Health Committee on Oct. 3rd, 2017

[The Chair, Liberal, Bill Casey]

Thanks very much.

Ms. Gladu.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Thank you, Chair. I want to thank my colleague for bringing this one forward. Certainly I agree with the principles that he's talking about. If you're poor, you shouldn't be punished for not being able to pay your ticket by receiving more criminality, or less privacy, or anything else. In principle, I agree, but I am concerned because the response to my question about what kind of database they're going to use to keep these things in, what detail level they are going to use to administer that, has not even been thought of. And 271 days from now, it will matter. I won't be supporting this.

[The Chair, Liberal, Bill Casey]

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair. I'd like to respond to my colleague. The intent is well-meaning; I think it's a good intent.

However, the Criminal Code provisions already grant the court discretion, such that if it is satisfied that the accused cannot pay a fine, it has other options available to it. The court also has the ability to grant an absolute discharge or a conditional discharge to an accused who they believe cannot pay the fine, or to allow them to discharge a fine by earning credits for work performed. This was further clarified with our previous LIB-8, which clarified the court's ability to impose a fine of up to $200. I believe this amendment is unnecessary and is covered by the existing bill.

[The Chair, Liberal, Bill Casey]

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

If that were the case, I would agree with my colleague. But I believe he's not reading section 54(2) properly. It describes the “Effect of payment or imprisonment”. It says, “If, after being convicted, the accused pays the amount set out in the ticket....” Then it goes on to say that “the judicial record of the accused in relation to the offence must be kept separate and apart from other judicial records....”

I'm talking about after conviction. Let's say you have a wealthy person who is convicted and you have an indigent person who is convicted. The wealthy person goes and pays the fine, and their judicial record is now kept separate and apart from other judicial records and can't be used for any purpose that would identify the accused as a person dealt with under this act. But at that point, the indigent can't pay the fine. This is after conviction, so there's no possibility of a discharge at this point. They've already been convicted. That's why this amendment is so important, to deal with that situation.

Ironically, section 55...would leave that person with only one option: serving the jail sentence. So they serve the jail sentence and then they can be treated the same way.

Really what we have here are two different standards of justice: your criminal record and your privacy expectations are dependent upon your ability to pay. Surely that can't be the intention and desire of the Liberal government.

[The Chair, Liberal, Bill Casey]

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair. I wonder if our officials could clarify this question, the matter of having once been convicted, and whether being able to have a conditional discharge is part of that. It seems to me that a discharge is a part of the sentencing. They could also clarify other aspects of concern to Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

If I may, there's another consideration that I want to add to that question.

I was trying to understand this at the time I read it, and I think I understand it now.

Here's the other confusing rub. 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 referred to subsection 53(1) or a fine imposed in respect of a conviction referred to in section 54 may be imprisoned in default of its payment.

Here's the irony now, and I think I'm reading this properly. A person who can't pay the fine because they're impoverished can't even serve the sentence, because this section says the only people who can be in prison for default of payment are those who are able to pay but won't. So, an indigent person can't pay the fine, so they can't get the benefit of record-sealing—for lack of a better word—and they can't serve the jail sentence, because only people who are able to pay are able to be imprisoned. So an indigent person would have no way of having their criminal record treated the same way as someone who can afford to pay, or ironically, someone who can afford to pay but won't. That can't be the intention of the legislation or part of it.

[Paul Saint-Denis]

The courts have wide discretion in terms of sentencing options.

With respect to fines, it was pointed out that the court can impose a fine of up to $200. That's a result of a motion that was adopted by this committee. The courts already have discretion in terms of alternatives to imposing a fine. In the case of an indigent person, there's an obligation under the code currently for the court to not impose a fine if the court is of the view that the person cannot pay the fine. Alternatively, in those cases, the court could impose a fine option or sentence the individual to serve a period of time in a fine option program whereby he would do work in the community. The indigent person is not going to be compelled to pay a fine that the court knows cannot be paid.

[The Chair, Liberal, Bill Casey]

Okay.

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Saint-Denis, you're saying that in Canada today it's never the case that an indigent person receives a fine in a Canadian court? Can you speak with that kind certainty?

[Paul Saint-Denis]

No, I can't. I'm just pointing out what the Criminal Code provisions set out. I'm not aware of indigent persons being jailed for not being able to pay a fine.

Perhaps my colleague can add to that.

[Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

To the point of Bill C-45 reflecting what the Supreme Court has said, if a person is unable to pay a fine, they cannot be imprisoned for their inability to pay through no fault of their own. As my colleague has said, the starting point is that the court has to first determine whether there is an ability to pay a fine, before it can impose a fine. It must then determine the amount of the fine. Bill C-45 provides a maximum limit on that. Alternatively, once a fine is imposed, whatever the amount is, if there is a fine option program in the province, it is possible for an individual to work towards discharging that fine through the work credit.

One thing that is perhaps causing a bit of confusion is that between the first part of the ticket process—an individual issued a ticket chooses to pay or to challenge the ticket—and the second part of the process, which I think Mr. Davies was dealing with—if the individual challenges the ticket and goes through a court process, the court makes determinations as to whether an offence has been committed, and if so, the penalty to be imposed in that situation. If the individual is acquitted, there's no need to protect the record. If there is a conviction entered, then once it's paid or however it's dealt with in accordance with whatever the court imposes for the fine, that part is protected as well under the provision at clause 54 in terms of the judicial record of conviction.

[The Chair, Liberal, Bill Casey]

Thank you very much. We appreciate that.

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

It's a confusing section of the code, but if a police officer gives someone a ticket, gives an indigent person a ticket, the person.... We're making a lot of assumptions here. I'm assuming that the person doesn't pay the ticket because they are poor. They may not even show up in court.

Clause 54 says if an accused fails to pay the amount set in the ticket within the period set out in the ticket, the accused is liable for that amount and a conviction is to be entered in the judicial record of the accused. So an indigent person who doesn't show up in court for their ticket—and this happens every day; Canadians don't go to court when they get tickets—a conviction is entered.

Once that conviction is entered, paragraph 54(1)(d) says the accused has 30 days after the day of the conviction to pay the amount set out on the ticket. If they don't do that, then subclause 54(2) says if after being convicted the accused pays the amount, then it goes into the fact that their record is kept separate and apart.

I still say this section leaves open the very real possibility that indigent Canadians, unless they go to court—and in many cases they will not hire a lawyer, they may not even be able to represent themselves properly; they may not even know to say they can't afford the fine. It leaves open the possibility there's a structural flaw here in the bill where the way that your record is treated is all dependent on your ability to pay the fine. I'm not saying people go to jail for not paying fines. I'm saying that every day in this country indigent people get ticketed and they get a fine of some type, and they don't pay it. I don't think it's fair or right that we treat the way their criminal record is protected by whether or not they pay a fine.

The effect of my amendment, I think, would only bolster that. I don't think it changes anything. It just clearly directs a judge in terms of an offence under this act, that if there is undue hardship and the person can't pay... Again, there's this anomaly, I think, of saying a person can't even serve the time if they can't pay. It at least says that an indigent person, if they satisfy the court of that, their inability to pay the fine is not a reason to have their record treated separately, which is exactly what it says now.

[The Chair, Liberal, Bill Casey]

Thank you very much, Mr. Davies. We understand what you're driving at.

I see no further speakers, so I'll call for a vote on NDP-29.

[Don Davies, NDP, Vancouver Kingsway, BC]

A recorded vote, Mr. Chair.

[The Chair, Liberal, Bill Casey]

Certainly. A recorded vote.

(Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])

(Clauses 55 to 57 inclusive agreed to)

(On clause 58)

Now we go to LIB-10.

Dr. Eyolfson.

[Doug Eyolfson, Liberal, Charleswood—St. James—Assiniboia—Headingley, MB]

Thank you, Mr. Chair.

This is basically another clause that is technical in nature. It corrects an omission that was made in the drafting and also ensures that information respecting judicial records be included as part of the proceedings, and it's consistent with other parts of the bill.

[The Chair, Liberal, Bill Casey]

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

I'm sorry. I don't understand the nature of the amendment.

Dr. Eyolfson, can you tell me specifically what this amendment does? I don't know if anybody from the department can help with that. I'm not sure what the amendment is.

[Doug Eyolfson, Liberal, Charleswood—St. James—Assiniboia—Headingley, MB]

Mr. Saint-Denis, could you take a look at the nature of this amendment, the technical nature of this.

[Paul Saint-Denis]

The amendment is meant to ensure that the reference to an individual not being able to be identified as someone who has been dealt with under this legislation is incorporated into this provision as it is in other similar provisions.

It is simply to ensure consistency in the text; that's the technical aspect of this.

[The Chair, Liberal, Bill Casey]

Ms. Gladu.