Bill C-37 (Historical)

Increasing Offenders' Accountability for Victims Act

An Act to amend the Criminal Code

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

Increasing Offenders' Accountability for Victims Act

[Ed Fast, Conservative, Abbotsford, BC]

moved that Bill C-37, An Act to amend the Criminal Code be concurred in at report stage.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, just before question period I was speaking to the reasons why I have grave concerns about Bill C-37. I earlier explained that this legislation is titled the increasing offenders' accountability for victims act. It is not a separate act at all. The bill would amend the Criminal Code and these amendments deal with the issue of surcharges and fines that would be paid.

These amendments to the Criminal Code would deal with only one thing, and that is the fine, a surcharge put on someone who has been convicted of a criminal offence. The current surcharge is 15% of the amount of any fine that is assessed against someone at the point of sentencing. This act would double that to 30%. That is, in and of itself, not a concern of mine. It is important that we have adequate funds for victim services.

Just to clarify for anyone who is watching, these fines do not actually go to the victims but to provinces and territories, which are supposed to use those funds for victim services. This is different from the category of restitution, where convicted individuals actually provide funds directly to the victim of their crime. This is a general pot of money that is supposed to go to victim services. I note that some of the witnesses before committee had concerns that we did not know how tightly a province or territory tracks those funds and applies them to victim services, but that is not the thrust of most of what I want to talk about today.

On top of doubling the fines from 15% to 30%, these amendments to the Criminal Code would also create an automatic $100 fine in the cases where no particular fine has been levied. Anyone guilty on summary conviction would have $100 levied, and anyone guilty of an offence punishable by indictment would have an additional fine of $200 if no fine had been levied by the judge.

This would get to a very difficult area. I am very supportive of victims of crime, as the Green Party, and I think every member in this House is supportive. We know that even a relatively small criminal event is traumatic in a victim's life, and the more severe events can be catastrophic in one's life, so it is not for lack of concern. However, one looks at the question of who is victimized in society and where all the victims are. Not all the victims are outside of our prisons; some of them are inside our prisons. This is the point I raise, based on testimony that was heard before committee on November 1 from Kim Pate, who is the executive director of the Canadian Association of Elizabeth Fry Societies.

With your permission, Mr. Speaker, I will read into the record some of what she said. She said, in part:

...the majority of the women—91% of the indigenous women in prison, 82% of women overall—have histories of physical and/or sexual abuse, talking about a victim surcharge to assist victims, when these women end up in custody largely because of the lack of resources in such other parts of the community as social services and health care, particularly mental health....

She goes on to say:

The Parliamentary Budget Officer has estimated that it costs $343,000 per year to keep one woman in federal custody, and provinces range, depending on the range of services and what is costed in, from a minimum of $30,000 of cost up to in excess of $200,000. When we're talking about those kinds of costs, to jail someone for non-payment of either a fine or a victim surcharge seems counterproductive at best.

The essence of this is to suggest that when we remove judicial discretion, which is the essence of this bill, Bill C-37 would do two things. It would double the percentage that would be paid as a victim surcharge fine, from 15% to 30%; and it would impose an automatic $100 on summary conviction and $200 at indictable offence. The other most important ingredient that this bill would do would be to completely remove judicial discretion to waive these charges if it is, in the opinion of the judge, a situation where undue hardship would be occasioned due to the circumstances of the accused.

Our current Criminal Code includes these words under subsection 737.(5):

When the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender from the [surcharge].....

This judicial discretion would be completely removed under this act. The only judicial discretion that would be allowed is judicial discretion to increase the fine.

However, we need the ability to look at the accused and wonder if they, in the circumstances of their lives, have been victims of crime themselves. I think of the case of Ashley Smith, for example. All of us who watched what happened to that young woman recognized that she was less the actor in a criminal act and more, through a series of horrific errors, a victim of incarceration and the impact from incarceration that ultimately led to her death. Had someone in her circumstances—and it would have been a much better circumstance—been released from prison and then at the same time been told she still had to pay that fine, where would she find the resources? How would she go on? Would she then end up having a counterproductive result, as the Elizabeth Fry Society says to us?

I want to close with the advice of the Canadian Bar Association. It says:

In our view, the proposed changes to increase victim fine surcharges beyond the reach of a greater number of people will lead to more defaults and more incarceration of the poor, and prevent judges from using their discretion to ensure a just result.

This legislation does not meet its objectives. Those who are victims of crimes should have access to adequate resources, but this is not the way to go about it.

The House resumed consideration of Bill C-37, An Act to amend the Criminal Code, as reported (without amendment) from the committee, and of Motion No. 1.

Motions in amendment

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, in speaking to Bill C-37 at report stage, I propose to speak to the portions and the importance of providing support for victims in my first three minutes and then return in my second period, of seven minutes, to the problems I have with this bill.

Overall, I think all of us will agree that victim services provided by provinces and territories need to be expanded and improved. The title of this bill, increasing offenders' accountability for victims' act, may gild the lily somewhat. This is of course a victim surcharge, which is applied at the time of sentencing. However, I completely concur with the words of Sue O'Sullivan, the Federal Ombudsman for Victims of Crime, in her most recent report in February of this year, “Shifting the Conversation”, that we do need to substantially improve services to victims in this country. It was her recommendation that led to much of this bill.

One of the areas where we particularly need to help victims is not one that comes up in this legislation, but it is a move that is supported by the Federal Ombudsman for Victims of Crime, and it is one that I want to highlight in my brief opening statement.

I want to highlight it because members on all sides of this House should get behind a measure that we desperately need, and that was encapsulated in something called Lindsey's law, which has not been brought forward yet. It actually relates to a tragic circumstance that happened to one of my constituents. The daughter of my constituent, Judy Peterson, went missing 20 years ago this year. My constituent has never been able to find out what happened to Lindsey, but it has led her on a crusade to find a way to create a database for the DNA of missing persons that could be cross-referenced to crime scenes. Everybody involved in victim services, whom I can find, thinks this is a worthy effort.

In fact, we can go back into the records of anytime the House of Commons has dealt with it. The House of Commons Standing Committee on Public Safety and National Security, in 2009, looked at this issue of a DNA identification act and supported it. It was also supported in the Senate Standing Committee on Legal and Constitutional Affairs. Unfortunately, to this point it has not been brought into law. I should mention as well that even more recently the police chiefs of this country, when they were meeting in Nova Scotia in August of this year, confirmed that they believe we need to create a database for the DNA of missing persons to be cross-referenced to crime scenes. This would be of enormous value to victims, and yet it is missing in this bill.

I will return to the subject of Bill C-37 after question period.

Increasing Offenders' Accountability for Victims Act

[The Acting Speaker, Bruce Stanton]

There is one motion in amendment standing on the notice paper for the report stage of Bill C-37. Motion No. 1 will be debated and voted upon.

The House proceeded to the consideration of Bill C-37, An Act to amend the Criminal Code, as reported (without amendment) from the committee.

Business of the House

[Gordon O'Connor, Conservative, Minister of State and Chief Government Whip]

Mr. Speaker, there have been consultations and I believe you would find agreement in the House for the following motion:

That, notwithstanding any standing order or usual practice of the House, the third reading stage of Bill C-37, an act to amend the Criminal Code, may be taken up in the same sitting during which the report stage of the said bill is disposed of.

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

Mr. Speaker, I want to start by thanking everyone involved in supporting us as members of Parliament in Tuesday’s voting. Despite all of the amendments at committee and in the House, the balance of the government’s 2012 economic action plan will become law shortly.

This afternoon, the House will resume consideration of second reading of Bill C-15, the Strengthening Military Justice in the Defence of Canada Act. Once that has concluded, we will turn to report stage of Bill C-37, the Increasing Offenders' Accountability for Victims Act, Bill C-42, the Enhancing Royal Canadian Mounted Police Accountability Act, and Bill C-43, the Faster Removal of Foreign Criminals Act.

We will continue working on these bills tomorrow.

Monday shall be the seventh allotted day, which goes to the New Democrats. This gives the official opposition one last opportunity before the new year to lay out its plans and schemes for a $21.5 billion job-killing carbon tax that will raise the price of everything.

For the rest of the week, I hope to advance a lot of legislation that continues to sit on the order paper. In addition to the bills I mentioned already, we will also consider Bill C-48, the technical tax amendments act, 2012; Bill S-8, the safe drinking water for first nations act; Bill S-2, the family homes on reserves and matrimonial interests or rights act; Bill S-6, the first nations elections act; Bill S-10, the prohibiting cluster munitions act; Bill C-49, the Canadian museum of history act; Bill C-17, the Air Canada and its associates act; and Bill S-7, the combating terrorism act, once that bill has been reported back from committee next week, which I anticipate.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Thank you very much, Mr. Chair. I'm here before you today to answer any questions regarding the items in supplementary estimates (B).

Mr. Chairman, among my responsibilities is ensuring that our justice system operates in a transparent and efficient manner. In my dual role as Minister of Justice and Attorney General of Canada, I'm responsible for a number of organizations under what is known as the justice portfolio, notably the Department of Justice itself, the Canadian Human Rights Commission, the Canadian Human Rights Tribunal, the Office of the Commissioner for Federal Judicial Affairs, the Office of the Information Commissioner of Canada, the Office of the Privacy Commissioner, the Supreme Court of Canada, the Courts Administration Service, and the Public Prosecution Service of Canada, or the PPSC.

Our government, as you know, has been working to ensure that our justice system continues to evolve as our society changes so that Canadians can continue to be proud of it. We work closely in law enforcement with our partners in the provinces and territories and other stakeholder groups to better align the justice system to meet the needs and expectations of Canadians and to ensure that victims have a greater voice within it.

Our government continues to pursue criminal law reforms to better protect public safety. Most recently, with the coming into force of all components of the Safe Streets and Communities Act, we are targeting sexual predators who exploit our children; ending the use of conditional or house arrest for serious, violent, and property crimes; creating tougher sentences for criminal activities that involve illicit drugs; and protecting society from violent and repeat young offenders.

We're also responding to the concerns of crime victims by proposing in Bill C-37 to increase offender accountability by doubling the victim surcharge and making it mandatory in all cases.

Our measures will continue to increase the confidence of Canadians in our criminal justice system. The items that the Department of Justice has submitted to be tabled under supplementary estimates (B) will further our work toward protecting Canadians and ensuring the safety of our streets and communities.

Mr. Chairman, you will note that the Department of Justice net increase is $22.7 million, comprising $1.1 million in vote 1 and $21.6 million in vote 5.

One major expenditure is the renewal and the continuation of the funding for the aboriginal justice strategy. Over the past 20 years, the aboriginal justice strategy has been an effective and culturally relevant alternative to the main street justice system for aboriginal offenders, delivered in cooperation with police, judges, and counsel. This strategy assists in reducing crime and helps to provide alternatives to incarceration for less serious crimes in appropriate circumstances. We recognize that these programs do make a difference by helping to steer aboriginal people away from crime and helping put an end to a cycle of violence.

The strategy has operated on a cost-share basis with provinces and territories and has been renewed through Budget 2012. Renewing this strategy will assist in breaking the cycle of crime escalation on and off reserve in urban, rural, and northern aboriginal communities, as well as to support underserved communities by giving them the tools they need to fight crime and to help victims.

Mr. Chairman, part of our request for funding is for the delivery of immigration and refugee legal aid in the provinces and territories. While we recognize that the administration of justice, including legal aid, is a provincial responsibility, we believe that working in collaboration with our provincial and territorial partners is important to ensure a strong justice system. The funding we are requesting helps support Canada's refugee determination system to prevent delays in processes caused by adjournments and postponements. It also helps address the unique circumstances of refugee claimants, such as the need for interpreters.

In this same package of expenditure is funding for management of court ordered counsel in federal prosecutions in other jurisdictions. This arrangement helps contain costs by having the provinces and territories manage these court orders on behalf of the crown.

We are also requesting funding, Mr. Chair, to address challenges in security admissibility cases. This includes facilitating the use of information in immigration proceedings under Division 9 of the Immigration and Refugee Protection Act , as well as maintaining a list of special advocates who are authorized to deal in classified information and to assist persons involved in security certificate cases. These funds will allow these immigration proceedings to operate in a manner that will ensure the rights and freedoms of those involved in such cases.

Mr. Chair, we are also asking for funding to enhance activities pursuant to the Protecting Canada's Immigration System Act related to the cessation and vacation of refugee status in order to deter abuse of Canada's refugee protection system. It will assist the Department of Justice to provide legal services, including advisory and litigation services, on a broad range of issues to the Canada Border Services Agency and Citizenship and Immigration Canada.

Mr. Chair, the supplementary estimates also indicate a net decrease of approximately $700,000. This represents transfers of funds to the Office of the Director of Public Prosecutions to support the work of crown witness coordinators who work in the northern offices of the Public Prosecution Service of Canada under victims of crime initiatives in the territories. Funds are also being transferred to fulfill salary adjustments under the collective agreements for staff who provide internal services for the Public Prosecution Service.

I would like to thank you and your committee members for the important work you do and for giving me this opportunity to make some opening remarks.

The funding that the Justice portfolio has received brings results for Canadians, and I will do my utmost to ensure these funds will continue to be spent wisely.

Thank you. I am now prepared for questions.

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

Mr. Speaker, I will first wish my former Liberal counterpart, the hon. member for Westmount—Ville-Marie, well on his newest mission.

Yesterday was probably an auspicious day for the former astronaut to launch a Liberal leadership campaign. A member of my staff has told me that November 28 was Red Planet Day. While the member's ideas and proposals will no doubt be well suited for the red party, it is yet to be determined whether they will actually be better suited for Mars or for Earth. We will wait and see.

The hon. member for Papineau might want to be aware of the House leader bump. My first NDP counterpart after the election now resides in Stornoway. Meanwhile, I want to welcome and congratulate the new Liberal House leader, the hon. member for Beauséjour. I look forward to continuing the very positive relationship that I enjoyed working together with his predecessor. I genuinely and sincerely wish his predecessor the best of luck.

I am sure that the new House leader will be keen to hear that we will resume the report stage debate on Bill C-45, the jobs and growth act, 2012, this afternoon.

After almost 4,600 votes in the House and committee on our 2012 economic action plan, I am pleased to say that we are in the home stretch of implementing our budget for this year.

Canadians will soon see important measures such the hiring credit for small business extended, greater tax relief for investing in clean energy, and strengthened registered disability savings plan rules.

To the great chagrin of the New Democrats no doubt, Canadians will still not see within that budget a $21.5 billion job killing carbon tax or the $6 billion GST tax grab that I know they wish to see implemented. It does not matter how many hundreds of amendments they put forward, we simply will not accede to their tax and spend initiatives.

The House will consider Bill C-45 on Monday, Tuesday and Wednesday next week.

We will resume second reading debate on Bill S-9, the nuclear terrorism act, tomorrow. We will get back to second reading of Bill C-15, the strengthening military justice in the defence of Canada act, if we have time.

On Thursday and Friday next week, we will work through a number of bills before the House, including: Bill C-43, the faster removal of foreign criminals act, which was reported back from committee this morning; Bill C-37, the increasing offenders' accountability for victims act; Bill S-7, the combating terrorism act, should it be reported back from committee; and the other bills I have mentioned, if we have not had a chance to wrap up those debates.

Finally, for the benefit of the House and particularly committees meeting on the supplementary estimates, I am planning for the last supply day of this fall to be on Monday, December 10. I expect that I will get back to the House next week at some point to designate that date formally.

Justice and Human Rights

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 14th report of the Standing Committee on Justice and Human Rights in relation to Bill C-37, an act to amend the Criminal Code.

The committee has studied the bill and has decided to report the bill back to the House without amendment.

[The Chair, Conservative, Dave MacKenzie]

Bill C-37 amends the Criminal Code by, among other changes, repealing subsections 737(5), 737(6), and 737(10). This amendment proposes to replace subsection 37(10) with a text similar to the current Criminal Code text, where the effect of the replacement would be to negate the repeal of the subsections. As House of Commons Procedure and Practice second edition, states on page 766:

An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.

In my opinion, the reinstatement of a key element being repealed is contrary to the principle of Bill C-37 and is therefore inadmissible.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

The days we've spent studying Bill C-37 have been extremely informative. Some concerns were raised at second reading. After hearing from various witnesses, we can see that there is some basis for those concerns. Ms. Morency's answers about the application of the decision in R. v. Wu may alleviate those concerns in part. Be that as it may, we see that, despite being set out in the Criminal Code already, the surcharge is not imposed in a large enough number of cases—I wouldn't say 80% or 85%, or even 75% of cases—and the court is not even required to state its reasons in the record, in accordance with the facts presented.

Some groups have also raised concerns about certain prison populations who would have difficulty paying or who suffer from mental health problems. We've all heard about the Ashley Smith case, which is very much a hot topic. Even the government admitted there was a problem. The answers we heard during our question and answer period today call attention to the matter. So we won't bury our heads in the sand: in many cases, those who are in prison should probably not be there.

The surcharge is extremely well-intended. We wholeheartedly stand behind the objective, which is to increase funding for victims, as the Office of the Federal Ombudsman for Victims of Crime has called for I don't know how many times over the years. There is absolutely nothing wrong with that aspect. I believe everyone in this room supports the measure. But this isn't the only way to compensate victims. We heard Mr. Waller talk about the possibility of imposing bigger fines. It's one of the current provisions in Bill C-37. We didn't discuss it much because it didn't involve any amendments.

A little while ago, Mr. Jean mentioned clients that were able to pay the legal bill for their defence counsel. And we're glad of it. That said, they may be able to afford a higher fine. It will be useful to see how many times the courts impose a higher surcharge. That may be the way to shore up funding for victims programs.

Nevertheless, a problem remains. I am referring to borderline cases that are likely to fall through the cracks of the system. For example, in cases where a minimum sentence is imposed in the form of a fine, the surcharge will automatically be imposed. So that eliminates the possibility of rendering the right decision.

Indeed, the decision in R. v. Wu is an important consideration. My background is in civil law. Quebec's system is based on codes: the Civil Code, the Code of Civil Procedure, the Criminal Code and so on. Something that is clear and understood by everyone is our preference to codify rather than interpret the jurisprudence, as is often the case under the common law system. That is the beauty of our bijural tradition in Canada. Regardless, there are times when I prefer to write down what the law of the land should be, to put all questions to rest.

When we prepared our amendment, we tried to fully adhere to the government's objective of doubling the surcharge and making it mandatory, while maintaining the onus of proof on the accused, the conditions of which would be similar to those described in R. v. Wu. They are extremely specific cases. There are two conditions: the issue is not only whether the accused is unable to pay as a result of extreme poverty, which must be proven, but also whether it is impossible for the accused to access a fine option program under section 736.

I believe—and I think I speak on behalf of the NDP as well—that we genuinely need to strengthen this bill to the point of removing all weaknesses. As they say, the stronger the better. That would be ideal. That would reconcile almost all the logical points of view heard throughout our consideration of Bill C-37. That is what we're trying to do and it should not be considered unacceptable. It would truly improve the bill tremendously.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chair, this amendment is for greater certainty.

It would leave intact a court's judicial discretion to sentence an offender to whatever punishment the particular offence would deserve, pursuant to the law at issue and the relevant sentencing guidelines. An offender would be subject to incarceration, when warranted, by his specific offence, but as I think this committee is aware, not all offences in the Criminal Code call for this extreme punishment.

To conclude, the amendment would ensure—and that's what the reasoning is—that where incarceration is not otherwise an option, and where an offender is simply not able to pay the surcharge because of financial hardship, he or she will not thereby find themselves facing such incarceration. I would note that even one day in jail could have adverse consequences, particularly when it's unnecessary, and could even lead to a loss of employment in a certain situation, exacerbating the difficulties in the situation.

This is not, in my view, the objective being sought by Bill C-37. If the committee is going to pass this bill with the undue hardship defence removed, which is I suspect what we will be doing, we should at least ensure that the Supreme Court's decision in this regard can be appropriately respected and codified. That's all I'm saying.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

The proposed amendment would specify that an offender who is unable to pay the victim surcharge is not subject to imprisonment for that failure to pay. We understand that is the idea; however, in our view, the proposed amendment goes beyond current paragraph 734.7(1)(b) of the Criminal Code, which reflects the Supreme Court of Canada's 2003 decision in Regina v. Wu.

Under this paragraph, a court cannot issue a warrant of committal in default of payment of a victim surcharge unless the offender has refused to pay the surcharge without a reasonable excuse. This would prevent, for example, an offender who was unable to pay the surcharge due to poverty from being sent to prison. The wording of this proposed amendment could mean that an offender who doesn't pay for any reason will not be subject to the ultimate consequence of imprisonment. The Criminal Code currently prohibits the imprisonment of offenders who default on the victim surcharge due to an inability to pay.

Bill C-37 , as introduced, seeks to ensure that offenders who have the ability to pay are absolutely required to do so. Those who are unable to pay the victim surcharge will be able to discharge the amount owing by participating in a fine option program. These programs exist in seven jurisdictions. Alternative measures are available in the provinces that do not offer such programs, such as my own jurisdiction of British Columbia, where there are many mechanisms used to collect fines of this type.

Mr. Chair, I would like to ask the officials to comment on this as well.