Justice Committee on Oct. 23rd, 2012

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chair.

I'd like to pursue two issues that were brought up by my colleagues, both with respect to two Supreme Court judgments. One was the Wu case; the other was the Crowell case. The Supreme Court, in R. v. Wu, held:

it is irrational to imprison an offender who does not have the capacity to pay on the basis that imprisonment will force him or her to pay.... For the impecunious offenders, however, imprisonment in default of payment of a fine is not an alternative punishment—he or she does not have any real choice in the matter.

The court also said, “At least this is the situation until fine option programs or related programs are in place.”

You answered, with regard to a question whether it was applicable to victim surcharges, that in fact the judgment was not applicable to victim surcharges. Would you agree that enforcement of non-payment by incarceration should be an available option only where a fine option program is available?

[Pamela Arnott]

Mr. Cotler, I can speak to the victim surcharge. In that case, as I've mentioned, there are a number of programs that would alleviate the problem of an absolute and utter inability to pay. I'm not able to speak to the broader question of imposition of fines broadly.

[Irwin Cotler, Liberal, Mount Royal, QC]

Would the government support an amendment to the bill that would codify the Supreme Court's decision in Wu as applied to the enforcement of the victim surcharge?

[Pamela Arnott]

I'm sorry, Mr. Cotler, I can't speak to that.

What I can say is that we believe the current existence of fine option programs and the other programs in provinces and territories that don't have a program would alleviate that problem of an offender's having a complete and utter inability to pay.

[Irwin Cotler, Liberal, Mount Royal, QC]

The court in the Wu case clearly indicated that it was a prohibition of incarceration because of inability to pay, and that such a situation would obtain until fine option programs or related programs are in place.

I'm saying, in the event that they are not in place, would not the Wu decision in fact hold even with victim surcharges? That is a situation we're confronted with.

[Pamela Arnott]

I would also point you, Mr. Cotler, to the coming into force provision of this bill, which provides that the coming into force can be set on a future day or days. We have an excellent relationship with the provinces and territories in terms of victims of crime and can have conversations with them about their ability to administer and adapt to this amendment.

[Irwin Cotler, Liberal, Mount Royal, QC]

I want to move to the court in R. v. Crowell, which rejected the argument that the victim surcharge—it being mandatory in all cases—could be deemed by the courts to be a tax under provincial jurisdiction.

They rejected such an argument in part on the grounds that the victim surcharge imposed as part of the sentencing process was an expression, as they put it, of public reprobation and that it was not compulsory. The court also added that the surcharge’s “role as a deterrent is incidental to its fundraising purpose”.

I have two questions. One is, in your opinion, is the surcharge’s primary purpose to punish the offender or to raise funds? The second is, does the proposed compulsory nature of the victim surcharge under the bill affect the Crowell analysis with respect to whether this is in fact a matter within provincial jurisdiction or within a matter criminal law?

[Pamela Arnott]

The first thing I would say is that in regard to victims of crime, we are very conscious that this is an area of shared jurisdiction with the provinces and territories and that, when the federal government is going to legislate in regard to victims of crime, we have to limit our legislation to that which is properly within federal competency.

These amendments, we believe, are within the federal prerogative for criminal law as part of a sentence. We believe they fit within the principles of sentencing and specific general deterrence and also respect the principle of the totality of the sentence.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Scott.

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

Thank you.

I only have one question, but depending on how you can help me, we might need to follow it up.

You said Wu doesn't apply, but as far as I understand it, the principles in Wu are pretty clear. There are two dimensions to saying it wouldn't apply. It wouldn't apply because it actually didn't deal with surcharges, and therefore in some technical term it doesn't apply, but if you look at the principles, it would have to apply.

What I heard from your answer was that we don't expect it to be needed. You gave examples of how even provinces without the fine option programs can alleviate to the point that you wouldn't end up in the situation of needing the Wu principle.

Can I have some clarity on whether you firmly believe it does not apply in that strong sense, or whether it does not apply in the sense that we don't envisage its being needed, though the principles are still applicable to surcharges?

[Pamela Arnott]

In our view, it's the second aspect of what you've identified that is the predominant factor. When you look practically at a case, the ability of all provinces and territories to find alternative means to obtain satisfaction of a sentence is what would stop that imposition of fundamental justice.

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

That's great. Thank you. For me, that's really an important clarification.

I would just say in response to Mr. Goguen's drawing this out and your points that we would certainly benefit from knowing a bit more about the programs, or the approaches in those provinces that don't have fine option programs, so that we can be more comfortable understanding what is available. Maybe we're worrying about something that needn't be worried about. Whether the Department of Justice can help us or whether we should be asking the Library of Parliament to do a little research, I'm not sure, but to the extent that you can help us, it would be great.

[Pamela Arnott]

Okay, I'd be happy to do that. I also would suggest that it really is a matter of the provinces and territories. I can relate to you what they have related to me, but they are obviously your best source.

I will give some examples. I can speak to Ontario; someone mentioned Ontario earlier. Ontario doesn't have a fine option program, using that name. Some of the options they use, though, are that they do use licence suspension, and not only driver's licences, but hunting licences and fishing licences. They will use civil enforcement for very large amounts. Where there was a large fine and the surcharge was included in that amount, civil enforcement is an option. They'll use demand letters, which crown attorney offices will produce. They'll use writs. They'll use set-off of provincial or territorial payments. They also are part of the federal set-off program, which as I mentioned before, is a Canada Revenue Agency program.

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

Thank you. That helps me a little bit. I'd have to be thinking more quickly on my feet than I'm capable of to know how much those examples apply to the kinds of folks who might be in the situation of being unable to pay. For example, a driver's licence might not apply.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Ms. Findlay.

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

This is probably more of a comment than a question. I am a member of Parliament from British Columbia, and B.C. is one of the jurisdictions that does not have this program. I can only say that I've seen from my experience that in any situation really where someone needs to pay a fine or a court-imposed or hearing-imposed amount of money, if they do not have the ability to pay—say, they are on social assistance or just out of work or whatever—there are mechanisms to go before what we call in B.C. a registrar and ask for time to pay, ask for some other way to deal with it. Even in what I would consider very reasonable or small fines such as $100 for a summary conviction, I have seen people being given many months to come up with that, at so much per month. It is recognized in our concurrent judicial systems that some people simply have a hard time even meeting those obligations, but I know they are given time to pay, with very modest amounts.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Ms. Morency.

[Carole Morency]

To go back to some of the minister's remarks, he noted, for example, that judges will have discretion in the cases in terms of assessing the appropriate sentence to impose in that case on the offender before the court in all of the circumstances. Whether it's a period of imprisonment and/or a fine, if the judge decides not to impose a fine, maybe there's another sentence. That's one way to address it directly. In the instance where there isn't a fine, the bill would require a flat amount to be paid, which is nominal but, as you say, could nonetheless have an impact for certain accused before the court. With those processes to deal with that, whether it is in a province that has a fine option program, which is the majority, or in the few that do not, obviously again there is a recognition that it could have an impact and there are measures available within those provinces to deal with it.

We've undertaken to see if we can provide some information that might be readily available to the department. It may be that the committee may wish to consider hearing from a witness from one of those provinces more directly to speak to that, but we'll see what we can provide.

[The Chair, Conservative, Dave MacKenzie]

I would just say to the committee that you have excellent analysts here, and the analysts will endeavour to bring back some information for you on those things, at the next meeting or two meetings down the road.

[Françoise Boivin, NDP, Gatineau, QC]

If we could get information on the provinces' programs, that would be very helpful because, from what we read already in the research, not all provinces have the same programs. How does it work? It is important for us to be sure it covers pretty much everything and, as you said, you don't have any serious worries that the extreme cases don't fall through the cracks and that a court would be forced to impose jail because the person had absolutely no other way of fitting into any program. That would be helpful.

[The Chair, Conservative, Dave MacKenzie]

They'll endeavour to bring you back as much as they can, recognizing that time is a little short. I'm sure that they'll have excellent information.

We still have a minute left from Ms. Findlay, if you want to use that.

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

I'll take a minute.

I'm more than curious to find out what all the programs do provincially as well. We must bear in mind that we have no jurisdiction to impose upon them whatsoever as to what they do. If it's only for intellectual curiosity, fine. They probably have the capability. But we must bear in mind that we have no sway with them. That's all.

[The Chair, Conservative, Dave MacKenzie]

Our excellent analysts will bring it back for you.

Go ahead, Mr. Côté.

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

Thank you very much, Mr. Chair.

We have some specific data about New Brunswick. My thanks to Ms. Arnott and Ms. Morency for being here to answer our questions.

I could not help but think about the financial impact and the absorptive capacity in the fine payment option program. Have the department or the provinces been able to give you an idea of how expensive it might be to absorb or whether the capacity on the ground is sufficient to handle the work to make up for credit systems like those? I might have written it down incorrectly. In New Brunswick, in two-thirds or three-quarters of cases, there is no surcharge imposed. This will make a huge difference.

[Pamela Arnott]

I am sorry, but I want to make sure that I understood your question correctly. Are you asking to what extent the provinces will be able to absorb the impact of fine option programs?