Increasing Offenders' Accountability for Victims Act

An Act to amend the Criminal Code

This bill was last introduced in the 41st Parliament, 1st Session, which ended in September 2013.

Sponsor

Rob Nicholson  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

Dec. 12, 2012 Passed That the Bill be now read a third time and do pass.
Oct. 16, 2012 Passed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.
Oct. 16, 2012 Passed That this question be now put.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 3:40 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I thank the hon. member for his speech. One of the concerns heard in committee was that, for many victims, the compensation program varies from province to province. I heard the response the parliamentary secretary gave earlier to the other hon. member, to the effect that the government respects the provinces' jurisdiction.

However, that is still problematic. Indeed, we heard the mother of the victim of a crime committed in Newfoundland and Labrador, who lives in Alberta. That is a rather complex system.

Therefore, I am wondering if we can get the government's assurance that a serious conversation will take place with provincial counterparts to try to have similar systems. We are all respectful of provincial jurisdictions, but it is also important to be entitled to the same services from coast to coast to coast.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 3:40 p.m.
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Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

Mr. Speaker, that is a good point. Of course, as regards discussions, there is a federal ombudsman for victims of criminal acts to whom one can refer or make comments and ask for some consistency in the provision of services. Also, all our counterparts, all the provincial justice ministers, meet regularly. They have the responsibility to develop best practices, based on the needs of their respective provinces.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 3:40 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

My colleagues are applauding, and I thank them on behalf of the victims. It has long been said that the New Democratic Party is not against victims, like it or not; it is on the contrary in favour of a fair, logical and intelligent system. However, sometimes that is not entirely the case with respect to the bills introduced by the present government. I would certainly not say that this bill is perfect, since it will occasion enormous disappointment. While we support it in its current form—it is difficult to be against virtue, as my mother would say—we do have some concerns: among other things, as to whether our colleagues opposite really listened to the 14 witnesses who testified before the committee.

I take this opportunity to digress in order to thank those who served on the committee studying this bill. It may not be the case with regard to Bill C-279, which did not end well and came to an extremely disappointing conclusion, but with respect to Bill C-37, solid work was done in committee. Some extremely worthwhile witnesses explained their concerns, and the issues they had experienced.

They also highlighted what the Parliamentary Secretary to the Minister of Justice explained to us just now: that in Canada, victims of crime are unfortunately left to themselves in many cases, in a manner that differs from province to province or from territory to territory. They often spend fortunes trying to obtain reparation, which they will never receive in full, and we are all very much aware of that. They will never obtain full reparation for the plain and simple reason that when you have been the victim of a rape, for example, or a family member has been killed or kidnapped, compensation is an impossibility. Nothing can compensate for a crime of that sort. There is simply no way to achieve it. It may be possible to offer help, but that is all, and that is what a bill like this tries to do.

There is a problem with the victim surcharge which has existed since it was established in the late 1980s. The Criminal Code takes the approach that a sum can be added to the sentence. We have now doubled that sum, but I will not talk about it, because enough people have done so, and others will do so. After all these years, moreover, I agree that it is not the end of the world. However, that has been the problem from the beginning, and that is why we agreed to refer the bill to committee, so that we could actually hear some witnesses on the subject.

My question concerns judicial discretion. My colleague, the member for Edmonton—Strathcona, posed the same question a short time ago. This is somewhat worrying, because the government is constantly withdrawing the discretionary component of judges’ authority. Nevertheless—I shall come back to this—I am reassured, not 100%, but rather 98%, because the Canadian judicial system will make up for Conservative mismanagement. That is more or less how I see it. It is sad to have to rely on the courts, but at the same time, the importance of victims weighed more heavily in the balance for me, and I believe the same is true of the NDP caucus and all members of this House.

However, I am not necessarily proud to see that Canadian judges have imposed a victim surcharge in only a very small percentage of cases since the system was introduced. And yet this system was designed to help victims. If it had been because the accused or the convicted individual was unable to pay, as the Criminal Code provided, that would have been different.

The burden of proof was on the accused, who therefore had to prove to the court that the surcharge was too much and that he was unable to pay it.

We would have had extraordinary statistics on the kind of individual who appears before our courts, but, no, the judges invariably did not impose it, and did so without explanation. That is where the problem started. The provinces expected to receive some revenue from the victim surcharge. That money goes into the provinces' victims of crime compensation funds, except in the three provinces that the Parliamentary Secretary to the Minister of Justice mentioned. One morning the provinces woke up and asked where the money from the victim surcharge was.

I also agree that this should not be the only fund. In 2003, we were told that the cost of victim damages represented approximately $70 billion. That is not peanuts. However, surcharges can only put a few hundreds million dollars in the coffers. We are still a long way off.

Victims must not imagine that this is a panacea. Passing Bill C-37 will not solve all the problems in Canada so the Conservative government, that great champion of Canadian victims, can suddenly wave around its Bill C-37. That is absolutely not enough, particularly since the vast majority of provinces and territories permitted what is called community service programs.

That is the other aspect that reminds me that some people in the correctional system are unable to pay this amount. Those inmates are unable to pay this kind of surcharge; the crime they committed has nothing to do with the argument I want to make.

The people from the Department of Justice told us that the decision in R. v. Wu would continue to be applied. According to that decision by the Supreme Court of Canada, no one may be imprisoned merely on the basis of inability to pay a fine. In that case, the system is okay.

However, once again I would like to shed some light on a problem with community service programs. Some groups that came to testify before the committee during consideration of the bill are convinced that, if this bill is passed, they will suddenly be able to get compensation for their damages. However, that will not happen. In the majority of cases, the offenders will not pay and will have to do community service.

As the parliamentary secretary noted, that suited some people, because they were asked whether they would be disappointed at not receiving money if the person went into a community service program. Community service programs are not just for people who have no money, but also for anyone who can do it that way. Everyone has access to those programs, provided a program is available in the region where the request is made. Some people, not everyone, said that they would prefer to have the money.

Let me take this opportunity to say that, rather than adopt victim surcharge systems such as these ones, perhaps this brilliant law-and-order Conservative government should get with the times and follow the example of various countries on this magnificent planet that are tending toward restorative justice

I see the member who introduced the bill on this matter and an example springs to mind. The case of a person who commits a crime by destroying national monuments is a very sad one. Which is harder for that person, paying $100 out of his pocket or appearing in front of a group of legion members and having to apologize?

Let me take a brief trip back to my childhood. When my parents punished me and sent me to my room, it made little difference to me. It gave me some peace and quiet. However, when my parents told me to go and apologize to the person I had offended, I admit that was the worst punishment for me because being compelled to admit you have made a mistake is, in a way, a form of humiliation.

Countries a little more in tune with the reality of what punishment should be, should head in that direction. They should make someone who has done something realize what he has done so that he does not do it again. The advice I have for the members opposite is to realize that always pulling out a stick and slapping people's hands does not accomplish much and that it is time to start considering other options.

All that to say that, in the context of Bill C-37, yes, it bothers me that judges are no longer granted this discretion. However, let me tell all my colleagues in this House, including my colleague from Saanich—Gulf Islands, that they were not using that discretion properly in any case. By that I mean that we have no idea why they granted an exemption to virtually everyone who appeared in court. It was as though the victim surcharge did not exist. To my mind, that is as intolerable as saying that a form of discretion is being taken away.

However, R. v. Wu has nevertheless had an impact. It is clear from our study in committee that the provinces and territories do not automatically impose a term of imprisonment because an individual does not pay, unless someone does it on purpose. Some will withhold driver's licences or documents from certain provinces. Some colleagues here will tell me that the most disadvantaged people we deal with do not have cars. I agree: they do not have cars, and we therefore cannot withhold their licence. However, they have other possessions that make it possible for us to make arrangements with them. The time is past when people were imprisoned for the fun of it, because they did not pay their fines.

I am repeating this because the message needs to be sent. We know that on Christmas Eve, the members opposite will be walking around saying that they have again saved the lives of X number of victims. I am disappointed to think that we have raised people's hopes and we are making them believe things that are not true. We cannot claim victory for the victims too quickly, because we have to be sure that the money that will be collected in the victim surcharge account is paid into the provincial and territorial accounts so it can be used and distributed to victims’ groups.

I do not have much time left, but still, I would like to take advantage of this opportunity. At the Standing Committee on Justice, we have seen just about everything. We are revamping Canada's criminal justice system, which prompts many different questions and leaves many of them unanswered. We do not have the time to conduct all of our studies in depth. With regard to Bill C-10, we will probably be told by the courts that it was all done much too quickly, in some respects. It is the government that will have to take the fall for this.

Regarding Bill C-37, I am reasonably satisfied just the same, as almost all of the witnesses we wanted to hear from were able to appear. Regarding the witnesses we were unable to hear, it was not because we were prevented from hearing them, but rather because they were not able to travel. I know that the bill is not perfect and that it poses the same problems for my colleagues in the Canadian Bar Association and the Barreau du Québec as it does for us. This is discouraging, because we have the time. There have been no changes for 30 years, and before any adjustments are made, sometimes it is worthwhile to spend a little more time and try to get it right.

I enjoy working with my colleague from Delta—Richmond East, the government's spokesperson on the committee. I enjoy our discussions and this new procedure, even though it was a bit of a flop last week, which I am going to say was because everyone was tired. I hope we all come back to the committee in an excellent mood.

I would like to urge everyone to support this bill for the victims. We in the NDP made promises. We have of course heard the recommendations from the Ombudsman for Victims of Crime. That was one of the planks in our platform during the last election campaign. We will present it better when we are in power in 2015. We will make sure to compensate the victims and fill in all the gaps in what is called justice in Canada.

I would like to end by thanking my NDP colleagues. I thank the deputy justice critic, my colleague from Toronto—Danforth, my colleague from Brome—Missisquoi and my colleague from Beauport—Limoilou for their excellent work on the committee. It was a huge endeavour, and their approach was serious and scrupulous, as required by this justice issue. Mr. Speaker, you know this file, because you were the justice critic for many long years and you mentored many of us here in the House. Frequently, on this issue, we try to rise above partisan politics, because people's lives are at stake and the issue is justice.

I would be remiss if I did not thank the people on the committee, as well as the committee clerk, Jean-François Pagé, and his assistants, and especially the people from the Library of Parliament, who often work in the shadows. We never say it often enough, but they do thorough, non-partisan work at the level of seasoned university researchers. Their work makes it possible for us to meet the various witnesses who come before us in committee and to be knowledgeable about the topic.

I encourage everyone who is interested in victim surcharges and the current programs in the various provinces and territories to read the two documents that were written for the study of Bill C-37.

I would of course like to thank the people on my team—I call them “Team Gatineau”—for all the support they have given me in 2012.

On that note, I would like to wish everyone happy holidays.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4 p.m.
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Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Mr. Speaker, I first want to thank my colleague for what I know are extraordinarily generous comments from her about a government bill and for her support of the bill. I also want to commend her and her mother for coming up with the principle that it is difficult to oppose virtue. The first thing I thought of when I heard my colleague say so was to invite her to cross the floor, to come over to this side and put an end to all of her difficulties. She would no longer have to oppose virtue, if she did that. Failing that, if she feels she cannot cross the floor, I hope she will spread that philosophy to her colleagues on the opposition side.

I want to take a moment to brag about my home town of Kitchener, where Judge Kirkpatrick was the first judge to invent the community service order through what he called the rehabilitative remand. It has now spread across Canada. Mark Yantzi of Kitchener was the first person to invent the victim offender reconciliation program, which has now spread across Canada. I am very proud to represent my community and a party that has the right balance of prevention, rehabilitation and judicial deterrence where necessary.

I would like to ask my colleague what she found to be the most appealing provision in this excellent bill.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, first of all, I would like to settle the issue raised by my colleague with regard to my crossing the floor. First of all, my mother would refuse to speak to me if I were to do that. I became a New Democrat member of Parliament not by crossing the floor of the House of Commons, but by giving the matter serious and thorough consideration at a time when I was not a member of this House. This is a very different thing from crossing the floor of the House. My mother simply said that she would accept my decision, although she did say that she would disown me if I ever decided to join the Conservatives. I understood what she meant. That will not happen. There is no problem in that regard.

What I thought was the best thing about the bill, which does not have many clauses, was the title. I am joking with my colleague from Kitchener Centre.

In my opinion, it is high time that the surcharges were increased, because they have been at the same level for a number of years. Despite the fact that the bill eliminates the judge's discretion to not impose the victim surcharge on an offender who can prove that he is unable to pay, it does make offenders eligible for fine option programs, something it did not do before.

The judge's discretion has been removed, but access to fine option programs makes the victim surcharge subject to existing provincial and territorial legislation. If this had not been the case, we would have found it impossible to support the bill. With the implementation of this kind of measure, together with the ruling in R. v. Wu, I would be extremely surprised if anyone who is unable to pay the victim surcharge finds himself in jail.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:05 p.m.
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Liberal

Kevin Lamoureux Liberal Winnipeg North, MB

Mr. Speaker, the member referred to the positive impact on a victim from meeting with the person who might have violated him or her in whatever manner.

I chaired a youth justice committee for a number of years, where we had the principle of restorative justice. That principle we do not hear very much about inside the House. However, it is a valuable tool and something that we need to look at and expand as much as possible to the point where the person who committed the offence will enter the same room as the victim—if the latter wants to do so. A great deal of satisfaction comes out of that as a direct result.

Could my colleague expand on the role of restorative justice? I ask because we have talked a lot about victims' services in this debate but I do not think we have heard enough about restorative justice.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:05 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

Quite so, Mr. Speaker, and that is why I referred to the concept. I know that it is increasingly popular in Quebec. As I said in my speech, some people are genuinely anxious to improve the situation.

The Conservatives often tell us that we are against victims, but that is not the case, because we want there to be no more victims. People are working hard to find ways to achieve prevention. This sometimes means working harder to fight poverty. Many studies of crime prove this, and there are specialists who spend years studying the issue, using identikit portraits. Once you have the information and you know what works and what does not work, you have to work accordingly.

In French we refer to justice réparatrice to translate “restorative justice”. The word is apt: restorative justice effects a “repair”. That does not mean that every victim necessarily wants to meet their assailant. However, there can be ways for a person to repay society for the crime they have committed so that it is more beneficial than just taking the money and putting it somewhere. Yes, it is tough. On the other hand, such programs must not be allowed to serve just to let people off the hook, like the victim surcharge.

In my riding, Gatineau, as in every riding, community organizations are struggling to deal with the increasing withdrawal from programs by the various levels of government. There are absolutely monumental gaps. These people are working miracles with next to nothing. The victim surcharge must not become the only solution for victims. That is not what it is. Let us try to find a happy medium in all this.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:10 p.m.
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NDP

Pierre Jacob NDP Brome—Missisquoi, QC

Mr. Speaker, I thank my distinguished colleague for her very persuasive speech, and I also thank the member for Gatineau, who works very hard as justice critic and vice-chair of the Standing Committee on Justice and Human Rights.

That being said, I understand from her speech that the NDP firmly supports victims of crime and their families and respects the recommendations of the Federal Ombudsman for Victims of Crime. The NDP recognizes the importance of supporting the discretion granted to judges.

The Conservatives are using this bill to show that they are the protectors of victims and families, but would they not protect them by engaging in genuine prevention? What does it mean to engage in “genuine prevention” to reduce the number of potential crime victims? Hiring more police? Strengthening the social fabric and all of that? I will let the member for Gatineau continue.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:10 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, as I said earlier, my colleague from Brome—Missisquoi brings an absolutely extraordinary background to this subject. He has done a lot of work with young people to try to lower the crime rate. He has made a start on listing many of the solutions.

Just to come back to his introduction, I will say that we do support victims; we support the ombudsman’s recommendations. We would have liked to retain that discretion, if it had been properly used by the courts, which in this case, as a rare exception, perhaps did not use it advisedly. If that is the case—since I do not want to be accused of criticizing the courts—we do not know why. There was a section in the Criminal Code, however, that said that judges had to state why they were not imposing a victim surcharge.

On the question of lowering the crime rate, there is so much to be said. As we know, it is often said that poverty can sometimes lead some people to commit certain crimes, such as some kinds of theft. In the case of certain kinds of abuse, whether it be sexual violence or discrimination, a lot of education still needs to be done.

Last week, we had some trouble and the committee went right off the rails concerning Bill C-279. This was a direct result of a failure to understand the charter and human rights. We saw supposedly educated adults dealing with this problem. We can imagine what happens when some people in society do not have the benefit of all the resources that are available to us. I will say no more, because there are other people who would like to speak.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:10 p.m.
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Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, I am pleased to rise to speak to Bill C-37 and the question of the victim surcharge. If passed, this legislation will double the amount of the federal victim surcharge and will also remove the possibility of judicial discretion to waive the surcharge in cases where it will result in undue hardship on an offender or on his or her dependants.

I will begin by reiterating that everyone in the House supports the funding of victim services. There is no debate on this issue of indemnification. The policy question is how best to do so and even a cursory analysis of Bill C-37 reflects a deeply flawed policy approach that will have prejudicial fallout, particularly for the most vulnerable of Canadians.

Before addressing my particular concerns over the policy behind this legislation, I will make a brief mention of alternatives. The premise of the government at first with respect to this bill was that victim services needed increased funding from the federal government. We on this side of the House do not disagree. We support the direct funding of such efforts through grant making and the like. The issue is that the question, “should more money go to this?” is not the question that is before us now.

Just last week, the House voted on budget Bill C-45. Canadians may be interested to know that this legislation does not use the word “victim” even once. This is perhaps unsurprising since the budget speech did not use the word “victim” once. My point here is not to suggest that the government does not fund victim services. The point is that if the objective were truly to ensure adequate funding for such services, it would seem that the budget would be the most logical place in which to show support for this notion and through which to disburse funds on a matter that the Conservatives consistently characterize as a priority.

Regrettably, the government has not chosen to make direct funding of victim services part of its budget legislation. Instead, it has proposed to increase funding through the doubling of the surcharge amount.

Yet, as was noted at second reading, and as was further elucidated in the witness testimony before the Standing Committee on Justice and Human Rights, the doubling is not based on adequate consultations with relevant stakeholders and, in particular, provincial attorneys general. Indeed, the government has not provided any evidence-based foundation that the doubling of the surcharge is sufficient to provide sustainable services for victims of crime in all provinces and territories, which would be something that we would all seek to see.

During our first committee meeting, I raised this concern with the Minister of Justice, noting that when I was minister of justice in 2005, the then attorney general of Manitoba had recommended that the surcharge amount be raised from 15% of any fine imposed to 20%, an increase of only 5%. Recall that the bill before us today would double the surcharge amount in all cases. While I am well aware that circumstances can be expected to have changed since 2005, as has the attorney general of Manitoba, it seemed more than appropriate to ask the minister what input he had received from his provincial counterparts in this regard.

The minister did not provide specifics regarding amounts and percentages but did state, in response to a similar question from a colleague:

Again, I believe this will be well received. These funds will go straight into provincial coffers, straight into the programs they have to assist victims of crime. My prediction is that this will be very well received.

Mr. Speaker, the minister's projections, to paraphrase him, are not an adequate consultation process.

Did he raise this issue with his provincial counterparts? When did he discuss it with the Quebec justice minister? When did he raise it with Nunavut's justice minister?

There is no need to be minister or clairvoyant to understand that these two jurisdictions have different needs. What did the provincial ministers want to know? How are these differences reflected in the bill?

Let us be clear. We know there are disparities. For the year 2006, the most recent year for which such statistics are available, the actual revenue produced by the federal surcharge varied drastically by region, with Quebec taking in approximately $2.2 million in surcharge revenue and Ontario taking in approximately $1.2 million. How do we account for this? How would this legislation take this into account? Indeed, I am returning to my primary question here: How was the determination made to double the surcharge? What was the evidence-based foundation for this?

On this point, I recently received an email from the former ombudsman for victims of crime, Mr. Steve Sullivan, who expressed concern to me with regard to the committee testimony at the Standing Committee on Justice and Human Rights of Ms. Susan O'Sullivan, the current Federal Ombudsman for Victims of Crime.

Mr. Sullivan was troubled by Ms. O’Sullivan’s contention that her recommendation to double the surcharge amount was itself based on the recommendation of her predecessor Mr. Sullivan. However, Mr. Sullivan stressed that in 2009, during his tenure as ombudsman, he in fact recommended no such thing. Although at the time he supported removing the undue hardship defence, he stressed that he “thought then, as I do now, that it was not appropriate to double fines if judges were waiving fines because of their belief...that offenders could not pay existing fines”. I only raise this to correct the record on behalf of Mr. Sullivan.

At the risk of repeating a recurring theme that I addressed during second reading, the question was raised as to when we would next be back in Parliament to raise the surcharge again. Will this be an annual parliamentary occurrence? Perhaps some provinces view the amount received currently as being sufficient. Without adequate consultation on this legislation, there is no good way to predict, which the minister said hew as prepared to do so, just how soon we will be back here debating it again and whether or not it is having a beneficial impact in the way the government so envisages.

Beyond the problematic approach to legislating without accounting for the different needs of individual provinces and territories, this legislation is seriously flawed in its presupposition that the surcharge ought to be the primary funding source in the interests of victims. Simply put, the surcharge is only imposed upon conviction. The result is that in situations where no suspect is apprehended or where no conviction is obtained because of problems with the evidence, no surcharge will ever be imposed.

There is an example I have mentioned before, but I believe it bears repeating. One of the most common crimes in our country, sexual assault, is one of the least likely to result in a conviction. Indeed, in many cases of sexual assault charges are not even pressed for a variety of reasons, including that these victims are not necessarily comfortable facing their attacker in open court. In these instances, no surcharge will be collected. How does the government propose to help these victims of crime through the mandatory collection of a surcharge if there may never be a conviction secured.

Even if there had been adequate consultation with all provinces and territories and even if this were reflected in the legislation, there would still be good reason to oppose the bill given that it removes the judicial discretion of judges to consider the undue hardship that imposing the surcharge may have on individual defenders or their dependents. Indeed, this aspect of the bill is particularly problematic and counterproductive.

As was observed in witness testimony before our committee by Catherine Latimer of the John Howard Society, this change would result in harsh financial consequences for the many marginalized members of our society: the poor, the mentally ill and low income Canadians, as well as minorities such as aboriginal Canadians, who are already grossly represented within the criminal justice system itself.

The problem is that serious consequences, including incarceration, can result in the failure to pay a court-ordered fine or surcharge. Indeed, the injustice and inequity of a mandatory financial penalty, absent judicial discretion to waive it based on an inability to pay, is not just a matter of my own opinion or the opinion of some Canadians. Indeed, it is the opinion of the Supreme Court of Canada, which stated in the case of R. v. Wu, “it is irrational to imprison an offender who does not have the capacity to pay [a fine] on the basis that imprisonment will force [payment]”. In that case, the court further stated, “For the impecunious offenders...imprisonment in default of payment of a fine is not an alternative punishment — he or she does not have any real choice in the matter”.

This bill puts the most vulnerable Canadians in a situation where they may have to face incarceration, not because a court has deemed jail to be the proper punishment warranted by the offence for which they have been convicted, but only because they lack the financial resources to pay the mandatory surcharge. I submit that this is prejudicial and in violation of the law as defined by our nation's highest court.

Further anticipating the consequences of this bill if it were to be adopted, we can expect it to have a disparate impact on Canadians based on their province or territory of residence. Much was made during committee of the particulars of the provincial fine option program, to which I referred briefly earlier in my remarks. Regrettably, the discussion during committee regarding these programs was particularly insufficient and demonstrated a complete lack of understanding by the government in this matter.

The government has defended the removal of judicial discretion to waive the surcharge by arguing that those who are not able to pay can take advantage of provincial fine option programs that allow for the disposal of an individual's surcharge obligation through work or community service. However, as I am sure the members in this place are by now well aware, such programs do not exist in Ontario, British Columbia or Newfoundland and Labrador. Moreover, where they do exist, their availability and eligibility vary drastically.

I would hope that my colleagues in this place would need no explanation as to why I object to legislation that affects Canadians in a discriminatory manner based on where they happen to reside without any reasonable justification.

However, what is particularly troubling was the lack of concern by some of my colleagues during the committee process in this regard. Indeed, one member, noting that the fine option program was clearly a matter of provincial competency, conceded that this was not something the federal government could delve into and went on to observe that it was sufficient that any province could use the funds from the surcharge to implement such a program and that, where no such program exists, other means for enforcing the surcharge might exist.

This line of reasoning, regrettably, entirely misses the point. It is irresponsible for us to pass legislation based on predictions and presumptions about what could happen. Furthermore, the lack of consistency between the provinces and territories in this regard is precisely what would result in a differential prejudicial impact.

The bottom line is that, depending on the specific province or territory, low-income Canadians who are simply not able to meet a surcharge obligation will find themselves disproportionately burdened merely because of financial status and area of residence. Ultimately, one may find himself or herself subject to incarceration for circumstances entirely outside his or her control. I submit that this is prejudicial, inequitable and unacceptable in a free and democratic society.

To conclude my remarks, let me summarize the reasons for my opposition to this legislation.

First, the arbitrariness of the proposed doubling of the surcharge amount must be rejected. The needs of victims vary substantially, as I mentioned, between the provinces and territories.

Second, we must permit judicial discretion and enable judges to consider the specific facts before them, in particular, on the undue hardship that may result in specific instances on either the offender or on his or her dependants.

Third, there are problematic assumptions underlying the government's approach to criminal justice, which considers after-the-fact punitive measures to be an effective means of achieving deterrence, completely ignoring the importance of preventive measures and the need to consider the relationship in various complex social factors in so far as they contribute to both crime and victimization. Indeed, one critical factor that is undeniably related to the problem of crime and recidivism is a cycle of poverty and the marginalization of particular segments of our society. Regrettably, the bill, as it now stands before us, would only exacerbate this problem.

I would like to briefly describe the amendments that I offered at committee, all of which were proposed with the intention of achieving the shared goal of providing support for victims of crime in all provinces and territories and in an effective, sustainable and non-discriminatory fashion. Regrettably, all were rejected, but I believe they deserve discussion here particularly as they may be relevant to our colleagues in the other place during their deliberations in this matter.

My first amendment would have restored the undue hardship defence as it currently exists, but would have implemented a requirement that the court record its reasons for waiving the surcharge in writing. This amendment was directly aimed at improving the surcharge enforcement rate without improperly infringing on the judiciary's authority to consider all the facts before it in a particular instance.

My second amendment would have enabled the court in a jurisdiction where no fine option program existed to suspend the requirement to pay the surcharge based on a finding that the immediate enforcement of the surcharge would result in an undue hardship on the offender or his dependents. This amendment, in line with the Supreme Court decision, would have maintained the mandatory nature of the surcharge in all instances and merely would have enabled the court to suspend the requirement to pay. The surcharge obligation would indeed remain in the event that the individual's financial status should change. Moreover, this amendment would have limited the court's discretion to waive the surcharge to only those jurisdictions where no fine option program was available.

My third amendment would have specifically addressed what I submit should be one of the underlying purposes of criminal justice policy, namely, to prevent recidivism by achieving the rehabilitation of offenders. This amendment would have provided the court with authority to waive the surcharge only in those jurisdictions where no fine option program is available and based on a finding that the requirement to immediately pay would have a negative affect on an individual's rehabilitation. Again, the surcharge obligation would remain should an individual's circumstances change.

My final amendment was intended to codify the Supreme Court of Canada's decision in Regina v. Wu, so as to ensure that no Canadian would be subject to imprisonment based on an inability to pay. To be clear, this amendment would not have interfered with the court authority to order incarceration as part of an individual's sentence when so warranted by the specific facts of the case. This amendment would have ensured that neither an individual's financial situation nor the unavailability of a fine option program in a particular jurisdiction would result in incarceration. Put simply, this amendment would have avoided the prejudicial effect of Bill C-37 while preserving its underlying purpose. Despite the fact that this principle has been clarified by the Supreme Court, my amendment was voted down.

The committee process could have produced a version of this bill that accomplished the government's intention and what I am sure is the intention of all members in this place, to ensure the support of victims of crime without prejudicing any Canadians. Regrettably, we are here today to debate the same flawed version of this bill as was sent to committee. Thus, I must oppose the bill, as it is currently written, and urge all members in the House to do the same.

In conclusion, the most effective way to support victims of crime is to propose and promote legislation that prevents victimization in the first place, that seeks to achieve rehabilitation so as to prevent recidivism upon the inevitable return of offenders back into society. Regrettably, we have yet to see justice legislation from the government focusing on prevention, rehabilitation and reintegration, and Bill C-37 would accomplish no such thing. Despite my strong support for legislation that would fund victim services programs, this bill in its current form remains ineffective and will be counterproductive, discriminatory and prejudicial. I therefore will be voting against it.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:30 p.m.
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NDP

Linda Duncan NDP Edmonton Strathcona, AB

Mr. Speaker, I understand that the member for Mount Royal is on the committee and would have heard the testimony by Dr. Irvin Waller, president, International Organization for Victim Assistance. Dr. Waller pointed out something that I took a look at when I was a chief of enforcement and worked in the environmental enforcement field.

In 1984 the United States passed an act called the Victims of Crime Act that allowed the government to go after the major corporations that violated the law in a bigger way. I wonder if the member could speak to whether he thinks it is an adequate remedy to impose $200 on a company that might bilk investors out of millions of dollars or billions of dollars, or other major corporate crimes that may cause major harm to the health and safety of Canadians.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:30 p.m.
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Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, I was present for the testimony of Dr. Irvin Waller. I thought it was an important piece of testimony before the committee. Dr. Waller went beyond the specifics of the surcharge issue to, in fact, recommend larger policy prescriptions. Those policy prescriptions were based on his own comparative studies in other jurisdictions, including, as the hon. member mentioned, that which exists in the United States, and he made particular reference to the importance of the use of the instrumentality of having corporate accountability involved in the indemnification of victim services.

I mentioned to Dr. Waller in the aftermath of his testimony that I would be meeting with him to further pursue this particular remedy and others that he suggested, as I took his testimony, as I say, to go beyond the specifics on the victim surcharge issue and to recommend broader policy proposals, which we should be bearing in mind.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:30 p.m.
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Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Mr. Speaker, I want to thank my colleague for his remarks. It is always a pleasure to listen to him. He is very articulate and, for the most part, very knowledgeable.

I wonder about one thing. He made a very impassioned argument on the fact that there are three jurisdictions in Canada that do not have a fine option program and he said if there are even only three jurisdictions in Canada where someone might go to jail for being unable to pay a fine, then there is a flaw in this legislation. The member is a former justice minister, a lawyer, and he is well experienced. I want to know if he is going to stand in the House and deny that there is provision in our law that absolutely prevents individuals from going to jail if there is a reason they cannot pay a fine. My understanding is that our law would absolutely not put individuals in jail for non-payment of a fine if in fact they have good reason for not being able to pay it.

I would like to hear the member deny that, if he can.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:30 p.m.
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Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, I am pleased that my hon. colleague found only one thing wrong with my speech and made specific reference to the fine option programs in the provinces.

We did indicate that there were three provinces that do not have it, and under the present legislation we may have a situation where we cannot come up with an option in a province that does not have it.

That was the whole question of why I said to codify the principle of the Supreme Court in the Regina v. Wu case, to make it clear that nobody would ever be incarcerated because they could not pay a fine, because the fine option program might not have been available, so that which is said to be an assumption would be made clear in the law.

That is the reason I proposed the amendment, to clarify what could end up being an uncertainty, particularly as we have removed the judicial discretion in these cases, which might have addressed and redressed such an anomaly, if it indeed occurred.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:35 p.m.
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Green

Elizabeth May Green Saanich—Gulf Islands, BC

Mr. Speaker, I want to thank my hon. friend from Mount Royal. Speaking earlier to my own amendment, I credited much of his work in the committee as inspiring efforts that I have made at report stage to try to change the bill.

What concerns me is the complete absence of judicial discretion. What I see is a pattern, one might even say a transformative pattern, of Canadian criminal law in removing judicial discretion. We see it through mandatory minimums. We see it here through mandatory application of fines.

I wonder if my friend, having had the experience of being Canada's justice minister, agrees that there is anything like a pattern occurring here in removing judicial discretion.