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

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.

Motions in amendment

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

moved:

Motion No. 1

That Bill C-37 be amended by deleting Clause 3.

Mr. Speaker, before I begin, could you give me some indication of how many minutes I will have?

[The Acting Speaker, Bruce Stanton]

Yes, my apologies to the member for Saanich—Gulf Islands. Ordinarily, we will let members know about how much time they would have before another rubric in the day's business comes upon us. The member will have approximately three minutes now and, of course, the remaining seven minutes for her remarks when the House next resumes debate on the motion.

The hon. member for Saanich—Gulf Islands.

[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.

[The Acting Speaker, Bruce Stanton]

The hon. member for Saanich—Gulf Islands will have seven minutes remaining for her remarks and the usual five minutes for questions and comments when the House next returns to the motion before it.

Statements by members. The hon. member for Ahuntsic.

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.

Increasing Offenders' Accountability for Victims Act

[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.

[Bruce Hyer, Independent, Thunder Bay—Superior North, ON]

Mr. Speaker, as is often the case, the hon. member for Saanich—Gulf Islands has an unusual ability to integrate details that many of us miss within a much broader context of social and legal implications. I learned a lot from what she just said. It concerns me as well.

I would like her to take this a bit broader and talk not about the impact of victims within prison walls but about their families and what implications there might be for actually increasing the cost to society in a variety of ways.

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

Mr. Speaker, that has been a concern of a number of the witnesses who testified before the committee. If a fine is levied against individuals for a relatively minor offence and they lack the ability to pay, it essentially could recriminalize them and prevent them from being able to care for their dependents. That was one of the grounds we would now repeal, that a judge could have concern for whether there was undue hardship on the perpetrators of the crime, or on their families.

I remember this well. I was thinking of it earlier when the member for Cape Breton—Canso spoke of the progress that has been made by the Mi’kmaq people of Waycobah. Years ago, I remember reading the story in the paper of the criminal conviction of a young man from Whycocomagh, nearby, for the theft of a pizza from the local store. It was “theft under”. It was punishable by summary conviction. He had jail time, and under this new law he would also be immediately fined $100, for which there would be absolutely no recourse. That is a mistake. It would do damage to families, it would do damage to the individuals involved and it would add nothing to the overall health and wellbeing of our society.

[Bruce Hyer, Independent, Thunder Bay—Superior North, ON]

Mr. Speaker, I have been concerned for quite a while that even when there is legislation that most of us agree with, like this—all of us want to see adequate protection and, if necessary, compensation for victims—the members of the government virtually never vote for any amendments to any of their legislation. They apparently feel that they have it perfect. The hon. member for Saanich—Gulf Islands may want to add to my comment that I hope this is one time that they will consider a small amendment to an important piece of legislation to prevent a big error and to improve the legislation.

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

Mr. Speaker, I would also like to urge that we could, at report stage, make amendments. In this case, as in most cases, we have seen efforts made at committee. I want to particularly note that the former minister of justice, with whom I have worked on this file, who is currently the Liberal member for Mount Royal, has worked very hard on this as well and sees some of the same issues that I see.

Victim services are not advanced if we create more people in prisons. I completely support increasing the fine. I completely support that we track the funds and make sure they are going from provinces to victim services. However, it certainly is wrong to remove judicial discretion. Only a judge, having watched an accused in a proceeding, having tested the evidence, and at the point of sentencing, has the ability to look at the accused person and decide whether applying the fine would be in the interests of public security and safety, or counterproductive.

[Kerry-Lynne Findlay, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I listened to the member's comments with interest. However, there are many aspects of this program that she failed to mention, such as the fine option program that is available in virtually every province and territory of the country. There are other systems in place where it is not available. Someone tasked with paying a victim surcharge can pay it off with community service or the like.

These surcharges that we are talking about are $100 for a summary conviction and $200 for an indictable offence. We are not talking about onerous fines, nor will people go to jail for non-payment unless they refuse and are in contempt of court.

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

Mr. Speaker, the Supreme Court of Canada has held that an offender should not be imprisoned for non-payment. However, to someone who has no money, $100 might as well be $1,000 or $10,000.

In the class of those people most likely to be imprisoned, there are people for whom the application of these fines represents the kind of challenge that will prevent them from getting back on the road. That is why the Canadian Bar Association has urged that changes be made to this legislation. The Green Party joins them in that quest. I hope we will find a way to reintroduce judicial discretion at many more points throughout our criminal law system.

[The Deputy Speaker]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker]

The question is on Motion No. 1. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Deputy Speaker]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker]

In my opinion the nays have it.

I declare Motion No. 1 defeated.

[Ed Fast, Conservative, Abbotsford, BC]

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

[The Deputy Speaker, Joe Comartin]

Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[An hon. member]

No.

[The Deputy Speaker, Joe Comartin]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker, Joe Comartin]

All those opposed will please say nay.

[An hon. member]

Nay.

[The Deputy Speaker, Joe Comartin]

In my opinion the yeas have it.

I declare the motion carried.

[The Deputy Speaker, Joe Comartin]

Pursuant to an order made earlier today, the House will now proceed to the third reading of the bill.

[Ed Fast, Conservative, Abbotsford, BC]

moved that the bill be read the third time and passed.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to rise today for the third reading of Bill C-37, the increasing offenders' accountability act. The bill proposes amendments to the victim surcharge provisions of the Criminal Code, which would address longstanding issues with the operation of the victim surcharge.

I am also pleased to say that Bill C-37 was reported back to the Standing Committee on Justice and Human Rights without any amendments.

All members of the House who believe that responsibility for crime begins with the offenders who commit those crimes should applaud the reforms included in the bill. Bill C-37 is not a long bill, nor are the amendments it proposes overly technical or complicated. However, we must not be misled into thinking that the proposed amendments are not of vital importance. Indeed, Bill C-37 is a small bill that will have a big impact. It will have an impact on offenders, who will be held accountable for their actions, and it will have an impact on victims of crime who need services to help them recover from their victimization.

The current victim surcharge provisions in the Criminal Code have not met their intended goals. The requirement for an offender to pay a victim surcharge dates back to amendments made to the Criminal Code in 1988. Ten years later, amendments to those original provisions were proposed in the report of the Standing Committee on Justice and Human Rights entitled, “Victims' Rights—A Voice, Not a Veto”.

The government response to that report described the original victim surcharge provisions as having two goals. First was to make each offender accountable in a small way to victims of crime as a group. Second was to generate revenue for victim services. The government response to the committee's report also noted that the original victim surcharge provisions had fallen far short of expectations. The amendments to the victim surcharge provisions that followed in 2000 also failed to address problems with the operation of the victim surcharge. How do we know this? The victim surcharge is still not being applied in all appropriate cases and it is not generating the revenue that it should for victim services.

There are two very important consequences that flow from the problems with the victim surcharge provisions. The first is that offenders are not being held accountable for their actions. Currently, a sentencing court may exempt an offender from paying the victim surcharge if it will cause undue hardship to the offender or the offender's dependants. However, overly high waiver rates have revealed that the victim surcharge is not being imposed as it should. The victim surcharge is being routinely waived without the required supporting evidence showing that it would cause undue hardship to the offender or the offender's dependants.

The money from the victim surcharge is used by the province or territory where the offender is sentenced to fund services for victims of crime. This is how the first goal of holding offenders accountable to victims of crime as a group is intended to be met, by having each offender contribute a small amount to victim services in their province or territory. As many offenders are inappropriately exempted from paying the victim surcharge, it is clear that this goal is not being met.

The second consequence flowing from the problems with the current surcharge provisions is that revenues from the victim surcharge have never realized their potential. The provinces and territories have reported this problem since the victim surcharge provisions were first created. Therefore, we also know that the second goal of the victim surcharge, that of generating revenue for victim services, has not been met either.

This is why we introduced Bill C-37, to ensure that for the first time the victim surcharge would meet its goals. Bill C-37 would address the problems with the victim surcharge provisions in the Criminal Code in three ways. First, it would ensure that the victim surcharge is applied to all offenders by removing the ability of the sentencing court to waive the victim surcharge for undue hardship. This is a crucial step in reforming these provisions.

During the committee hearings for Bill C-37, a number of witnesses testified that they considered this to be the most important element of the bill. Why? If offenders are not required to pay the victim surcharge, then no amount of reform in this area will be able to effectively address the problems with these provisions. Therefore, the first step in ensuring that the victim surcharge makes offenders accountable and generates revenue for victim services is to make it mandatory in all cases without exception.

The second step taken by Bill C-37 is to provide alternatives for those offenders who are truly unable to pay the amount owing. The victim surcharge amounts are not high, however, we recognize that there will be cases where offenders simply will not be able to make the payment.

Currently, an offender may not discharge the victim surcharge through a fine option program. Bill C-37 would address this by allowing offenders who cannot pay the victim surcharge to discharge the amount owing by participating in provincial or territorial fine option programs. Providing this option for offenders is a reasonable alternative that would ensure the victim surcharge is applied in all cases while allowing offenders who are not able to pay the amount owing to demonstrate their accountability for the harm they have caused to victims by performing community services associated with fine option programs. This is a fitting compromise that meets the first goal of the victim surcharge.

These two proposed amendments of removing the court's ability to waive the victim surcharge and allowing offenders to discharge the victim surcharge through the fine option programs are companion amendments. They work together to make offenders accountable.

Victims' advocates who appeared before the Standing Committee on Justice and Human Rights on Bill C-37 gave their views on offenders participating in fine option programs in cases where the offender is unable to make contributions to victim services. All agree that this is a reasonable alternative for these offenders.

The third area of reform proposed by Bill C-37 is to double the amount of the victim surcharge. Currently, the victim surcharge is 15% of any fine imposed. Under Bill C-37, this amount would be raised to 30% of any fine imposed. In cases where an offender is not sentenced to pay a fine, Bill C-37 would double the victim surcharge from $50 to $100 for summary conviction offences and from $100 to $200 for indictable offences.

At first glance, it might appear that these elements of the bill serve only the second goal of the victim surcharge: to generate revenue for victim services. However, this is not the case. In fact, this reform would serve both the goals of the victim surcharge as it would make offenders accountable to victims as a group by ensuring that the offenders contribute meaningful amounts to victim services.

As I noted earlier, the victim surcharge has not been increased since 2000. Twelve years have passed since the last increase. Twelve years have passed with victim services not receiving the revenue they expected and needed. Twelve years have passed with victims not being able to access the range of services that they require because the funding simply was not available to expand those services to meet victims' needs.

Once again, I will refer to the testimony presented by the victims and the victims' advocates at the committee hearings for Bill C-37 because they said it best. They shared their first-hand experiences about the need for victim services and how unrealized victim surcharge revenues have affected the availability of those services.

We heard about victims who had gone into debt and remortgaged their homes in order to pay the cost of their victimization. We also heard about victims who hired specialized counselling to help them deal with the aftermath of crime, but who had to pay for those services themselves because these services were either unavailable or only available on a short-term basis under provincial-territorial victim service programs.

This testimony was not offered to lay blame on provincial-territorial victim service programs. We know that those programs are staffed with dedicated individuals who are committed to helping victims and who accomplish great things with the limited resources they have. This testimony was offered to illustrate the need for more resources so that victims would be able to access the help they need without going into debt.

The increases proposed by Bill C-37 are not extreme. These are not huge sums of money. For most offenders, they would be manageable amounts. However, for those offenders who cannot pay the victim surcharge, the fine option programs would be available to discharge the amount owing.

Despite the documented need for reforms to the victim surcharge provisions and the many benefits of the approach proposed by Bill C-37, questions have been raised about the potential impact of these amendments on impecunious offenders. In fact, it has been suggested that we did not consider this issue when developing Bill C-37.

As I noted earlier, Bill C-37 proposes to amend the Criminal Code to allow the victim surcharge to be satisfied through an offender's participation in a fine option program. Despite this, it has been suggested that removing the option of waiving the victim surcharge in cases where payment could cause undue hardship to the offender or the offender's dependants would result in the imprisonment of offenders who are unable to pay the victim surcharge. Some have gone so far as to suggest that the reforms in Bill C-37 would result in a return to the debtors' prisons of Dickensian times. This is simply not true.

Fine option programs exist in all but three provinces. Therefore, in the majority of cases, offenders who are unable to pay the victim surcharge would be able to avail themselves of a fine option program to discharge the amount owing. Fine option programs are not offered in Ontario, British Columbia or Newfoundland and Labrador. However, all three of these provinces offer alternative mechanisms for offenders who are unable to pay a fine in full at the time of its imposition. All of these mechanisms would be available to offenders who are unable to pay the victim surcharge.

For example, British Columbia offers an offender who is unable to pay a victim surcharge the ability to make an application to a judge to have it converted to a community service. In Newfoundland and Labrador, the fines administration division provides financial counselling to debtors. The division may either enter into a final payment agreement with the offender or the court may grant an extension of time to pay fines ordered if the offender is unable to pay immediately.

Other mechanisms, such as licence suspension or revocation, are available in all three provinces to encourage offenders to pay. I should also note that any sentencing court in Canada may order a payment plan or an extension of time to pay for an offender who is ordered to pay the victim surcharge. This has always been the case and it would not be changed by Bill C-37.

Bill C-37, therefore, would ensure that there are alternatives for offenders who cannot pay the victim surcharge and this would satisfy the first goal of the victim surcharge, which is to make offenders accountable in a small way to victims.

Finally, I will mention one last point made so eloquently by victims and victim advocates at the committee hearings for Bill C-37. They noted that, over the past 25 years, the potential undue harm to offenders who must pay the victim surcharge has received a great deal of consideration. However, no one has considered the undue harm to victims from the waiver and non-payment of the victim surcharge. Their point is significant and deserves our attention.

Victims need help in dealing with the aftermath of crime. Its effects are far-reaching and may last a lifetime. Victims, through no fault of their own, find themselves in a situation where they require services to put their lives back together. Those services are essential and they require appropriate funding. The victim surcharge is one way of adding to the funding provided by the provinces, the territories and the federal government.

Through the federal victims strategy, we provide $11.6 million annually through the victims fund for grants and contributions to create and enhance services for victims of crime. This government remains committed to holding offenders accountable for their actions and to assisting victims of crime.

Ensuring that offenders pay the victim surcharge as a way of demonstrating their accountability through contributions to victim services is one way to achieve this goal. It is a goal that is supported in Bill C-37 and which deserves the support of all members of this House.

I trust that all members agree that these reforms would further our collective goal of ensuring that the victim surcharge provisions finally reach their potential.

We have waited 25 years. Victims have waited 25 years. Let us not wait any longer. The time to hold offenders accountable is now. I hope we can count on the support of all members to ensure swift passage of this very important crime bill.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I failed to hear any logical rationale for this proposed change, except for the fact that it is another example of the Conservatives trying to remove judicial discretion. We have seen that time after time in all fields.

If the rationale is that perhaps a woman who is raped would seek to have psychological counselling, $200 would be probably one appointment. There does not seem to be any logical reason for this except for some kind of heavy-handed punishment of those who disobey the law.

Why can there not be some degree of judicial discretion, particularly when we hear that there are so many incarcerated people who are suffering from mental troubles? Surely the logical place for this compensation is: first, for the government to finally put in enough money for victim compensation; second, to assist the court in ordering restorative justice, actual work in the community or whatever is appropriate; and third, providing assistance for victims to go to civil courts.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I am not sure if there was a question there but, as to the logic of the bill, it is very simple. It is to provide funds for victim services.

Victims, by and large, have their entire lives disrupted and oftentimes do not have the resources to try to piece their life back together. This is an attempt, whether it be monetarily or through community services, to try to assist the community and the victims as a result of the crime perpetrated upon them.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, there is no doubt that Canadians have many concerns, victims in particular, in regard to what role the government wants to play in terms of doing more than just talking.

I will give a specific example. We have fine option programs. Some provinces have different types of programs than other provinces. There are all sorts of victim services programs. Some provinces provide different types of victim services programs than other provinces.

On that front, we have seen a vacuum or a lack of national leadership in regard to the government trying to ensure that there is some form of standards or national program that would address the issue of victim services or fine option type programs.

What would the member suggest his Prime Minister do to deal with that aspect of victims of crime?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, the willingness of the federal government to permit the provinces and territories to impose a fine option program suited to their needs should not be confused with a lack of leadership. It is simply recognizing the ability of the provinces to know what their needs are.

The Liberal Party has a different way of doing things. We believe the provinces are more than capable of administering justice, as the Constitution provides for the administration of justice in their realm.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Speaker, in the time that I have been in this place I have witnessed some amazing things. I have seen the opposition members oppose job creation measures. I have seen them object to low taxes. I have seen them oppose union transparency, reforms to reduce immigration wait times and responsible resource development regulation.

Does the hon. parliamentary secretary think that the opposition may also oppose these very long overdue reforms, oppose, for example, allowing people who cannot afford to pay victim surcharges to instead do community service? Does he expect that?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I cannot surmise exactly what the opposition members will do faced with such a circumstance. We certainly know that they have opposed, by and large, just about every aspect of trying to protect the public from crime and basically standing up for victims.

However, I will leave it to the opposition members to make their decision about whether they, like most Canadians, want the government to stand up for victims and do everything possible to protect them.

[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.

[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.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, this may surprise my colleague, the member for Kitchener Centre, but the official opposition intends to support the bill.

[Some hon. members]

Bravo!

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[The Deputy Speaker]

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Drummond, Employment Insurance; the hon. member for Gaspésie—Îles-de-la-Madeleine, Search and Rescue.

[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.

[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.

[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.

[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.

[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.

[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.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, there is a pattern here: the imposition of mandatory minimums, which accompanies the removal of judicial discretion, increasingly suggesting a mistrust of the independence and integrity of the judiciary to be able to address these issues where they have the appreciation of the facts and circumstances in any particular case, where they can deal with the understanding of the offender, where they can address questions with respect to undue hardships and questions with regard to rehabilitation of the offender.

This leads me to the second concern. That is that the bill follows a pattern, again, of not addressing the complete spectrum of the criminal justice system, where that would include the whole importance of prevention, and not just the question of a punitive approach; where that would include the question of rehabilitation and reintegration of the offender, and again, not just a condemnatory approach; and where we would have, with respect to the process of dealing with these pieces of legislation—whether it be in the House or at committee, which is supposed to be the place to deal with this—the opportunity to propose amendments for the purpose of actually improving the bill as proposed by the government. However, they are summarily rejected, rather than being addressed, when their particular intention is to improve the very legislation brought forward by the government.

We have had situations where we have had a kind of bizarre anomaly where recommendations—and I was in that circumstance—that I made by way of amendment in committee were rejected in committee, only to be brought forward by the government afterwards on rethinking at report stage, and where the Speaker had to say at report stage that those things should have been addressed by committee, and therefore we had to go into the other place to correct this whole process and bring it back here to the House itself, when it could have been initially corrected at committee.

So the issue of process is inextricably bound up with the issue of substance.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, I thank the hon. member for Mount Royal and I commend him for his work on the Standing Committee on Justice and Human Rights.

He used the word “prevention”. That term is music to my ears. The NDP supports victims of crime and their families, and it supports the recommendations made by the ombudsman for victims of crime in Canada. The best way to reduce the number of potential victims is to engage in prevention.

I wonder if the hon. member could tell us how we can truly achieve prevention in the current context.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I agree with the hon. member on the importance of prevention. As I said, I think the bill is lacking in that respect. It is also lacking in other respects, but the justice process begins with prevention. That is why I proposed a few amendments. I mentioned those on prevention, but there were also amendments on judicial discretion, rehabilitation and reintegration, while dealing with the protection of victims.

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

Mr. Speaker, thank you for this time, which I will be sharing with the hon. member for Manicouagan, when I will state my position on Bill C-37. I would like to tell the House that we support the increasing offenders’ accountability for victims act.

This bill responds to a need expressed by intervenors and lobby groups. Even though our support is not complete, we are satisfied that such a measure will make it possible to award additional sums to victims. Our party has always had a clear position on issues relating to the judicial system. We argue for an equitable, impartial and progressive form of justice.

We believe that victims deserve all the assistance they require, and we believe that our role as parliamentarians is to support them. Criminals must take responsibility for their actions, but we must also remember that it is also our duty to encourage their rehabilitation. Bill C-37 is consistent with this logic, because it recognizes the victims' needs. It forces criminals to confront the consequences of their acts, and allows for the conversion of financial penalties to hours of community service.

The increasing offenders’ accountability for victims act will double the amount of the victim surcharge and make it mandatory for all offenders convicted of a criminal offence. At the moment, if a person's goods are lost or destroyed, or if personal physical or psychological damage is inflicted or threatened, the judge may order an offender who is convicted or discharged to pay an amount directly to the victim for damages.

Currently, a 15% surcharge is added to that amount. The money is used to finance programs that assist victims of crime in the province where the crime was committed. Bill C-37 increases these amounts significantly to 30%, in order to help victims. Thus the surcharge may be $100 instead of $50, $200 instead of $100, and so on.

The bill also changes another aspect of the surcharge. At the moment, an offender may be exempt from paying the surcharge if paying it would cause undue hardship to the offender or the offender's dependents.

Bill C-37 eliminates this aspect of the current law. It permits the offender to discharge the fine in whole or in part by earning credits for work performed. The official opposition welcomes this measure, since it provides an opportunity for offenders to become involved in their communities and make restitution for their offences.

Still, the uniform application of the law is significantly limited by the absence of such programs in Ontario and Newfoundland and Labrador. Through this measure, the bill aims to make criminals more accountable for their actions and especially to help the victims of crime. We agree completely with the principle.

However, we believe that there are significant social problems associated with crime and they deserve our attention. For example, 82% of the women in prison have been victims of physical or sexual abuse. That is not an excuse for crime, but it does explain certain aspects. Similarly, poverty often has an influence on the nature and type of crimes committed, and this fact cannot be ignored.

Certainly, the bill does assist victims, and we agree completely with that. Still, it is equally important to attack crime at it roots and rehabilitate the criminals, and the government's current policies ignore these aspects, despite the advice it has received from many experts.

Rather than making massive cuts to federal social programs, the government could have attacked crime at its roots. Rather than constructing prisons to accommodate greater repression under the Conservatives' most recent measures, Canada could have been attacking crime at its roots.

We supported this bill at second reading because we agreed with its principle, but we want to work on improving some of the measures.

We did express some reservations about enforcement and results.

We were particularly concerned that the law might not be enforced uniformly across Canada, especially with regard to victim compensation programs. The lack of a compensation program in Ontario and Newfoundland and Labrador, as noted in this bill, limits the extent to which the government's changes can be put into practice.

Thus, the consequences of a crime committed in Montreal would not be the same as if the same crime were committed in Toronto. We cannot create a law like this and find out that some of its elements are completely non-operational in some part of the country.

Therefore, the federal authorities must sit down with their provincial counterparts to make sure there is one justice system for everyone and not a two-tier system because of a lack of structure.

At the moment, the federal program for assistance to victims of crime has a budget of $16 million, but only $3 million is being used. Over 80% of the budget envelope is not being used. Once again, it is essential that the government not limit itself to the surface aspects alone. Once the legislative process is complete, it must really work on enforcement. It is important that the money be set aside for victims of crime, but it is even more important for the victims to actually benefit from that money.

Moreover, crime costs Canada about $70 billion a year, and 70% of that is borne by the victims. In that context, it is essential that the money raised through the surcharge really go to the victims and that additional funds be provided.

We agree completely with the Federal Ombudsman for Victims of Crime, who argues for increased funding of programs for this often-neglected group of people, who are directly affected by the Conservative government's budget cuts.

I also want to use this time to call upon the Canadian government to take inspiration form initiatives outside our borders. For example, the United Kingdom and other countries are developing a more evolved concept of restorative justice for victims and for offenders. It would be useful for the Conservatives to consider such ideas seriously as they develop their policies.

The ideas of mutual assistance, mediation between the parties, reparation of the damage caused and restitution would be stressed, for the good of both victims and ex-offenders. Why could we not take our justice system to another level, and go beyond mere technocratic logic?

In conclusion, we will be supporting Bill C-37. We believe that this measure is justified, that it responds to what the community wants and that it will help victims. However, we think it is essential that this government make sure that these measures are applied effectively. We cannot allow a law not to be fair to everyone, from one province to another.

We think the government has to explore other avenues, to develop a modern, proactive system that both promotes rehabilitation and supports victims. One thing is certain: we will be keeping a close eye on how Bill C-37 is administered, and we will continue to stand up both for victims and for rehabilitation of criminals.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Speaker, I want to thank my colleague for her remarks and support of this great bill, with its long overdue reforms. I can see that my colleague agrees with her colleague who spoke earlier that it is difficult to oppose virtue. I can only hope that this catches on all across the opposition.

I want to mention one thing relating specifically to another Liberal colleague who spoke before her. He did not ever actually deny my assertion that our bill does not require anyone to go to jail because the person cannot afford to pay a fine. He failed to mention the specific section of the Criminal Code. It is section 734.7, which states that a “court shall not issue a warrant of committal in default of payment of a fine...unless the court is satisfied...that the offender has, without reasonable excuse, refused to pay...”. Therefore, if there is a reasonable excuse, no one watching today needs to worry that anyone will ever go to jail if he or she has a reasonable excuse for not paying a fine.

Regarding the comments of the member who just spoke, I would also mention that if she were to visit the website of the Minister of Public Safety and corrections, she would find that the government has just recently sponsored a symposium on restorative justice and is sponsoring many programs across the country on restorative justice. That is just part of our balanced approach.

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

Mr. Speaker, I thank my colleague for his question.

I would simply like to remind the House of how important the NDP believes judges’ discretion to be. There is no doubt in our minds that these powers are in fact discretionary and that it is important to ensure that the integrity of the judiciary is recognized and upheld.

On the question of the victim surcharge, obviously, as I explained, this bill unfortunately does not go far enough when it comes to prevention. This does not mean using punishment as a deterrent; we know there is the whole area of prevention and rehabilitation to be considered when it comes to crime.

As a democratic party, we can never stress this enough, and we reiterate our position on this.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, I want to refer to the comment by the previous Conservative speaker, who had a question for my hon. colleague from the NDP, because I do not think he understands how our legislative process works. When a new law is passed it overwrites or supercedes previous laws, unless we are talking about the Charter of Rights and Freedoms or the Constitution. We cannot change those without a much more elaborate process. However, when we have a new law with new provisions, in this case creating real doubt about what happens when a person cannot pay his or her debt, we do have a new problem.

He perhaps does not understand that the Criminal Code is simply previous legislation, and it can be changed by any bill that comes into the House and is passed.

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

Mr. Speaker, right off, I do not know whether I am the right person to answer that question. I could leave it to my colleague opposite to answer it, but I will answer.

There is no doubt that this bill focuses on victims and all the assistance we can provide for them. That is why we support it. That is not the case for victim surcharges, which are essentially intended to hold offenders accountable. I will say it again, since it is really of crucial importance: we cannot fight crime through punishment alone; there has to be an element of prevention and an element of rehabilitation, which will create a society with a justice system that is as clear and fair as possible. That is how I would answer.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, because of my ongoing concern with shedding light on the concrete application and real impact of measures designed to address a social issue that has been identified, it strikes me as essential to introduce into this debate a number of imponderables with respect to cases that give rise to the imposition of a victim surcharge by a sitting judge in a criminal court.

At the risk of being redundant and repeating myself, I will draw upon my past experience in a legal aid office to illustrate what I am talking about. When I joined the legal aid office, one of the first concepts that I learned was the ability to pay. I had been provided with a binder showing the financial scales applicable to individuals, meaning clients, who came to our office to check whether they were financially eligible to obtain legal aid, whether for criminal or civil cases. It is one of the first concepts you learn when you begin in the practice.

When I joined the Sept-Îles legal aid office in 2007, the financial limit was approximately $20,000 to $25,000 for a person to be eligible for free services. If the amount exceeded $20,000 to $25,000, then services were still available, although a small financial contribution from the client was required. Allow me to reiterate that this is one of the first concepts you learn when you begin practising law.

When you meet a client, you need to complete a fact sheet that includes information such as principal source of income and all sources of additional earnings. These are the first things you learn. You complete the fact sheet and before meeting clients, you check it to determine whether they are eligible for services.

Even though I have been referring to this financial scale, most of my legal aid clients were of course receiving social assistance or other income security benefits. They were therefore eligible for the services provided by the legal aid office. For me, it became pretty much automatic. My employer at the time, the attorney who introduced me to practising in the trenches, instilled this reflex in me to some degree. After completing one's submissions on sentencing, one says, more often than not, “I would ask that my client be exempted from paying the surcharge because he is receiving social assistance.”

Even today, although I have not been pleading cases for two years, it is still mechanical, by which I mean that I can repeat this stock phrase from memory. It was somewhat redundant, because at the end of each of my cases, I had to repeat this set phrase because most of my clients were social assistance recipients. Even when I was in private practice, I was first and foremost handling legal aid assignments. It became second nature to me.

In short, if the lawyer tells the judge that the client should be exempted from paying the surcharge upon sentencing, then the judge has to decide on the sentence applicable to the individual on the basis of that person’s sources of income and ability to pay a fine. I will refer to this later and will go into the subject in more detail. I simply wanted to raise this concept.

An offender's ability to pay is the determining factor at the submissions on sentencing stage. Like the codified guidelines applicable to cases involving an aboriginal offender, judges have considerable latitude in determining and handing down alternatives to imprisonment. I will refer to the section of the Criminal Code that covers this particular case.

But we must understand that judges have some latitude when sentencing. Although it is not mandatory, the judge will still ask questions to see what sentence would be appropriate in a given case. Judges have few options, meaning that they can choose from among two or three options: either a prison sentence, a fine or community service. It always depends on the individual's willingness and ability to pay a fine.

Earlier I mentioned the Criminal Code. I will now read part of it. It is sometimes a good idea to refer to the wording of legislation, because it helps prevent mistakes. So that is what I will do. Paragraph 718.2(e) of the Criminal Code states:

718.2 A court that imposes a sentence shall also take into consideration the following principles:...

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

When I was practising law, I dealt with aboriginal offenders every day, since most of my clients were Innu and Naskapi people from my riding.

This paragraph in the Criminal Code indicates that the judge must make decisions regarding alternatives to a prison sentence in a given case. Obviously, this type of sentence does not apply only to aboriginal offenders, but it applies to them in particular.

The Supreme Court of Canada also ruled that an offender cannot be imprisoned for not paying a fine if he or she is truly unable to pay it. The judge has some latitude in verifying the offender's true willingness to pay.

Generally speaking, when clients, especially those receiving social assistance, are exempted from paying the fine, there may be an alternative sentence. I have seen this in some instances. Even if the client is on social assistance, he must pay the fine if the judge deems him capable of doing so. However, a schedule of payments will be established. The judge will ask how much the person would be prepared to pay on a monthly basis to discharge the fine. Simply because people are receiving social assistance or some other form of income support does not necessarily mean that they will not have to pay anything. There is always that possibility, even if the person has limited financial resources. There is always the possibility of paying a fine. I am not speaking about a surcharge, but rather a fine. First and foremost, the judge will attempt to determine whether it would be preferable for the person to do community service or to make a donation.

As for the surcharge, when the client is receiving income security benefits, the judge will tend not to require payment of the surcharge. The judge will even exempt the offender from paying it because the offender’s ability to pay is already limited. The surcharge, it should not be forgotten, is above all for people who have financial assets, perhaps not considerable assets, but enough in the end to pay the surcharge.

The surcharge is mainly intended to make people accountable. It is a form of empowerment to encourage the individual to take responsibility and give back to society. That is the ultimate reason for assessing a victim surcharge.

When all is said and done, I believe that the important thing to remember is the compensation aspect of the surcharge to be paid by an offender. There is an etymological perspective here too.

The funds raised by the surcharge partly pay for services to crime victims. In Quebec, there is IVAC, the Crime Victims Compensation Act. Under this act, victims receive the compensation surcharge directly, which is enough of a reason to support this bill at third reading.

I will now move on to a brief aside to discuss crime victims compensation boards.

Lawyers, at least practising litigators, work on a regular basis with IVAC. Even in the Sept-Îles courtroom, the IVAC office was right beside the Crown attorneys’ office. Most of the people working for IVAC are social workers. They attend nearly all of the hearings. I used to kid around with some of them who were more knowledgeable about law than I was after only a year, because they attended the hearings for virtually all the courtroom cases.

In short, some of the victim surcharges would ultimately be redirected to the crime victims compensation boards. These boards are extremely important. The workers there deal mainly with victims and children. If you visit, you will see some toys for children to play with. They are friendly and family oriented because there is a wide variety of victims. It is therefore essential for the funds that are collected to be redistributed. Those who ultimately have the ability to pay, those with substantial income, and those with solid financial assets who are capable of paying, should be held accountable and required to pay a higher surcharge so that the services so essential to the maintenance of acceptable social standards can be provided.

I submit this respectfully.

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

Mr. Speaker, I want to thank my colleague for his speech. I listened to what he said very carefully and I have a question for him, since he is very knowledgeable about the aboriginal population and legislation.

The majority of women who are incarcerated, 92%, are aboriginal, while 82% have generally experienced physical or sexual abuse. Unfortunately, they end up behind bars because of a lack of resources. In my opinion a societal problem is at the root of this crime problem, and the situation needs to be examined more fully.

I would like to hear more from my colleague about the aboriginal population and in particular about aboriginal women.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I thank my hon. colleague for her question.

When I stated that the majority, if not virtually all, of my clients were aboriginal, it is important to understand that where I come from, the figure is not necessarily 91%. The statistics we had at the time showed that 75% were aboriginal.

When we go and meet with inmates in the basement of the courthouse in Sept-Îles—and even in Baie-Comeau, since space is fairly limited at the courthouse in Sept-Îles—it is quite obvious to us that the inmates are primarily aboriginal. This is unfortunate, but it is also a reflection of the breakdown of the communities’ social fabric. Deviant elements can be observed every day on reserves. There are nearly 15,000 Indians in my riding: Innu and Naskapi. So then, by force of circumstance, deviant behaviours can also be observed in the communities. It is most unfortunate, but this is first and foremost a societal problem that must be addressed from within.

As for the victim surcharge, it is important to understand that there were many female clients, especially in light of the number of cases of domestic violence that I handled. Many female aboriginal clients will also turn to the criminal injuries compensation board. So then, in the final analysis, increasing accountability by raising the victim surcharge amounts can only be beneficial to the healing process and the social intervention that must take place in cases of domestic violence.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Speaker, several of my colleagues in the House have talked about how important it is for the judge to have some discretionary decision-making powers. I personally am not a legal expert, but the basis of their argument is that no two situations are identical and that therefore, the facts and the environment are not the same in every case.

Applying this premise to first nations communities, I would be interested to hear my colleague’s views.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I thank my colleague for his question.

I mentioned section 718.2 of the Criminal Code. A provision in the code already deals with aboriginal offenders. However, I have seen a few lawyers specifically refer to this provision at the time of sentencing, when presenting their sentencing arguments. Some of my colleagues mentioned this provision. They reminded the judge that pursuant to section 718.2, the court had to take into account the circumstances and the fact that their client was aboriginal. The judge, however, is not necessarily bound by this. He must look at whether a sanction other than imprisonment can be considered.

However, there are limitations. At some point, an individual must be held accountable. In the case of repeat offenders, ultimately if there is no sanction other than imprisonment that is deemed appropriate, then the judge will sentence the offender to prison. I saw this happen during my years as a practising lawyer pleading cases. So then, even though there is a specific provision in the Criminal Code, the judge is not necessarily bound 100% by it. He must consider the circumstances, but there are limitations and ultimately, the offender must bear responsibility for his actions.

That is all I have to say.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Mr. Speaker, I am very pleased to stand in the House to speak to Bill C-37. New Democrats support the bill in principle, which I am sure comes as a welcome relief for my colleagues across the way. We support the bill, first and foremost, because we support victims of crime, their families and communities.

We take note of the recommendations made by the Ombudsman for Victims of Crime, whose office wrote four years ago that it recommended repealing subsections 737(5) and (6) of the Criminal Code to remove all discretion of judges to weigh the surcharge and make it automatic in all cases. The removal of the discretion of judges has been the subject of some debate in the House.

The report went on to say that judges' discretion had been widely and improperly applied. As well, the judges themselves wrote the Minister of Justice asking him to push for the doubling of these fines. As far as the doubling of fines, New Democrats support the bill and its recommendations, but I would like to offer some food for thought.

While we support Bill C-37, there are some concerns that persist as to the administration of these funds and what they are intended to accomplish. In administering these funds, are we truly providing victims with justice? That is a question I will look at a little later.

I want to make it very clear that providing services to crime victims has always been and will continue to be our priority. Using these funds in a transparent way to meet the needs of crime victims is a step in the right direction.

We must not lose sight of the larger goal of preventing such criminality in the first place. Too often criminal action is the direct outcome of social and economic precariousness. Too often crime is the terrible yet predictable consequence of poverty and a seemingly hopeless future. Too often we try to address the needs of victims while ensnaring those who have already been disenfranchised in a cycle of marginalization.

The question is this. Can we address the needs of victims without ensnaring those who have already been disenfranchised and caught in a cycle of marginalization? We have to focus our energies on preventing that disenfranchisement, that marginalization, as well as those criminal acts, thereby reducing the number of victims.

It is not always easy, of course. When confronted with the aftermath of crime, we react with disgust, revulsion, anger or a desire for vengeance. Less than a week ago, the members of the House rose to observe a minute of silence. We remembered the 14 women who died as a result of a horrific crime committed in my hometown of Montreal.

This is a time when we are all conscious of the horror of violence and, in particular, gender-based violence. Just as we will never forget what happened that day, we cannot permit ourselves to do simply the minimum of only addressing the issue of crime with punitive measures. As my grandmother would say, “It's kind of like closing the barn door after the horse has left”.

We must acknowledge that punishment and fines only hold so much sway. In all honesty, our citizens demand more from us. They know that crimes are committed for complicated reasons and while supporting victims is our clear and primary objective, preventing future victims and future victimization by preventing future criminality is, by far, the best use of our resources, our talents and our time.

I would like to give my esteemed colleagues an example of the complexity of this issue and the need for a more comprehensive approach to criminality. It is a point that was brought up by one of my colleagues earlier in her question. We know that 82% of incarcerated women were previously victims of physical or sexual aggression. I would like to add to that the fact that 91% of incarcerated women are of first nations origin, a vast overrepresentation. One has to ask where was the victim support that they needed, whether financial, psychological or sociological?

These statistics illustrate the need for victim support, for better financing of victims services but also for a more restorative and holistic justice system. These women who were abused, for what ever reason, self-esteem, a need to survive, resorted to criminal acts: a bounced cheque, prostitution, petty theft. If there were services that helped them regain their self-esteem, to help them through that process, frankly, if we as a society knew a little more and spent more energy educating ourselves on the long-term effects of sexual aggression and gender violence, would this 82% of women be incarcerated? That is a question we need to ask ourselves.

Increased fines are increased fines; they help to a certain extent. The projected use for these fines, as I understand it, is to go to victims services, but in what way? We are seeing a weakening of the services available to victims. It is a step in the right direction, but the fines, increased or not, do not and will not interrupt the cycle of crime.

The judicial system in Quebec, my home province, favours reforms and reintegration to ensure justice. The proof of this approach can be found in a tour of the neighbourhoods of Petite-Bourgogne, Saint-Henri and Pointe Saint-Charles in my riding.

I am very proud to represent these communities. Anyone who tours these neighbourhoods will see how areas once riddled with crime can be transformed with the proper guidance.

We unequivocally support increased funding of services for crime victims. Providing better funding and an open, transparent system that gives victims access to the services they need is an important measure.

Support for victims services has to be more than just charging more money to criminals. It has to be more for the simple reason that I would think a considerable majority of these petty criminals would have very little to give to these organizations. Our energy needs to be put into creating financial support for victims of crime through organizations and support that is about restoration, not only of what was taken from them but what they feel they have lost.

I was robbed once. Someone broke into my condo in a very timely manner when the all the alarm systems were being redone. Yes, it was suspicious. However, one comes home to the feeling of someone being in one's apartment, going through one's things and not only taking things that are of value financially but things that are of value because they were given from a child or they were the last thing given by a grandparent. Although my mother raised fairly strong children, it took a long time for me to get through that sense of violation, and that was only from having my home burglarized.

As I have mentioned, there is a need for victims services. However, for those people who find themselves in marginalized, disenfranchised and isolated situations, it is of the utmost importance. Having those services could very well prevent a large number of these types of crimes, where some women find themselves on the wrong side of the law. These are crimes of survival and of need.

We have to look at justice as a three dimensional thing. It is not simply that because one did something wrong that one needs to go to jail. We need to understand why people do the things they do.

Criminals are criminals. They are going to do things, be bad people and they will pay for it as the justice system allows. However, not every criminal has a criminal mind. There is a reason for their criminality. Therefore, there is a need to have more resources put into making sure that victims of crime, victims of sexual abuse and gender violence, are not placed in a position where they have to commit a crime because the criminal acts put upon them dehumanized them so much that they could not function in society.

There are very important interventions that we need and can make, financial interventions, support for these organizations and support for people who have lost loved ones or who have lost fortunes. They are important among the many things that we can undertake as we seek to improve our justice system.

Our aim needs to be to make our justice more logical, more balanced and, indeed, more helpful to our citizens. This is what we hope the government will take away from these debates we have been having on a bill that we do support, but there is something that is missing from that bill. It is that restorative outlook in what we can do to prevent the creation of more victims as opposed to overly punishing criminals.

There is something that keeps sort of popping into this discussion whenever we discuss any of these bill, which is that the opposition supports crimes or that it is soft on crime.

We need to remember that the laws we have in place, even those laws that are abused by those who commit crimes, those laws are actually in place to protect the innocent. They are there to ensure that governments and police law enforcement agencies do not run roughshod over people's constitutional rights. They are not there to protect criminals. They are there to protect those people from getting caught in a situation not of their making and having every recourse of the law to ensure they can prove their innocence.

Unfortunately, like anything else, somebody who wants to abuse that will abuse it, but we cannot change those protections because we are afraid of those who abuse it. If we do, we law-abiding citizens, Canadians, will lose those protections ourselves.

I will just reiterate the last part of my speech by saying that the interventions, such as support for victim groups, is incredibly important and we must make every effort to make our justice system more logical, more balance and more helpful to all our citizens.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I appreciate the comments that were made by the member. We do need to talk a lot more about the issue of restorative justice.

I would ask the member to provide some comments on restorative justice, if he has some thoughts he would like to share.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Mr. Speaker, my experience, though limited with restorative justice, is in the juvenile area.

We have a situation here where young people will commit a crime for the silliest of reasons and be subject to laws that are unduly harsh for the situation they are in, unduly harsh because they are spending time in an environment, prison, where they themselves will become victims, where they themselves will learn the tools of a trade that we do not want them to learn.

What we need to do in terms of restorative justice is to ensure they not only understand what they have done, they understand the consequences and feel the consequences, but that they can take that education back out into the world and become a better citizen.

[The Acting Speaker, Bruce Stanton]

Questions and comments? Resuming debate. Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker, Bruce Stanton]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Acting Speaker, Bruce Stanton]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker, Bruce Stanton]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker, Bruce Stanton]

In my opinion the yeas have it.

And five or more members having risen:

[Gordon O'Connor, Conservative, Carleton—Mississippi Mills, ON]

Mr. Speaker, I ask that the vote be deferred until tomorrow following government orders.

[The Acting Speaker, Bruce Stanton]

Accordingly, the recorded division is deferred until tomorrow at the end of government orders.

It being 5:30, the House will now proceed to the consideration of private members business as listed on today's order paper.

The House resumed from December 11 consideration of the motion that Bill C-37, An Act to amend the Criminal Code, be read the third time and passed.

[The Speaker, Andrew Scheer]

The House will now proceed to the taking of the deferred recorded division on the motion at third reading stage of Bill C-37.

(The House divided on the motion, which was agreed to on the following division:)

Vote #594

[The Speaker, Andrew Scheer]

I declare the motion carried.

(Bill read the third time and passed)