Justice Committee on Oct. 23rd, 2012

[Irwin Cotler, Liberal, Mount Royal, QC]

Well, I know that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

—as has everyone across the country. I'll be getting together with them in another week or so, and I'll meet a number of new ones.

Over the years I've had representations. You've been in this position as well, Mr. Cotler. You assemble these things. You hear as well from victims' groups, law enforcement agencies, and you come up with a program that you think will work. My prediction is, as I gave to Madam Findlay, that this will be well received. I suppose I'll give Dave Chomiak a call at some point in time and ask him if this is consistent with what he would have liked if he were still attorney general, but as I say, I'm sure it will be well received.

[Irwin Cotler, Liberal, Mount Royal, QC]

Let me turn to the fine option program. It is my understanding, and I stand to be corrected, that there is no fine option program at this point in either Ontario or Newfoundland and Labrador, and that in Manitoba and Alberta, for instance, the entry into the fine option program is only available at the point at which an offender is admitted to jail, and in Nova Scotia and New Brunswick an offender may participate in the fine option program only after having paid the court costs and the surcharge portion of his or her fine. By removing the undue hardship defence from section 737 of the code, provincial and territorial fine option programs may be the only avenues available for low-income Canadians to satisfy their surcharge obligations. As I mentioned, we had this variation in the provinces and the prospective impact with respect to low-income offenders based on their province or territory of residence.

Have all these things been factored into your considerations in this regard?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, that's a good point.

I remember having looked at this. You quite correctly pointed out, and it's to be expected, that as each province develops, or doesn't develop, a program, there are considerable variations. As you pointed out, in one of them the fine option program does not apply to individuals who are given a fine. Again, it goes back to the question Madame Boivin directed to me in terms of judicial discretion. Presumably the judge, in making a fine, is aware of the fact that he or she is imposing a monetary amount on an individual who has been convicted of a crime, and that the surcharge, which is going to be 30%, is a part of that.

That being said, over the years I've been assured by my provincial counterparts that these programs do work well and they do accommodate individuals who would, for whatever reason—and it could be reasons of poverty, as you indicated—say they can make their contribution back to society, to begin that reconciliation process, by helping out and doing some sort of good community work. Again, that works.

It still accomplishes the same thing: making individuals responsible for what it is they have done and at the same time making a contribution. Again, I think most people would agree with me that these programs shouldn't be simply funded by law-abiding Canadians, but by the individuals who have been convicted.

As you say, there's a wide range across the country. Certainly, when I get together with my provincial and territorial counterparts in another week, I will be glad to have another discussion with them. I'll be interested to know how this will work with respect to their fine option programs and, indeed, if they're making any plans for changes.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Goguen.

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

Thank you, Minister and Madam Morency, for appearing.

Minister, the law as it currently stands is that a victim surcharge is required to be imposed in every case without the judge having to specifically order it. To balance that, on the other hand he has the discretion to waive the victim surcharge when it's perceived it would cause undue hardship. You were citing the numbers in New Brunswick where in the vast majority of cases no victim surcharge was imposed. On the other hand, New Brunswick is one of the provinces that has a fine option program, so that in itself is curious.

In my mind am I correct in saying that this is an attempt to balance the playing field in favour of the victims? There are options to help them, to have the perpetrators of the crime pay for the cost of crime. The cost of crime according to the last study was $99.6 billion, and surprisingly 83% of it was borne by the victim. In your mind is it not an attempt to balance the playing field for the victims of crime?

[Rob Nicholson, Conservative, Niagara Falls, ON]

We're always trying to do that, Mr. Goguen.

You made a very good point about the administration of this. In the majority of the cases that I cited they were individuals who were convicted of summary or indictable offences, and it was waived. There was no explanation to the extent that we can check. There were no representations with respect to the individual's ability to pay. For the most part I would guess that it's either forgotten about, or it becomes routine either not to impose it or indeed to collect it.

With that being said, to make this automatically a part of every sentence in Canada sends out a very clear message. It's a good message because victims who find themselves caught up in this terrible situation in their lives want to know that their concerns are being heard, that their priorities are a priority of the criminal justice system. This is not the whole show. This is just one component of that, but it's one more component to say to them that there are consequences for the individual who has inflicted pain on them and/or their families.

It's another way for the individual to make recompense and to get back into contributing to society and say he created these victims on whom he has inflicted this pain and in a way he's helping to put something back into society to try to make some amends for that. It's not very much in terms of monetary amounts, but again it sends the message that there are consequences, and again for the individual who is paying these things he'll say this is a start. The judge is imposing a penalty, an imprisonment or a fine on him, and he has to start making his way back into society. A victim surcharge is a reminder that these things are not just hurtful to the individual who is going to prison, in that he or she suffers, and their family suffers, but other people suffer as a result of their actions.

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

Thank you.

Quickly, Minister, Mr. Cotler pointed out that three of the provinces don't have the fine option program: British Columbia, Ontario, and Newfoundland. We have a shared jurisdiction in the area of criminal law, and certainly the fine option program would fall under the administration of justice. Am I right in saying that the federal government would cooperate in assisting them, not necessarily financially, in setting up such systems, if called upon? I think quite correctly Bill C-37 makes it mandatory to impose a fine, and it would be left to them, if asked, to put the fine option program in this system.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's a good point.

One of the things pointed out by Mr. Cotler in a review of what takes place across the provinces, I'm not sure if any of them are identical. It seems to me there are variations in all the provinces that have them, and that's appropriately so. The money is going to provincial projects within the province or territory. Each one has to be tailored a little to meet the needs of the individual jurisdiction.

In terms of any advice or assistance we can give, we're always very pleased to do anything we can to assist, anything to help victims, but ultimately the decision will be made by each individual government in the provinces or territories. Again, even with those who don't have a fine option program, there are procedures they take. For instance, a person's driver's licence could be suspended if the person ignored a fine that he or she received after he or she was convicted of a criminal offence. That's one of the options. If you're asking about my preference, I certainly do like the idea that there's a fine option program, and I think most provinces and territories agree that's a good way to handle it. Again, it's up to each individual jurisdiction.

[The Chair, Conservative, Dave MacKenzie]

Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair, and thank you, Minister, for joining us.

I want to continue discussing the fine option programs and whether they are available and whether there are conditions within each province such that a program will not cover the surcharge. It seems that we have at least five, if not six or seven, provinces where there may be a problematic relationship in terms of availability. Let's just say that it's five. For offenders in those provinces, the special form of relief of the fine option program won't be available.

I want to know, Minister, whether you've received advice on whether this falls into the area of being a differential application of the criminal law. I wonder if it is problematic enough that we really need to be looking at the principles of fundamental justice under section 7 of the charter being in play here. The law is holding something out, but it's actually not available to everybody in the country, although we have a nationally applicable body of law. Is there any issue you guys have crunched through to say that section 7 is not a problem?

[Rob Nicholson, Conservative, Niagara Falls, ON]

We look at all aspects of the federal jurisdiction and all the constitutional elements that go into this. With respect to the Constitution of this country, it's very clear that it's the federal government that imposes the penalty with respect to violations of the Criminal Code. That being said, I wouldn't agree that in five provinces there is no availability. My understanding is that seven provinces have a fine option program. Again, as Mr. Cotler pointed out, there are variations among provinces. Even those that do not have a fine option program have procedures in place in terms of allowing the individual time to pay the fine, for instance, if it's a fine, or the surcharge, if it's a summary or indictable criminal conviction that results in imprisonment. That being said, they have procedures in place. Within a province that doesn't have a fine option program, it goes even to things like having your driver's license suspended if you continue to ignore the consequences of your criminal conviction.

In terms of the administration of it, the Constitution is very clear that where and how individuals are housed and the administration of that is within provincial jurisdiction. Again, I think this is a fair application of that. It's consistent with our constitutional responsibility to impose penalties under the Criminal Code.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you for that. You may well be right that ultimately it's okay. The reason I'm asking is that when we go back to a landmark decision, the Morgentaler case, the actual reason those provisions of the Criminal Code were struck down was that the Criminal Code was purporting to hold out a benefit of the criminal law, which was, in fact, a defence, that was differentially available across the country. It was that differential availability, including how it interacted with provincial health care systems, that produced the problem with the fundamental principles of justice. This may not be nearly as consequential as what was being dealt with in that case, but it strikes me that there's some analogy there.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think the exact opposite case could be made, which is that now there will be consistency. We won't have a situation where in certain jurisdictions the fine surcharge is routinely waived, for instance, and in other jurisdictions it is applied. We can say with complete confidence that this will apply right across this country. It will be consistent with the provisions of the Criminal Code, and it will apply to everyone.

Again, how the penalty is administered at that point is quite properly within the Constitution of this country, but it is administered at the provincial or territorial level. Again, that's part of the Constitution. They're all dealing with the same penalty scheme, so there's a consistency that's brought about by this which I think will be welcomed.

[Craig Scott, NDP, Toronto—Danforth, ON]

I would grant you that. I think that's absolutely right. That's certainly one effect. It's whether the rest of it would be a problem.

The Wu case, brought up by colleague, basically says that genuine inability to pay is a defence to imprisonment for failure to pay a fine. I'm wondering whether it's your position and the position of the Department of Justice that this decision will cover a surcharge situation as well.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We've been very consistent that there will be a surcharge applied in all convictions across this country. The where and the how of its administration is delegated, of course, to the provinces, under either a fine option program or whatever program is put in place by the provinces.

It will be administered by the provinces. I suppose, quite apart from the constitutional responsibility for the administration of justice, it makes sense, as they're getting the money as well. The money is going into provincial funds for programs for victims, so it makes sense on both of those levels.

[The Chair, Conservative, Dave MacKenzie]

Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Minister, I want to pick up on where we've been going with this discussion. We're talking a bit about certainty on the imposition of a fine.

I found the information you provided in your statement to be quite interesting and worth repeating: 84% of the time in summary convictions, and in 91% of indictable cases, the surcharge was not imposed. As well, when I look at this, you mentioned that even when it was not imposed, there were no reasons suggested for why it was not. Subsection 737(6) of the Criminal Code states that when the court does waive, it has to give reasons.

Would this be part of the reason that you're looking at this legislation? Does there seem to be a strange application of this section going on?

[Rob Nicholson, Conservative, Niagara Falls, ON]

One of the things that people have told me—those who work with me—is that there is no consistency in this particular area. I don't know if there's anybody who would disagree that there is no consistency in that.

It seems to me that, on the one level, there should be consistency with respect to the application of the penalty provisions of the Criminal Code. I think that stands on its own. Quite apart from that, the concept of reinforcing our support for victims of crime and victim services is something that sells itself and commends itself to me, and I'm sure to most people as well. It's a good idea to assist with programs that assist victims of crime in this country.

It seems to me that it works on both levels: that we can and should have a consistency with respect to the penalties that are dealt with in the Criminal Code and, at the same time, that whatever efforts are made by us as parliamentarians to support victims of crime in this country and victim services is something that can and should be supported. I think it works on both those levels.

Why did we do this? You know of our continuing efforts with respect to the support for victims of crime in this country. This is a perfect fit.

But you're quite correct in that at the same time, I've heard for quite some time that there is a complete inconsistency on this. As I pointed out to Ms. Findlay, it has been since 2000 that even the level of the fines has been revisited. We can't go for another 100 years and leave it at 50 bucks for summary conviction offences. You have to take a look at it every so often and ask if it is keeping pace with the demands for victim services in this country so that they're not stuck at a year 2000 level of services and prices. Again, the amount of money going to help victims has to be consistent with that as well.

[Kyle Seeback, Conservative, Brampton West, ON]

In talking about support for victims, it's something that we think is very important. I assume you've done some consultation. I know that the Federal Ombudsman for Victims of Crime, Sue O'Sullivan, has said that we should double the victim surcharge and make it mandatory in all cases, without exception. I take it that she's someone you've consulted with respect to this legislation. It seems that we've hit that nail on the head.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you for raising that. As was pointed out by Mr. Cotler, the former attorney general of Manitoba had asked that we increase the victim surcharge. Certainly, with regard to the Federal Ombudsman for Victims of Crime, as you just pointed out, she too has been calling for changes to the Criminal Code that are very similar to what you're looking at today. Again, nothing's perfect, but I imagine she will be quite pleased when she gets the opportunity to comment on this.

[Kyle Seeback, Conservative, Brampton West, ON]

That's great.

[The Chair, Conservative, Dave MacKenzie]

You have one minute.

[Kyle Seeback, Conservative, Brampton West, ON]

One minute? That's fantastic.

I want to go back to the consistency of the application of this. When you look at the application of this, do you see any circumstances where we are not going to be able to have the new surcharge imposed?

[Rob Nicholson, Conservative, Niagara Falls, ON]

One of the things that we have made very clear in the legislation is that now it is going to be imposed; there will not a waiver of it at the time of sentencing. This is a part of the sentence. If you get a fine there will be an automatic 30% increase for victim services. We have doubled the victim surcharge for all summary and indictable offence convictions in this country. It's going to be across the board. This is going to be built in to the Criminal Code when this bill hopefully is passed out of this committee and gets third reading, and proceeds to the Senate and then royal assent. This will be part of the laws of this country. I think the majority of Canadians will welcome this. I think this is a step in the right direction, as you can tell.