Justice Committee on Oct. 23rd, 2012

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order. This is meeting number 46 of the Standing Committee on Justice and Human Rights, pursuant to the order of reference of Tuesday, October 16, 2012, Bill C-37, An Act to amend the Criminal Code.

We welcome the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada, along with a colleague from the Department of Justice, Madam Morency.

Minister, I'm sure you are quite familiar with the rules. You have an opening address. Please feel free to begin.

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

By all means. It's about 60 minutes, Mr. Chair, if that's okay with you.

[The Chair, Conservative, Dave MacKenzie]

That will be fine.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm pleased to appear before the committee today to speak about Bill C-37, Increasing Offenders' Accountability for Victims Act. The government, as you know, has consistently made victims of crime a priority, and this bill represents our most recent legislative proposal to ensure that offenders are held accountable to the victims who they have harmed.

I was very encouraged by the strong support shown for this bill by members at second reading. I think we can all agree that victims of crime deserve our full support, and I hope we can all continue to work together to ensure the swift passage of this bill.

The bill proposes three changes to the victims surcharge provisions of the Criminal Code. The first change would ensure that the victim surcharge is imposed in all cases without exception by removing the option to waive the surcharge. Second, the offenders who are unable to pay the victim surcharge would be able to participate in the provincial and territorial fine option programs to discharge the amount owing. Third, the amount of the victim surcharge that an offender must pay would double under this legislation. All three proposed amendments serve the same purposes: to promote a sense of responsibility in offenders for their actions, and to make offenders accountable to the victims whose lives they have affected.

The changes that we are proposing in the legislation would address a number of issues with the operation of the victim surcharge that have been the subject of study and consultation over the last few years. First, and perhaps most important, it would ensure that the victim surcharges apply to all offenders without exception. The original 1988 victim surcharge provision required the judge to order the surcharge. In 2000 the provision was amended so that the surcharge would be automatically imposed. The court could then waive the victim surcharge if the offender proved that its imposition would cause undue hardship to the offender or the offender's family. Despite this amendment, a surcharge is not applied in all cases.

Research conducted by the Department of Justice in New Brunswick, published in 2006, shows that the surcharge was waived in two-thirds of the cases over a five-year period of time. Remarkably, the surcharge was waived in 84% of cases involving summary conviction offences and 91% of cases involving indictable offences where the offender received a sentence of imprisonment. In contrast, the surcharge was waived in 25% of cases where the offender was sentenced to pay a fine.

The research suggests that the noticeably higher waiver rate for offenders receiving custodial sentences is due to a blanket waiver policy for offenders who are sentenced to imprisonment as opposed to proof of hardship to the offender or his or her family. Furthermore, in 99% of the cases where the surcharge was waived in New Brunswick, reasons for the waiver were not provided by the court, and no documentation was found showing that the offender had demonstrated that paying the victim surcharge would cause undue hardship to the offender or his family.

The research is particularly troubling as it shows that the current provisions are not operating as they were intended. Waiver of the surcharge is not founded upon proof of hardship, but on presumptions about the offender's ability to pay, and we find this unacceptable. It's not acceptable for offenders, and it's certainly not acceptable for their victims. The victim surcharge is a part of the offender's sentence.

We must be mindful of the underlying purpose of the victim surcharge to hold offenders accountable to victims. This is entirely appropriate and is in keeping with the sentencing principles in the Criminal Code, which make specific reference to promoting responsibility in offenders and making reparations for harm done to victims.

For this reason, Bill C-37 proposes to remove the waiver option in order to ensure that the victim surcharge is applied automatically, as it was intended. Those offenders who are truly not able to pay the victim surcharge without incurring hardship would have the option of participating in provincial and territorial fine option programs to discharge the amount owing. This is the second change proposed by Bill C-37.

Fine option programs will allow offenders to satisfy the victim surcharge by earning credits for work they perform in programs operated by the provinces or territories. This is in line with the philosophy of a victim surcharge, which seeks to make offenders accountable to victims of crime.

Currently, offenders who are unable to pay the surcharge are not required to take any additional steps to demonstrate responsibility for their actions. Allowing offenders to discharge the victim surcharge by participating in fine option programs would ensure that all offenders are held accountable for their actions. Giving back to the community through such work would remind offenders of their responsibility to victims and to the greater community.

Finally, the third change we are proposing in Bill C-37 would double the amount of the victim surcharge. This is an essential element of our package of amendments. The surcharge would be raised to 30% of any fine imposed or where the punishment does not include a fine of $100 for summary conviction offence and $200 for an indictable offence.

This would be the first increase to the victim surcharge since the year 2000, when the provision was last amended. To ensure that the offenders are accountable to victims for the harm they have done, the victim surcharge must be meaningful. Let us not forget that the primary purpose of the surcharge is to ensure that offenders receive a sentence that will promote responsibility for their actions.

Because the victim surcharge is used to help fund services for victims, its payment allows offenders to make reparations to victims and the larger community. Questions have been raised about how the victim surcharge is used and how we can be certain that the amounts collected will truly benefit victims. To be clear, subsection 737(7) of the Criminal Code directs that the victim surcharge will be used for assistance to victims of crime as directed by the province or territory where the surcharge is imposed. Each of the provinces and territories has established services for victims of crime and a dedicated fund for victims services in accordance with their provincial and territorial victims legislation.

Revenue from the victim surcharge is collected and remains in the dedicated victims fund of the province or territory where the surcharge was imposed. The provincial or territorial government decides how to use this revenue to fund victims of services in each province or territory, but revenue from the victim surcharge has consistently fallen short of expected amounts.

We have worked with our provincial and territorial colleagues to determine how best to address this issue because we know they rely on the victim surcharge to assist in funding crucial services for victims of crime. Many have said they did not see any increase in revenue after the last amendments to the victim surcharge in the year 2000. This is why under this bill we are taking a two-pronged approach to reform. It would ensure that the victim surcharge is imposed in all cases, without exception, and it would raise the amount the offenders must pay.

This approach, which was developed through research and consultation, is supported by the Federal Ombudsman for Victims of Crime, whom I believe you will hear from at this committee.

This government takes its commitment to hold offenders accountable for their actions seriously. The amendments proposed would ensure all offenders are held accountable to victims, either through the payment of the victim surcharge or through participation in community service. Raising the amount of the surcharge would ensure that offenders are paying a meaningful amount, which would have the added benefit of funding the services for victims of crime.

We must continue our commitment to victims of crime, but we cannot do this alone. Meeting the needs of victims of crime is a responsibility that we share, of course, with the provinces and territories. In 2007 we established the federal victims strategy to give victims a more effective voice in the criminal justice system. In 2011 we renewed this strategy with funding of $13 million per year. In 2012 we allocated an additional $7 million over five years. Most of this funding goes directly into the victims fund, which provides grants and contributions to provinces, territories, and non-governmental organizations to develop or enhance victim services.

We will continue to work with our provincial and territorial partners to ensure that they have the funding they need to offer much-needed services to victims of crime.

I hope that we can also work together at the federal level to ensure that this bill receives the support it deserves to hold offenders accountable to victims of crime.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Minister.

Now we begin the rounds.

Ms. Boivin, you have the floor.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair. Thank you for joining us today, Mr. Minister. You are starting to be part of the furniture at our committee. We appreciate that.

We were all very pleased to be able to support Bill C-37. I think that all of us here in this room agree that victims should be compensated properly. There are huge needs in that respect. This bill might be a step in the right direction. At the same time, we have to make sure that we are not creating other problems by passing this bill.

I am sure you have followed the debates on Bill C-37 at second reading. You were able to see that the official opposition is concerned about the loss of judicial discretion in specific cases when the accused had to demonstrate that they were unable to pay. We have some questions about that. You briefly touched on it in your presentation.

Is it because it seems that it is not imposed, almost automatically? Have you been able to study the reason? Is it because many of the accused had legal aid and the court perhaps concluded that they would be unable to pay as a result? Has your department been able to look into this matter? Was it because the estimated surcharges have not materialized?

[Rob Nicholson, Conservative, Niagara Falls, ON]

You've raised some very good questions, Madam Boivin.

Interestingly enough, the only province that actually publishes information with respect to this is New Brunswick. As I indicated to you, in the majority of cases of indictable and summary conviction offences, it was waived, and again, very seldom do we ever get any reasons why this is the case.

With respect to judges imposing this, for the most part, I would imagine that much of the funds will come from individuals who have received a fine. In a sense, the judge decides what fine the individual is going to pay. What we're saying is that there has to be a 30% surcharge on that for victims of crime, but ultimately, the appropriateness of the fine is determined by the judge. Indeed, with respect to summary and indictable offences, again, the judges, or the juries for that matter, will decide the guilt or innocence of the individuals. This seems to be consistent with the penalties we are imposing. I believe it sends out the appropriate message that individuals must be accountable to victims. It's not just law-abiding Canadians who should pay for victim services; all those who create victims have a responsibility as well. I think this bill accomplishes that.

[Françoise Boivin, NDP, Gatineau, QC]

Fair enough, thank you. I understand that point.

That being said, would it be appropriate that a person who has a total incapacity to pay, is your service, and yourself as Minister of Justice….

I have consulted the case law and, more specifically, the Supreme Court's R. v. Wu decision. The case involved a person living in extreme poverty.

We are afraid that we are dealing with a two-tier justice system, meaning one for those who live in the provinces and territories that have a program that allows them to collect money and one for those in the provinces and territories that do not have that type of program.

In addition, those who have absolutely no way of paying are going to have to stay in jail or be sent to jail to make up for the surcharge. In my view, that does not serve as compensation at all, unless the fact of going to jail is indirect compensation for victims. That is not the issue. This has to do with collecting money to be able to make up for the victims' losses.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, and you did touch on it, for those individuals who find themselves convicted of a crime in this country, there is the fine option program available in seven of the provinces, which allows people to find other ways of contributing and dealing with their inability to pay the fine or the surcharge of the fine or the surcharge on their criminal conviction for a summary or indictable offence. Indeed, in provinces which do not, or do not yet have one of these programs, they deal with it in a certain way.

[Françoise Boivin, NDP, Gatineau, QC]

Like Ontario.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's right.

They either provide time for the individual or they work with the individual. They send out certain notices to do this. Again, we're not talking about huge amounts. We're talking about $100 or $200 for the people convicted of crime. Again, it's up to the courts to decide. If there is a fine to be imposed, the courts have all the information before them.

This will work. Again, particularly for those provinces with fine option programs, it's another way for the individual to contribute through some type of community service and assistance to make recompense in a small way to those people they've victimized and to the threats they've inflicted upon society.

[The Chair, Conservative, Dave MacKenzie]

Ms. Findlay.

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

Thank you, Mr. Chair.

Thank you, Minister and Ms. Morency, for being here today.

Minister, I'd like you to address why, in your view, this victim surcharge has increased. I'm particularly wondering about the prevalence of the waiver, also about consistency across the country in its application.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I suppose you could say the information that we have received has not been consistently applied. Again, much of it is anecdotal, because much of this material is not available, with the one exception that I indicated. But I think there is a responsibility on legislators to revisit all aspects of these items. The fact is that it has not been increased or altered since the year 2000.

It means that it's due, if not overdue, to have a look at these issues. I think this is appropriate. Certainly it's consistent with our efforts to stand up with victims of crime. I think it's a perfect fit on every level. To make sure this is now going to be a part of all sentences in Canada is a step in the right direction.

Again, it hasn't been changed since the year 2000. It's an idea whose time has come.

Just so you know, to make sure these things are administratively well put together, we didn't start indexing it. We didn't start indexing it to the cost of living or anything else, because we don't want a situation where one year they're collecting $100, and the next year it's $101.75, for instance. I think we're better off having a set amount so it is familiar to the court and the court staff. It's easier to administer. It's something that hasn't been updated in quite some time. I think it was due.

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

Am I correct that these victims funds which the money will go to are administered by the provinces and territories?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, they are. I'll mention examples of some of the programs that are administered, and they change, as you can imagine, from province to province. There are programs for court support for vulnerable individuals, victim notifications that are sent out—and these are financed with funds collected through this compensation under the victims of crime—and referrals for counselling. Assistance in preparing victim impact statements is another example of where money collected from surcharges, in a number of jurisdictions goes.These are well administered, in my opinion, by our provincial and territorial partners. It's another way of assisting them, as they have, for the most part, the responsibility for the administration of justice in Canada. This is another way we can help them.

[The Chair, Conservative, Dave MacKenzie]

You have a minute and a half.

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

Minister, is this something that would have been discussed with your provincial and territorial counterparts?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, that's a very good point. I do raise these matters on a continual basis with my provincial counterparts. I am pleased with the encouragement and support that I have received over the years. I get together with them on an annual basis, at least, and I'm in touch with them very often between federal, provincial, and territorial meetings. 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.

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

Thank you.

[The Chair, Conservative, Dave MacKenzie]

You still have half a minute, but if you don't want it, that's fine.

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

That's fine.

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

On that point, during the consultations I had with our provincial and territorial counterparts when I was minister of justice, at the time in 2005 the attorney general of Manitoba recommended that the surcharge be increased, as he put it, from 15% to 20%. The increase here is to 30%. Has the position of the attorney general of Manitoba changed? What was the response as a whole of the provincial and territorial counterparts? Did they make the recommendation that it be raised, or did it come from a federal initiative with which they concurred?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I can tell you that the attorney general of Manitoba has changed since 2005—