Bill C-37 (Historical)

Increasing Offenders' Accountability for Victims Act

An Act to amend the Criminal Code

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

The House resumed from September 19 consideration of the motion that Bill C-37, An Act to amend the Criminal Code, be read the second time and referred to committee, and of the motion that this question be now put.

Increasing Offenders' Accountability for Victims Act

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

Mr. Speaker, I am pleased to participate in this debate on a very important bill, Bill C-37, the Increasing Offenders' Accountability for Victims Act. This bill would amend section 737 of the Criminal Code to increase victim surcharges. Specifically, it would double the amount of victim surcharges imposed on offenders from 15% to 30%, and if no fine is imposed, the surcharge will increase to $100 for offences punishable by summary conviction and to $200 for offences punishable by indictment.

I forgot to mention that I will be sharing my time with my colleague from Beaches—East York.

Back to BillC-37. It is important to note that, contrary to what the members opposite have said over and over again all over the place, the New Democratic Party cares about victims' interests. That said, let us talk specifically about Bill C-37.

First, what is a surcharge? It is an additional penalty imposed when a guilty offender is sentenced. The surcharge is collected and kept by the provincial and territorial governments to finance programs and services for victims of crime in the province or territory where the crime was committed.

This would be one way to increase funding for programs to assist victims of crime. The existing services cannot keep up with the demands of so many Canadians, and additional means would be most welcome.

According to the Federal Ombudsman for Victims of Crime, crime cost Canadians around $70 billion in 2003. Of this, $47 billion, or about 70%, was assumed by the victims themselves. Those numbers are huge.

What concerns me about this bill is the repeal of section 737.5 of the Criminal Code. This section allowed judges to waive the surcharge if they felt that imposing it would cause problems or undue hardship for the individual in question. I am deeply concerned about this. I am not convinced that we can anticipate every possible situation. I am very comfortable with the idea of giving judges the flexibility to determine if the surcharge will cause more harm than good to society. We have a strong criminal justice system and competent judges. We should let them do their jobs. They have been appointed because of their competence and their sound judgment, and we should let them use those skills.

I would like to take this opportunity to remind the House that the courts have already ruled on judicial independence. I recall one particular judgment of the Ontario Court of Appeal on minimum sentences that was handed down last February. The court ruled that some mandatory minimums could be considered cruel and unusual punishment and therefore were in violation of the Charter.

I am not suggesting that this is exactly the same thing, but it follows the same principle. We cannot possibly anticipate every situation, and we should give judges the flexibility they need to determine the best outcomes. I think it makes sense to maintain the discretionary power of the judiciary, especially since there are many extenuating circumstances in which forcing an offender to pay the surcharge would have an unnecessarily harsh effect.

I am particularly concerned about offenders who have a clear history of mental illness and who may be unable to pay that surcharge.

We must seriously examine the impact that this change will have on our justice system. I hope that, if the bill is passed at second reading, the Standing Committee on Justice will examine this issue seriously and thoroughly, and that the members of the committee will keep an open mind when listening to the witnesses.

Some organizations have already expressed their concern. I am thinking of the Elizabeth Fry Society, which is concerned about the impact that these additional fines will have on disadvantaged aboriginal people. The John Howard Society is worried that some fines will be disproportionate to the crimes committed, but does not have a problem with monetary penalties.

The idea of allowing people who cannot pay their surcharge to participate in a provincial fine option program strikes me as a worthwhile approach. However, the bill does not take into account whether such a program exists in the province or territory where the crime was committed. There is no other alternative if this type of program does not exist. I hope that the committee will take this into account and will find a solution for such cases.

Like many of my colleagues, I am also wondering about the link between this bill and the hon. member for Stormont—Dundas—South Glengarry's Bill C-350, and the mutual impact they will have if they are passed. Time and time again in this chamber, we have seen the government use private members' business to pass more controversial measures.

In closing, I am very pleased to see that the government is concerned about the funding of victims programs. However, I have reservations about taking away from judges the power to choose not to impose the victim surcharge under certain specific circumstances that are currently set out in the act, particularly since they will have the flexibility to choose to impose a higher surcharge.

I hope that this will be seriously examined in committee if the bill is passed at second reading. We must not contribute to the vicious circle of poverty and crime but, rather, we must work to reduce crime in Canada in the short, medium and long term.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, when the member talked about the principle of the bill, she made reference to two things. One was the surcharge. There is a great deal of sympathy from the public as a whole that there be some form of surcharge that ultimately goes to assist victims of crime in one form or another. There are many different types of programs across the country. There seems to be a lot of merit and support in principle for that.

We would also suggest that there needs to be general funding that supports victims, possibly through general revenue.

The other principle of the bill, and it is a significant one, is the issue of judicial independence and allowing judges the discretion to determine what sort of surcharge would be applicable. That is, in essence, being wiped out with this particular bill.

It surprises a lot of people that the NDP seem to favour judicial independence being taken away or taken out of the court by allowing and supporting the bill to go to committee. The largest, most significant aspect of this legislation is that it is proposing to take away that judicial discretion.

Does the NDP not have concerns about taking away the judicial independence, and if so, why would it be voting in favour of the bill?

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

Mr. Speaker, I would like to thank my colleague for his questions. I think I have made it clear that we, in the NDP, are concerned about a judge's discretionary power. I think I said that we agreed that the government should think about the victims of crime. We are also as concerned as the members opposite about taking away judicial independence, but we are also concerned about taking away their discretionary power, which is why we were talking about exceptional cases. As I mentioned in my speech, the cases of people visibly affected by mental illness come under these exceptional situations.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I congratulate my colleague on her speech.

She made the connection between poverty and criminal behaviour. Could she provide some more details on the surcharge provision, as well as on the link between poverty and criminal behaviour?

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

Mr. Speaker, I thank my colleague from Saint-Bruno—Saint-Hubert for her question. I know these are topics that concern us all. As for the connection between poverty and criminal behaviour, we know very well—and it has now been scientifically proven—that social factors play a very important role, both in the criminal behaviour and the health of individuals.

So we want to reduce criminal behaviour and, to do that, we need to backtrack and reduce the poverty that might be one of the factors at the root of criminal behaviour.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, I am happy to stand this morning to speak to Bill C-37.

As our justice critic, the member for Gatineau, has made clear in her speech on this matter, we will be supporting this bill in order to send it on to committee. I am happy to move the bill out of this place for a couple of reasons.

First, it appears to trivialize an issue of real concern and significant cost, which is victim compensation. A 2003 study put the cost of crime in the vicinity of $70 billion. Seventy per cent of that cost is borne by the victims of crime, it concludes. Another study from 2004 assessed the pain and suffering of victims at $36 billion.

Now I come to these numbers somewhat skeptically. I am not quite sure of the methodology quantification for placing a price tag, in effect, on the kinds of losses, heartbreak, trauma and mental or physical anguish that victims of crime experience. Nevertheless, I would not dare suggest that they overstate the case.

Therefore, it is in that context and through that lens that I come to Bill C-37. What I see is a bill that purports to support victims by way of pennies on the dollar.

For example, where no fine is imposed, the bill would increase the surcharge from $50 to $100 for summary convictions and from $100 to $200 for indictable offences. If the goal is to provide real and meaningful compensation for victims, the bill on its face is a woeful and token effort. For all the world, it looks to me like a political marketing exercise, one that makes a mockery of victim rights and victim compensation.

However, let us let the committee look into this issue and answer some obvious and important questions: How much of this surcharge makes it to victims? How much of it goes to support bureaucracy, a special victim surcharge collection agency, if I may? What are the costs to the court system of administering fine option programs where they exist? These programs, on the face of it, would require significant administrative effort to operate.

I have another issue for the committee to study. How many of those who are found guilty of a crime can actually pay a victim surcharge? Interestingly, Conservative senator, Hugh Segal, had an oped published last year entitled “Tough on poverty, tough on crime”. He begins his oped by stating:

Debates about whether approaches to crime and corrections in Canada are too soft or too tough are ongoing and endemic.

While the partisan debate continues unabated, the real issue is why prisons disproportionately house our most vulnerable citizens.

While all those Canadians who live beneath the poverty line are by no means associated with criminal activity, almost all those in Canada’s prisons come from beneath the poverty line. Less than 10 per cent of Canadians live beneath the poverty line but almost 100 per cent of our prison inmates come from that 10 per cent.

Senator Segal's comments raise another question. Bill C-37 seeks to remove judicial discretion to waive the discharge. So, is the judiciary's predilection for waiving the surcharge an acknowledgement of the social fact noted by Senator Segal? Do judge's understand from their seat on the bench, confronted daily with courtroom reality, something that my colleagues, from their seats in the House exercising their ideological reflexes, fail to grasp? Do judge's perhaps recognize, as this legislation fails to do, that very often those subject to a victim surcharge have dependants, children, for example, whose circumstances are not at all advanced by the imposition of fines on those upon whom they depend?

We should put this question to the committee. Will crime victims meaningfully benefit from Bill C-37 or is this tokenism, cynical political marketing and/or just another ideological spasm? Or, is there a better way to deal with our collective responsibility to those who are victims of crime?

This leads me to the second reason I would like to see the bill move on to committee. It is so we can get on in the House with the crucial task of ensuring that we do all we can to prevent crime and limit the number of victims of crime.

On this side of the House, we recognize that we, in a meaningful way, must ensure that we treat victims of crime with compassion and generosity. That means being tough on crime by protecting the communities in which we live with a balanced, effective approach that includes prevention, policing and, more important, border security.

One of the issues that we need to address is gun violence. Toronto is not a dangerous place in which to live but this past summer gun violence in my city created many new victims, those who lost their lives, those who lost loved ones and those who will never again be able to feel safe in their own community.

We know that smuggled guns account for about half of all guns recovered in large Canadian cities. According to Toronto's police chief, Bill Blair, 70% of the guns seized by Toronto police are smuggled in from the United States and yet the Conservative government is recklessly cutting back on front line border security officers. Of the 325 jobs on the front line of border crossings across the country that will be cut, 60 are in the GTA and 72 in southern Ontario.

In 2011, CBSA officers in the southern Ontario region seized 128 firearms, including 106 handguns, as well as 191 prohibited weapons. In addition to the front line border cuts, every intelligence officer in Canada got an “affected” letter. These are the people who gather and develop information on how and where guns, drugs and other contraband are being smuggled into Canada and by whom. Dog handlers at marinas and airports are also being cut, further limiting CBSA's ability to interdict contraband. A huge percentage of the drugs smuggled through southern Ontario borders every year end up on the streets of Toronto, my city, fueling more gun crimes.

Another issue that needs to be dealt with is gang activity. There are an estimated 11,000 street gang members and associates in Canada today. Most of them are young, under the age of 30. The youth gang prevention fund was meant to support initiatives that target youth and gangs who are at risk of joining gangs in communities where youth gangs are an existing or emerging threat. This fund was set to expire in 2011 but we, the NDP, pushed successfully for its extension. That funding supported case management, parent support, community education and employment outreach for youth age 13 to 24 through the PIT program in Toronto. Funding, however, expired in 2012.

The youth gang prevention fund continues to fund the MY Region Park project, a project that works with community organizations, families and individuals to assess and understand issues related to gang activity and to design and implement appropriate interventions. The MY Region Park project is targeted at kids age 12 to 17. However, funding for this project is set to expire in 2013.

We should move Bill C-37 to committee so some critically important questions can be asked and answered there. We should also take the opportunity to prevent crime and prevent the creation of more victims of crime. We should reverse the cuts to the CBSA and ensure that we stem the smuggling of handguns onto the streets of our cities. We need to work with the provinces and municipalities to ensure that all jurisdictions are working hand in glove to develop and implement a comprehensive anti-gun smuggling strategy. We also need to take the opportunity to ensure that kids themselves do not become victims by way of getting recruited into gang activities before they even have a chance to contemplate a different and better future for themselves. We need to partner with municipalities to ensure that we establish successful programs that will steer kids to education and employment, not crime and violence. This is what it means to be tough on crime.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

Mr. Speaker, I noticed that toward the end, and even throughout, the member was talking about new programs to stem the crime rate and steer young people into education and jobs. I would hope that when the NDP members, and perhaps that member, come to committee to discuss the bill they will not just once again bring in the mantra of “we need a program for this, we need a program for that”. If they have an idea for a program, and I hope they will, the way to do it is to bring that program, the cost of the program and a cost-benefit analysis of the program. That is the job they should be doing, rather than just arbitrarily asking for a program for this. They should come prepared with their request for a program to demonstrate the cost and the benefit of it.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, I thank my friend for his question and his expression of hope for the New Democrats' participation on the committee. I do not sit on the justice committee but I trust that my colleagues who do will bring forward some very concrete proposals to deal with crime, assist victims in this country and compensate them properly.

I find it ironic that the member raises the issue about real programs. The very point of my speech is that what is being offered as a token gesture to victims of crime is something that will not help victims of crime as far as I can see. We will let the committee answer the serious and important questions about whether any of the surcharge makes it into the hands or pockets of victims of crime to assist them with their experiences, trauma and losses. We will also see if it makes sense to waive judicial discretion in terms of actually applying the surcharge.

I trust that my colleagues on the justice committee will be able to talk about the social circumstances that surround criminal behaviour and bring a little reality to the members of the government so they do not bring wasteful and token legislation into the House just as a matter of ideological reflex.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it was not that long ago when former prime minister Jean Chrétien brought in legislation that dealt with the surcharge. There was an increase in the surcharge, the way in which it would actually be applied and so forth.

In most part, I think we will find favourable reaction to the surcharge ,but the principle of this bill is to take away the discretion of judges to apply that surcharge. That is the overriding concern in this legislation. I believe the New Democrats are sending a very strong mixed message. They are saying that, in principle, they support judges not having that discretion by voting in favour of the legislation. The New Democrats need to be clear on this particular point.

We in the Liberal Party do not support the government of the day taking away the discretion from judges to use common sense to get a better understanding of a situation before the surcharge is actually applied. We believe in the judicial discretion that is necessary in order to make this program work because we want victims in Canada treated appropriately and the funds for victims to be there.

Do the New Democrats support judicial independence and, if so, why are they voting in favour of this legislation?

[The Speaker, Conservative, Andrew Scheer]

The hon. member for Beaches—East York has 30 seconds.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, it is unfortunate that I have just 30 seconds because I wanted to quote an article by a criminologist on the subject of ironies.

It is interesting that the member stands and talks about mixed messages because it was a Liberal government in 1994 that introduced the largest set of mandatory minimum penalties in Canadian history. If the Liberals want to talk today about mixed messages, then I would suggest that they look at their own history and efforts to limit judicial discretion.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, I rise to speak to Bill C-37, another Conservative bill that shows just how out of touch the Conservatives are with reality when it comes to crime and justice.

The bill changes the rules concerning victim surcharges, which are the fees that are imposed on a person who is sentenced for a crime. This proposal doubles the amount of the fine and removes the discretion of a judge not to impose the fine if it would cause undue hardship. That is the prerogative of the judge. I will explain why this is a flawed idea and why I will be voting against this legislation at second reading.

There is no dispute that victims of crime need support and assistance. Often the victims of crime are not just the people we think of as being the ones involved in the incident. Their families and communities can also be affected tremendously by crime, especially in areas such as hate and bias crimes.

Support for victims, their families and the community must take multiple forms. Financial support alone does not heal. There must be services. Government must take an active role in providing those services through providing grants, public-private partnerships, and many other forms other than simply imposing a fine.

We oppose this increase to the victim surcharge because it ignores the reality of those who are being placed in prison, who are primarily the poor, racial minorities and aboriginal people. Those who steal for subsistence certainly do not have the money to pay such a fine, and the removal of a judge's discretion based on the ability of the offender to pay the fine is untenable. It does not take an expert to see the problem. Even Conservative Senator Hugh Segal said this:

Less than 10 per cent of Canadians live beneath the poverty line but almost 100 per cent of our prison inmates come from that 10 per cent. There is no political ideology, on the right or left, that would make the case that people living in poverty belong in jail.

This is precisely what the bill would do. Those who are living in poverty and commit a crime would be forced to stay in jail longer because of their inability to pay the fine. While the government is content to say they can work it off through a provincial program, the government fails to understand that not every province has equivalent programs. We would be creating further disparities depending on the province in which the offender lived.

Nobody in the Liberal Party is suggesting that criminals should not be held accountable for their actions. What we are saying is that it is the role of the judges to decide how criminals should be sentenced for their crimes. Judges should be trusted to do that. An independent judiciary is at the core of a democracy. To tamper with the independence of the judiciary, whether it is to impose decisions on judges or set mandatory minimums means that the government does not accept an independent judiciary.

The government seems to be convinced that locking away more people in jail is the solution to both poverty and crime. It is not surprising, however, because it also sees prison as the answer to mental health and homelessness.

The point is that not only are we continuing this vicious cycle of poverty and disadvantage rather than addressing it, but the whole model is flawed.

Let us look at the victim. Remember that the fine is supposed to be collected when someone is found guilty, but what about those instances when, for various reasons, a person is not found guilty or the case is thrown out because the police did not follow the right procedure? All of those things occur. What happens when the victim does not want to press charges, as in the case of rape, because the victim does not want to face the accused or does not want to go to court? Will the government step up to the bar, pardon the pun, and actually do something for the victim? If there is no fine imposed or if there is no one to pay the fine, what happens? This is not helping the victim at all. All these points give rise to situations where there is a victim of crime but no victim surcharge is being imposed.

What about the family of someone who is attacked by a stranger who was never caught? Should we not ensure that family is funded and has available services to help with the healing process? The mandatory imposition of a fine is laughable. At the same time, the government speaks of hate crimes being a victimless crime and therefore, no one needs assistance because there was no victim.

The point is that we must trust our judges to impose a fine where it is warranted. The language of the existing provision in the Criminal Code should be changed if it is inadequate, but judges should not be stripped of their discretion, doubling the fine and providing no way for some offenders to work it off.

As I said earlier, the provinces are not equal in their ability to meet the provisions that have been placed in the bill. For instance, in British Columbia a $100 surcharge would help, but in the north and in rural areas where more money is needed to sustain programs for victims, that $100 may not be enough.

The government is actually shirking its role. It does not want to play a role in helping the victims of crime. It wants to lay it all on the shoulders of the “offender” who may or may not be found.

The point is that the very arbitrariness of the increase is the flaw. A 100% surcharge gets something different in every province as victims do not all have the same needs. We need a consistent level of support for victims. The government cannot shirk that responsibility.

How was the fine calculated? It is not based on evidence. It is arbitrary. We could be back here to increase it in two years and again in five years as time moves along. Committed direct funding from the government is a way to help victims deal with the effects of crime. This dithering by the federal government does not cut it.

I want to speak about the aboriginal people who tend to be over-represented in our prison systems. Aboriginal people make up 17% of our prison population but only 2.7% of the Canadian population. In fact, some people say that aboriginal people make up 30% of the prison population. However, the Conservative government is not talking about aboriginal justice here. Where is its plan to assist aboriginal offenders? Where is its plan to combat the cycle of homelessness, poverty, lack of education, unemployment and discrimination? Where is its plan for culturally sensitive sentencing, or will the government continue with a one-size-fits-all approach like Bill C-37?

The government does not seem to care at all about a person's inability to pay or circumstances that drive someone to commit a crime. It does not seem to want to talk about the prevention of crime. It does not seem to want to talk about the rehabilitation of offenders and helping them integrate back into society. None of that is here. It is just about punishment, having offenders pay fines and not even allowing them to work it off if they cannot afford to pay the fines.

Where is the youth criminal justice strategy in here? We do not see any. What about the soccer fields and after-school programs that would prevent young people from getting into crime? Why are we treating youngsters like hardened criminals and locking them up in jail where they will only learn how to become better criminals with no hope of joining society again?

Crime is a complex puzzle. No one disputes that victims of crime need support and assistance, but this one-size-fits-all focus on punishment is not effective. It is flawed.

Taking away the judges' discretion is flawed. Interfering with the independent judiciary is non-democratic. In fact, the Conservative member for Kootenay—Columbia is saying that if offenders do not want to pay the victim surcharge, they should not commit crimes. That is a fairly simple way of dealing with things, assuming that criminals go on Google every day to find out what the Criminal Code says the sentence would be if they commit a crime. If punishment were a deterrent for crime, the jails in the United States would be empty, but they are not. People do not check and see what the Criminal Code says before they commit a crime. This is a misunderstanding that drives an ideology of mandatory minimums and throwing people in jail. As I said, it is as if the government thinks that criminals spend their time searching on Google to see what the Criminal Code has to say.

Deterrence is not achieved by this surcharge, nor does it help the victims. It is not achieved through mandatory minimums. True deterrence, although the Conservatives would never admit it, is about giving people options and providing them with the ability to start living reasonable lives, to get out of poverty, to get an education and to be rehabilitated.

The Liberals will not be supporting the bill.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Mr. Speaker, I thank the member for her speech.

I would like to go back to a comment by one of her colleagues, a member of her party.

The member has a great deal of experience in the House. I am certain that she knows that just because a party supports a bill at second reading does not mean that it agrees with the bill in its entirety. The party wants the bill to be examined by a committee, which will hear from experts and have the opportunity to make minor and major amendments.

I am very surprised by the hypocritical comments to the effect that by supporting Bill C-37 the NDP opposes the discretionary power of judges. The NDP does not support this bill, but it does support referring it to committee.

I would like to give the member the opportunity to comment on the absurd remarks made by her colleague. Perhaps she has a concrete example of a bill introduced by the NDP that clearly undermines judicial discretion, but that would surprise me. The NDP believes that judicial discretion is important.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, the member is right. I have been here for a long time and I have not seen in my time in Parliament a majority government that does not listen to witnesses at committee.

I think the hon. member knows in her own short experience that with this particular government, it does not matter what witnesses say and it does not matter what amendments are made, because amendments are not going to happen. To send the bill to committee and hope it will be changed is the ultimate in Pollyanna thinking. We know it will not happen. We know it has not happened with that majority government.

Let us just say no, put our cards on the table and say that we do not support it.