Okay.
Mr. Chair, I really hope that my colleagues support this amendment, because I believe there is an unintended flaw in this bill, such that, once I explain the policy behind the amendment and what it does, I think all members should be behind this.
What clause 54 says is:
If an accused fails to pay the amount set out in the ticket within the period set out in the ticket, the accused is liable for that amount and (a) a conviction is to be entered in the judicial record of the accused; (b) the conviction is deemed to be pronounced by a court;
Further down, it adds that:
(d) the accused has 30 days after the day of the conviction to pay the amount set out in the ticket
and any court fees.
Subclause 54(2) then says what the effect of payment or imprisonment is. It says:
If, after being convicted, the accused pays the amount set out in the ticket or, if the accused is an individual, the accused has served, in full, any period of imprisonment imposed as a result of a default in payment of the amount of the fine imposed by the court, the judicial record of the accused in relation to the offence must be kept separate and apart from other judicial records and it must not be used for any purpose that would identify the accused as a person dealt with under this Act.
Then finally, clause 55 says:
Only an individual who is unwilling though able to pay a fine or the amount of a victim surcharge imposed in respect of a conviction [...] may be imprisoned in default of its payment.
This is meant to avoid the stigma of a criminal conviction.
Who doesn't get a criminal conviction? It's someone who pays the fine; someone who doesn't pay the fine but serves the imprisonment; someone who could pay the fine but chooses not to, is not eligible for imprisonment.
The person who's left out of this is the poor indigent person who simply can't pay the fine. If they just can't pay the fine because they're poor, then they end up getting a criminal record, and that criminal record can be referred to.
We heard a couple of pieces of testimony by Michael Spratt, who pointed this out. Michael Spratt said:
To its credit, Bill C-45 does attempt to reduce the prejudicial impacts of this ticketing option and there are provisions designed to prevent the public disclosure of judicial records, but this is dependent on the offender's ability to pay a fine. If the ticket remains unpaid 30 days after a conviction is registered, there is no corresponding right to privacy in a judicial record.
If you are poor and cannot pay the fine, you get the record and you don't get the protection of this provision. He goes on to say:
I think the problem is obvious.... if you are poor and can't pay a fine, you are further stigmatized through a public record. If you are well off and can pay the fine, your record is sealed. That judicial record is non-disclosable. Given the research on the impacts of the disclosure of judicial records, the inability of the poor to purchase privacy rights, and the disproportionate enforcement of marijuana offences experienced by marginalized groups, it's quite likely that this ticketing provision...will be found to violate the Canadian Charter of Rights and Freedoms.
Now, Ms. Sidhu clarified this with him. She asked Mr. Spratt:
For clarification, Mr. Spratt, you said that people who are unable to pay tickets are criminalized. In fact, clause 55 states that the ability to pay is a clear consideration in ticketable offences. If you cannot pay, you won't be further punished. I just wanted clarification on this.
Mr. Spratt responded:
It's not that you'll be jailed. The act is clear that the judicial record won't have the same privacy protection as it does for someone who can pay. The punishment I speak of isn't incarceration. Rather, it's the devastating impacts, which are well documented, of the disclosure of judicial records. That's how they're punished.
I think this was an unintended gap in the bill that my amendment clears up.
My amendment would add a new clause 54.1 that says:
54(1) If an accused establishes to the satisfaction of a court that payment of the amount set out in the ticket or of a fine imposed under this Act would cause undue hardship to the accused, the court may, on application of the accused, make an order exempting the accused from the payment of the amount set out in the ticket or that of the fine, or both. (2)For the purposes of subsection (1), undue hardship means the accused is unable to pay the amount set out in the ticket or the amount of a fine imposed under this Act because of the accused's precarious financial circumstances, including because of their unemployment, homelessness, lack of assets or significant financial obligations towards their dependants.
Then finally:
If the accused is convicted of the offence and a Court makes an order under subsection (1), the judicial record of the accused in relation to the offence must be kept separate and apart from other judicial records and it must not be used for any purpose that would identify the accused as a person dealt with under this Act.
In short, Mr. Chair and colleagues, this says if a person can satisfy a court that they're poor and cannot pay the ticket, their record will also be treated in the same way as someone who has paid the fine or the ticket. You don't leave the poor with the stigmatization of a conviction that's not separated as it is for those who can pay.