Justice Committee on Oct. 23rd, 2012

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Minister, does the Department of Justice—or provincial sources, for example—have information about the financial situation of people who are brought to justice and who are convicted?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, you'd have to ask each provincial attorney general with regard to how much money. Sometimes they have individuals who have stolen money and end up in court. There are various levels of financial ability of individuals to pay. This is why I believe most provinces now are into the fine option programs. Individuals who for whatever reason cannot or do not want to pay a fine will have that option.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Minister, at a 2011 meeting of the Standing Committee on Finance, the Canadian Association of Elizabeth Fry Societies estimated that four in five women in prison were sentenced for crimes related to poverty. That means that their financial situation does not allow them to cope with the challenges that life throws at them. Could you comment on that estimate?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It may be that a judge, in deciding what penalty is to be imposed, probably takes into consideration an appropriate sentence in each individual case, among other things. It varies with respect to the criminals. I'll tell you what is consistent and that is what I hear from victims in this country. They want to be better informed on what happens. They want to know what's taking place in the court system to make sure that they are either able to get in their statement or to attend hearings. There has been a great consistency among victims in this country as to what they believe criminal justice should be doing to accommodate them, and certainly, that's the bottom line here.

The bottom line is to make sure there is consistency of application of the Criminal Code, and to make sure we send out that message to victims. We will do everything possible to look after their interests and to make sure their concerns are heard in our criminal justice system.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Do I still have time? No?

Thank you, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Minister, for being here.

We'll take a short break now until the minister leaves and then we'll reconvene.

[The Chair, Conservative, Dave MacKenzie]

We'll call the meeting back to order.

Welcome, Ms. Morency and Ms. Arnott.

I understand that Madam Boivin may have a question or two.

[Françoise Boivin, NDP, Gatineau, QC]

I have a few quick questions about Bill C-37. They are rather technical or legal in nature.

In the Crowell decision, the court rejected the arguments that the victim surcharge should be considered a provincial tax. That was the big debate. Yes, sometimes, when we look at automatic surcharges, we are likely to think that it is a good way to pad the government's coffers, although the objective to help the victims is commendable. Those arguments had not been accepted by the court, because they were instead perceived as the result of the federal government exercising its criminal jurisdiction under section 91(27) of the Constitution Act. They were rejected in part because the court relied on the concept that the victim surcharge imposed in the sentencing process was an expression of public disapproval and the fact that it was not mandatory.

The fact that it will be wall-to-wall, meaning mandatory, worries me. Are we not in danger of having to deal with the same problem that led to the Crowell decision? Are we not in danger of taking this measure only for it to be perceived as a hidden tax to collect funds and send them to the provinces as a way to divest ourselves of our obligations towards the victims?

Furthermore, I am not sure I heard a clear answer from the minister about this. Should the Wu decision not continue to be applied? Otherwise, could it not be a case of unusual punishment under section 9 of the Charter, for instance? Have your services examined all those aspects?

[Pamela Arnott, Director and Senior Counsel, Policy Centre for Victim Issues, Department of Justice]

If I may, I will start with the first part of your question.

In our view, it is not a tax. This bill actually specifies that judges must follow the overall sentencing principles, meaning the totality principle and the principles of general deterrence and specific deterrence.

So we don't see it as a tax, especially since a number of provinces have option programs. As a result, that provides for a solution other than prison. In the provinces and territories where there are no such programs, there are other measures, such as community services or other services, that allow offenders to fulfill their surcharge obligations.

[Françoise Boivin, NDP, Gatineau, QC]

I would like to go back to the Wu decision, if you don't mind. Do you think that the amendment to Bill C-37 applies to the Wu decision?

[Pamela Arnott]

In our view, it does not apply. Let us turn to the practical side. In most provinces, there is the option of community service programs. They have the so-called fine option programs. The provinces that don't have those programs have other measures. In practical terms, we feel that there is no such violation.

[Françoise Boivin, NDP, Gatineau, QC]

What would happen if someone is unable to fulfill their financial obligations or if the person has a mental or physical disability preventing them from working? Have you looked at the issue from that angle?

[Pamela Arnott]

I can give you some concrete examples. For instance, in Newfoundland, there is the option of paying in instalments. If the offender does not pay the surcharge on the spot, they can do so over a certain period of time. Other provinces have similar programs.

Once again, in our view, offenders can fulfill their surcharge obligations without there being a violation of section 7.

[Françoise Boivin, NDP, Gatineau, QC]

In a dire financial predicament, such as a person on welfare, will those people have to pay over a period of 25 years? In addition, a person may have a physical or mental disability. There are cases like that. We are certainly going to hear witnesses talk about extremely tough situations that first nations are experiencing, for example. Unfortunately, many aboriginals are sent to jail.

Have those cases really been studied? We keep talking about the judicial discretion that used to exist. Granted, perhaps it was misapplied, because we no longer know why they refused to apply the surcharge. But we could limit judicial discretion instead of removing it completely. Have you considered that?

[Pamela Arnott]

We have consulted with the provinces and territories about the challenge with people who have no resources. They feel that they are able to face that challenge. In addition, a number of provinces subscribe to a Canada Revenue Agency program through which fines can be paid by a withholding tax.

[Françoise Boivin, NDP, Gatineau, QC]

You mean tax deductions at source.

[Pamela Arnott]

Exactly.

[Françoise Boivin, NDP, Gatineau, QC]

Okay, thank you.

[The Chair, Conservative, Dave MacKenzie]

Mr. Goguen.

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

Thank you, Mr. Chair.

There's been quite a lot of discussion focused on the fine option program. We've learned that there are three provinces that don't have the fine option program. The fine option program is administration of justice. It's clearly a provincial competency, so it's not something we can delve into.

The opposition seems to be equating the absence of a fine option program to a form of undue hardship. Yet you have explained to us that provinces that don't have a fine option program proper have other means. We've talked about payment through Revenue Canada and suspension of driver's licences.

In the case of the victim surcharge, the fund goes to the province. Could a province that didn't have a fine option program use the funds from the fine option program to set up a fine option program?

[Pamela Arnott]

Each province and territory has legislation that specifies what the funds can be used for, and for a number of provinces and territories, that is absolutely what the funds could be used for. That's the short answer. All provinces and territories have legislation that specifies what revenue from the federal and provincial surcharge will be used for.

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

Within the scope of their constitutional authority, they would be able to set up the fine option program and use the funds coming from the surcharge. Is that the short answer? We could do a constitutional law course, but we're not here to do that. That's the short answer. Is that correct?

[Pamela Arnott]

Yes, sir.

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

Thank you.

Thank you, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler.