Justice Committee on Oct. 30th, 2012

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

You have no role to give recommendations, but you're not aware that the provinces are prepared to change their laws...?

[Susan O'Sullivan]

No.

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

Of the three provinces without fine options, one of them has no mechanism for an alternative, and that's Newfoundland and Labrador. B.C. doesn't make the licence suspension mandatory. Ontario does.

In respect of provinces without fine options having alternatives, do you think we should be addressing this in Bill C-37? Do you think that in these provinces there must at least be something other than the fine option? There would be a problem in Newfoundland and Labrador and there might be a problem in B.C., because it's a completely discretionary thing; it's not mandatory to suspend the licence when you can't pay the fine.

[Susan O'Sullivan]

I'm going to refer to my earlier comment, which is that having Bill C-37 will bring about consistency at the federal level. It is then up to the provinces and territories to determine if they're going to have one and what their fine option program would look like.

From my look at the provinces, I'll say that there are different things in place. In Newfoundland and Labrador, that includes letters, notices, telephone calls, asset searches, suspensions of driver's licences, federal payments set-offs, and financial counselling. They do have some things in place. I certainly bow to the Library of Parliament on their research.

This is going to bring about some consistency in creating support for the provinces and territories to increase services for victims of crime. I'm hearing from a lot of different people that the provinces and territories vary in including fine options. We hear the same thing about services for victims of crime. Criminal injury compensation, for example, is not available in the north or in Newfoundland. We want to ensure that victims of crime, wherever they live in this country, can have access to these services. It is a good direction to move in.

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

Thank you.

[The Chair, Conservative, Dave MacKenzie]

You have one minute.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

I will try to be quick.

Let me say from the outset that the NDP supports victims of crime, their families and their communities, as we were able to clearly see in previous testimony. They are often collateral victims.

The NDP also supports better funding for programs for victims. In our view, that is where money should be invested.

We also recognize the importance of supporting judicial discretion. Judges are in the best position to decide whether a person is able to pay the surcharge or not. Cases of extreme poverty, as it has been pointed out, mental health problems, intellectual disabilities, and so on, are real obstacles to payment.

In addition, I used to be a criminologist. I know that criminals like to wash their hands of it all, pay a fine of $100 or $200 if they can afford it and get off easy. That is what they love. I, for one, am in favour of prevention. That is the best way to reduce the number of potential victims.

[The Chair, Conservative, Dave MacKenzie]

I'm sorry. You've used up all of your time and a little bit more, and we're on a schedule.

Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Thank you, Ms. O'Sullivan. I read your report. I think it was excellent and a great service to victims.

You talked about 80% of the costs of crime being borne by victims, which is something that far too often gets lost in discussions on criminal justice policy. It's great that you've raised this again.

Strangely enough, while this legislation has broad-based support, there are people who are opposed to this legislation. I don't understand why. There's a group coming to testify later this afternoon, the John Howard Society, and I suspect they are going to suggest that they are not in favour of this legislation. They've opposed every piece of crime legislation that we've put forward in this session of Parliament.

What do you say to organizations that wouldn't support this and don't think that individuals who commit crimes and victimize people should actually play a role in funding the services to help the victims?

[Susan O'Sullivan]

We can never lose sight of who has suffered the harm and the loss here. If we look at the issues and principles of sentencing, we can see that this is about reparation of harm to victims and to the community at large, but it's also about the accountability and responsibility of the offender.

I am going to use my line about a longer-term lens. I'll use one example from the United States, where people can understand that people might not have the ability to make an immediate payment.

With this legislation, the amendment would allow people to do community service and to give back to their communities. I recognize that some provinces may have to look at how they are doing that.

My one example from the United States is the federal inmate financial responsibility program. It's voluntary. Over the last 10 years, there has been a dramatic increase in the amount of inmates participating in that and the moneys raised.

So I think that sometimes.... I hesitate to use one meeting with a group of offenders, but when I actually met with offenders on one occasion, they told me that they don't have a mechanism, that they want to contribute back, so part of that rehabilitation for some is to do that in their corrections plan. So our recommendation is in the report, Shifting the Conversation, and it's looking at multiple ways that we can look for involvement and in society supporting...because, really, if you want to talk about a balanced criminal justice system, it's one that also recognizes the rights and the needs of and the supports for victims of crime.

I'll just say I agree with your comment about prevention. There is an entire continuum out here. It starts with prevention. When that doesn't work, it's early intervention, and when that doesn't work it's enforcement, and then we're into the criminal justice system. They're all important. It's not an either-or here.

But we can never forget that for the victims it's not a balance right now. We need to rebalance that. We need to ensure that victims have those supports in place and can deal with the aftermath of that crime. That's what victims struggle with. They understand that people are coming back into the community and they don't want them to reoffend.

But what they can't understand is why they don't have a lot of these supports and a lot of the rights in place. That's what I think this is a positive step towards.

[Kyle Seeback, Conservative, Brampton West, ON]

Certainly, part of that—part of any rehabilitation, I think—is accepting the consequences of your actions. Would another part of that not also be contributing to lessening the harm that's been caused? Would you agree that this is also a significant part of it? If we continue on the same road, we're actually holding people less accountable for the acts, especially these serious violent acts.

[Susan O'Sullivan]

I would even build on that and encourage the provinces and territories to ensure that they have those conversations and discussions. I can't make recommendations.

[Kyle Seeback, Conservative, Brampton West, ON]

The other thing we hear is that somehow the quantum is unreasonable, that it's going to be very difficult for people to pay. Putting aside the unique circumstances that some people might find themselves in—and I think it's the rare circumstance—do you believe it's unreasonable to charge $200 to an individual who has committed an indictable offence and who likely committed serious harm against an innocent person in society?

[Susan O'Sullivan]

I will use federal offenders as an example. As we know, they can earn wages, and they can also have an income account in the federal penitentiary. I think most victims of crime would find it reasonable that reasonable amounts be deducted from that so they can meet their debt—

[Kyle Seeback, Conservative, Brampton West, ON]

Right.

[Susan O'Sullivan]

—in terms of their $100, or in the case of indictable, $200.

[Kyle Seeback, Conservative, Brampton West, ON]

Do I have any time?

[The Chair, Conservative, Dave MacKenzie]

Yes, you have a little.

[Kyle Seeback, Conservative, Brampton West, ON]

Would you have any knowledge of how long it would take for somebody who's participating in one of those offender programs in jail to repay a $200 fine, whether it's through their cash or their account?

[Susan O'Sullivan]

I'm not sure how much per day they can make in wages. I realize it's not a lot, but we're talking about $200, a small amount. Some inmates can have income accounts that have quite a bit of money in them.

[The Chair, Conservative, Dave MacKenzie]

Thank you. That brings us to the end of this session.

I want to thank you, Ms. O'Sullivan, for being here and providing the committee with a wealth of information. We'll just take a short break while we change and bring in the panel for the second half of today's meeting.

Thanks again.

[The Chair, Conservative, Dave MacKenzie]

I will call the meeting back to order.

Our witnesses perhaps weren't present, but I indicated that we have a little problem with time today, which seems to be a usual situation. We cut the first one a little bit short and we'll cut you a little short. We have to be finished by 5 o'clock to deal with some committee business and with votes that are going to happen today.

Welcome, Mr. Waller and Ms. Latimer. It's an important subject.

If you have an opening address, please go ahead. Ms. Latimer, if you wish to start, that would be fine.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

Thank you very much.

As you know, the John Howard Society of Canada is a community-based charity committed to supporting effective, just, and humane responses to the causes and consequences of crime.

The society has more than 60 front-line offices across the country, with many programs and services to support victims of crime through direct services, restorative justice, and victim-offender mediation.

Almost all of our societies contribute to victim prevention by working with those at risk of offending or reoffending. Our work helps to make communities safer.

I want to thank you for your kind invitation to be here to speak to Bill C-37, which proposes to double the victim surcharge and remove the discretion of judges to waive the surcharge if it would result in financial hardship.

These simple amendments, in their current form, will have serious and unfair consequences for the most marginalized Canadians facing criminal law, and will place further stress on a justice and corrections system already in crisis.

I would like to make essentially four points about Bill C-37. The first deals with undue financial hardship.

Removing the discretion of the judiciary to waive the surcharge where it would result in financial hardship will lead to harsh consequences for the poor, mentally ill, and marginalized. While it might be possible to participate in fine option programs, they are not universally available, and many people, owing to senility, FASD, mental health issues, and other problems, cannot complete such programs.

To impose a fine through a sentence, subsection 734(2) of the Criminal Code requires that the judge must first be assured that the accused is capable of paying the fine or discharging it through a fine option program. No consideration of means or ability to pay is required with a mandatory victim surcharge. It is likely that more of those unable to pay the victim surcharge will find themselves in default of the order and subject to imprisonment.

It raises some very challenging questions. In May 2011, for example, newspapers reported that an Alberta man refused to pay the victim surcharge for a transit infraction, and was killed while detained in the Edmonton remand centre. Many provincial correctional facilities are crowded and violent, particularly for those made vulnerable by mental health issues.

The second point I would like to make relates to disproportionate penalties. A sentence is intended to reflect a proportionate penalty relative to the seriousness of the crime and the degree of responsibility of the offender. Victim surcharges are described as additional penalties imposed on convicted offenders at the time of sentencing. They are over and above what a judge determines is an appropriate sentence.

These add-on penalties inflate an otherwise fair sentence. If it results in a total penal consequence that is disproportionate, it could violate the charter's section 12 protections. Fixed surcharges that cannot be calibrated to the seriousness of the offence or the offender's ability to pay will have a particularly harsh effect on the poor.

Three, there are some questions about whether victim fine surcharges, per se, make offenders more accountable to their victims. Many programs—I'm sure you'll hear about more of them from Professor Waller—including restorative justice, succeed in making offenders more aware of the impact of their crimes on victims, help victims, and lead to reductions in recidivism. It is unlikely the surcharge per se will make the offender more accountable to his or her victim.

The surcharges are not linked to the degree of harm experienced by the victim. In fact, they are applied in victimless crimes or where the offender self-harms by the offence, such as through drug use. The failure to link the surcharge to the circumstances of the victim will not serve to make the offender more accountable to his or her victim. It will likely build cynicism, which is the opposite of the stated policy intent. Victim surcharges will appear to offenders as an additional penalty, or at best a source of revenue for services to some victims.

There are also some questions about the need for increase in the provincial victims services funds. The federal victims strategy evaluation, posted on the Department of Justice website, shows a significant lapsing from the federal-provincial-territorial component of the fund. Table 7 shows that of the $16 million made available, the provinces used $3 million, leading to a lapse of $13 million.

While this might have been a designated-purpose fund, before invoking changes that will hurt the poor, it would be good to know how provinces are currently using their victim surcharge revenues, and whether there have been any further resources lapsed. Provinces are also generating revenues from victim fine surcharges connected with provincial infractions.

In another study posted on the Department of Justice website, “Federal Victim Surcharge in New Brunswick: An Operational Review”, the Attorney General of Manitoba proposed a victim surcharge increase from 15% to 20% on fines. Linking the increase to fines and the related statutory ability-to-pay considerations would provide welcome protection for the impecunious. It would be a much more modest increase in the significant generation of revenues that would likely flow from these amendments.

In conclusion, the John Howard Society strongly supports effective programs for victims and victim prevention. Increasing surcharges and making them mandatory will not achieve the policy objective of increasing accountability of offenders to victims.

The amendments proposed in Bill C-37, however, will have very serious implications for the poorest and most marginalized facing criminal charges. Without an amendment allowing judicial discretion to waive victim surcharges when they would result in hardship, we can expect to see injustice and inhumanity flowing from this bill. More brain-injured, developmentally delayed, senile, and mentally ill will default on the surcharges and perhaps find themselves in increasingly crowded, dangerous provincial jails.

We urge the committee not to proceed with this bill. If it does, we ask the committee to amend Bill C-37 to allow judicial discretion to exempt the offender from having to pay the surcharge where it would result in undue hardship.

Thank you very much.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Waller, if you have an opening address, please deliver it.

[Dr. Irvin Waller, President, International Organization for Victim Assistance]

I'm the president of the International Organization for Victim Assistance. I have been working to get services and rights for victims for some 40 years and I have recognition in the United States and a number of other countries for my work. I've recently done a book, which actually was written for the people around this table, called Rights for Victims of Crime: Rebalancing Justice.

In relation to Bill C-37, this book says we should be paying for services for victims out of general revenue; that's where we pay for most other services. However, I'm a pragmatist, and any progress to help victims is worth it. I've been an advocate—a reticent advocate—for fine surcharges since they were first introduced in the U.S. in the seventies and early eighties and when they came to this country in 1989.

I think Bill C-37, with the doubling of fine surcharges, is a reasonable step to take. However, I think it's extremely important to see that Canada is way behind other countries in terms of what it does for victims, and we should not confuse a doubling of the fine surcharge with a genuine strategy to meet the needs of victims.

The $83 billion in harm for victims is totally inexcusable in a country like Canada; that's the data used by the Prime Minister's Office earlier this year, or maybe late last year. The fact of 440,000 violent crimes known to the police is totally inexcusable in a country of this wealth. Also, totally inexcusable are the 1.3 million property offences known to police.

The most inexcusable statistic used by the Prime Minister's Office is that only 69% of victims in this country go to the police. These are third world statistics. Once you begin to provide services for victims, once you begin to get police providing information to victims, and once you get some sort of reasonably coherent system of criminal injuries compensation, you can expect more victims to go to the police. I think that's what you see from looking at other countries.

Just to back up what you see in other countries, let's go to the United States for a moment and see what they did with victim fine surcharges. They didn't just go after the small-time offenders. They went after big corporations. They actually raised more than a billion dollars a year out of the Victims of Crime Act that dates from 1984. These are fines on major corporations that have cheated in some way.

I'm concerned that while we double these sorts of fine surcharges, we make sure that our courts and the regulations are such that we can see, maybe not billion-dollar fines, but a hundred-million-dollar fines here, and I think this will enable us to have, from coast to coast, the sorts of services we need.

Let me take you for a moment to the European Union. They recently adopted a directive that applies to 27 countries—not 10 provinces, but 27 countries—where the inhabitants don't even speak the same language, and 75 million victims in an area of 500 million people will now have guaranteed access to victim services.

This will not guarantee access to victim services for victims in this country. We should be making sure this happens. If the European Union can do it, then we can do it.

The Prime Minister of the United Kingdom recently said that prevention is the most effective and most cost-effective way of dealing with crime and everything else is picking up the pieces. Well, guess what? The United Kingdom just recently introduced a restorative justice procedure across the whole of England and Wales. They've done this because the evidence shows that victims are much more satisfied with restorative justice, and it's an effective way of reducing recidivism.

My plea here is, yes, go ahead with this legislation, but let's get a bipartisan, tripartisan piece of legislation. Every year I give a speech to the bipartisan caucus of the U.S. Congress. This does not have to be a political game. This is something that all sides of the House can agree on.

Let's get a real action plan that is actually going to reduce the number of victims significantly and that is actually going to provide services to all those victims who need it. It's not that costly in a country like this. It's going to ensure that police forces give information—including the RCMP, who are controlled by a federal act—that we get a much greater participation of victims in the process, and that we get a real, genuine policy to reduce that $83 billion.

We, in the next five years, with leadership from the federal level, could reduce those statistics on violence and property crime, including those who don't go to the police, by 40% to 50%, for a percentage of what we are currently spending on reacting. We need to do that. That's what a genuine policy that is going after the needs of victims would be about that.

Thank you.