imprisonment.

Does she understand the legislation to read that, on top of jail as a sanction, the individual would also receive a fine surcharge for every one of those offences?

Increasing Offenders’ Accountability for Victims Act
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10:15 a.m.

NDP

Françoise Boivin Gatineau, QC

Mr. Speaker, that is my understanding at this point in time unless somebody wants to correct me.

My understanding of the bill is that a surcharge will be imposed, no matter what the punishment, for every count to which someone pleads guilty. It is important to understand this. That is what needs to be clear in people's minds: the surcharge is not the punishment as such. The bill says what it says, which is that it is a surcharge added to the punishment handed down by the judge. It means that if someone pleads guilty on six counts, there will be six surcharges. I have no problem with that. Allow me to repeat: the question has nothing to do with the concept of the surcharge.

Everyone is aware of the fact that the Federal Ombudsman for Victims of Crime has said that victims need to see this fund. One might well ask whether this is the right way to help victims or whether there ought perhaps to be other dedicated funds. Few people here would be against having offenders contribute to compensation for their victims. In any event, that is what I think.

That being said, in attempting to solve one problem, we should not create a new one.

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October 5th, 2012 / 10:15 a.m.

Liberal

Irwin Cotler 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.

Increasing Offenders’ Accountability for Victims Act
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10:25 a.m.

NDP

Robert Aubin Trois-Rivières, QC

Mr. Speaker, I listened carefully to the hon. member's speech. I keep coming back to one issue. Once offenders have served their sentence, they must re-enter society. Does the member have anything to say about the adverse effects this mandatory surcharge could have on crime? I do not want to generalize, but there is sometimes a link between a person's socio-economic conditions and the fact that they commit certain crimes.

Would the member not agree that this bill does not give us ways to attack crime at its roots and lower the crime rate?

Increasing Offenders’ Accountability for Victims Act
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10:25 a.m.

Liberal

Irwin Cotler Mount Royal, QC

Mr. Speaker, as the member just said and as the member for Gatineau said in her speech this morning, it is a matter of justice, rehabilitation, equality, protection against poverty and judicial discretion.

For all these reasons, we are opposed to this bill. We agree with the principle and the objective, but we do not agree with how the government has addressed this issue.

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10:25 a.m.

Liberal

Judy Sgro York West, ON

Mr. Speaker, I congratulate my hon. colleague on highlighting so many of the issues that would have a clear impact if this legislation were to go forward.

Given the concern that many of us have when it comes to judicial review and fairness in the judicial system, would the hon. member be prepared to comment on how he sees this fitting in with the government's continued mandate on the persecution of so many different people?

Increasing Offenders’ Accountability for Victims Act
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10:25 a.m.

Liberal

Irwin Cotler Mount Royal, QC

Mr. Speaker, the legislation really reflects and represents the generic problems associated with the government's approach to crime and punishment. I use the words “crime and punishment” because there is a generic absence with respect to issues of prevention, but only with after the fact punishment.

Even when it comes to that issue, here, too, we find, as in this legislation and in others, a lack of consultation with the provinces, a lack of appreciation to differential impacts that such legislation would have given different provinces, a lack of appreciation of the prejudicial impact that this would have on minority groups in this country, particularly aboriginal people, a lack of appreciation for the importance of judicial discretion and, indeed, in that regard, a lack of appreciation with respect to the separation of powers and the importance of the independence of the judiciary, let alone the experience and expertise of the judiciary in matters of this kind, and a lack of appreciation for the overall role, as I said, with respect to prevention to begin with.

When one looks at this legislation, it yet again reflects the exacerbation of the problems we have with crime and punishment rather than approaching it in a manner that would be preventive, rehabilitative, egalitarian and, on the whole, respectful of our separation of powers and the role of the judiciary.

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10:30 a.m.

Liberal

Kevin Lamoureux Winnipeg North, MB

Mr. Speaker, I wonder if my colleague could comment on the victim support programs. That is something which the government should support, but it does not need to be solely through surcharges.

Increasing Offenders’ Accountability for Victims Act
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10:30 a.m.

Liberal

Irwin Cotler Mount Royal, QC

Mr. Speaker, that is an excellent question because it is precisely the approach to victim support programs where we can fulfill the very objective that the legislation has underlying it, but not do so in the particularist and prejudicial fashion that this legislation would.

Again, we support the principle underlying this legislation but not the means chosen to implement that principle.

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10:30 a.m.

NDP

Robert Chisholm 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.

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10:40 a.m.

Liberal

Kevin Lamoureux Winnipeg North, MB

Mr. Speaker, we very much support victim service funds and realize how important they are for victims of crimes. Having said that, we want to see a more proactive approach in preventing crimes.

Some of the Conservative members try to give the impression that these surcharges would have an impact on preventing crimes from taking place in the first place. I question that. We need to be very clear that there is nothing in this legislation that would prevent crimes from taking place. If we canvass the public, we would find that there is a higher degree of interest in implementing measures that would prevent crimes. I would appeal to the Prime Minister to take that more seriously.

The government needs to take a more proactive approach in preventing crime from taking place in the first place. Does the member agree?