Justice Committee on Oct. 30th, 2012

[Susan O'Sullivan]

Absolutely, and as a matter of fact, I may just even refer to my testimony last week on Bill C-44. I think we heard very powerfully from families who had lost loved ones to homicide. They talked about the impact on the other siblings in the family in terms of the supports they need.

We heard, again, about the definition of “victim”. For example, in the U.K. they use the words “victim witness”. There are many people who are touched by a crime. In families, particularly in a homicide, people often will say that the siblings are the silent ones who we don't hear from but who are obviously tremendously impacted.

We know from research and studies that many families—I'll just use homicide as an example—will go through not just loss of income, but also the need for supports and other concurrent issues that may recur as a result of their victimization. We need to have those supports in place to ensure that families and victims are able to cope with the aftermath of a crime, through the criminal justice system and beyond.

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

Thank you for your insight.

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

Thank you for being with us, Ms. O'Sullivan. I know that we've talked about these issues in the past.

I'd like to refer to your report on this issue, Shifting the Conversation. Your special report makes several recommendations, one of which is that the amount of the federal victim surcharge should be doubled. I'm wondering how you arrived at this recommendation.

I know that your report refers to a 2005-06 study by the New Brunswick Department of Justice, but in that study by the New Brunswick Department of Justice, the responses were of a different variation. There were those who said there should not even be a victim surcharge when there was an inability to pay, and there were differences as to what the amount should be.

My question is this: was there any consultation on your part with provincial and territorial Attorneys General? Did they make any recommendation with regard to that? I say that because I recall that at the time, in 2005, the recommendation that I remember is from the then Manitoban Minister of Justice, Mr. Chomiak. His recommendation was that it be increased to 20%, not 30%, so I'm just wondering how we arrived at the figure of 30%.

[Susan O'Sullivan]

Many of the recommendations in Shifting the Conversation.... If you go back, you'll remember that the report Victims' Rights—A Voice, not a Veto came out with some main themes. This office was created in 2007. That recommendation occurred when the former ombudsman was there.

I had an opportunity to speak to the federal-provincial-territorial committee, which was led by Pam Arnott,of the Policy Centre for Victim Issues. I had an opportunity to present the special report to the heads of victim services. When I spoke to them, I clearly outlined what we would be asking for in our recommendations. I didn't receive any feedback that any changes should be made; I was sharing with them what those recommendations were.

I can also tell you that over the last two years I've had opportunities to speak to victims across this country and to speak to, for example, judges. I've had the opportunity to speak to a large group of judges, crown attorneys, different people in the criminal justice system, victims, victim-serving agencies, and academics. Of course, part of my job mandate is to inform people of the priorities for victims of crime.

I've taken every opportunity to be out there publicly in Canada to speak about Shifting the Conversation and its recommendations. In fact, one of the main reasons we did this was to engage Canadians in a conversation on that. Obviously, we did consult on this report with victims and victim-serving agencies. Specific to the question of what the amount should be, I did not. I discussed the recommendation, as you quite rightly stated, that it would be doubled and made mandatory.

[Irwin Cotler, Liberal, Mount Royal, QC]

This leads me, then, to a question that I know my colleague, Françoise Boivin, has been addressing. It is the decision of the Supreme Court in R. v. Wu, which held that “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”.

What would your response be to the idea that enforcement of non-payment by incarceration should be an available option only when a fine option program is in fact available?

[Susan O'Sullivan]

I'm sorry: what is the question?

[Irwin Cotler, Liberal, Mount Royal, QC]

I'm saying that the Supreme Court, in the Wu case, basically said that people should not be incarcerated because of their inability to pay. In other words, as they put it:

...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. At least, this is the situation until fine option programs or related programs are in place.

If you look at the situation in the provinces, you'll find a serious variation as to whether, in fact, a fine option program is in place. For example, there is no fine option program in either Ontario or Newfoundland and Labrador. In Manitoba and Alberta, for instance, entry into the fine option program is only available at the point that an offender is admitted to jail.

How would you respond to the fact that the enforcement of nonpayment through incarceration should only take place when a fine option program in the provinces is in fact available, to be consistent with the judgment of the Supreme Court in R. v. Wu?

[Susan O'Sullivan]

My understanding is exactly as you said. Seven provinces and territories have fine option programs, and three—British Columbia, Ontario, and Newfoundland—do not. Basically, my understanding is that if you're unable to pay a fine under a fine option program, there are still other mechanisms in place for that.

I would hope, as I said in my other comments, that the Department of Justice would have the conversation with British Columbia, Ontario, and Newfoundland and Labrador about how they might go about doing that. At the end of the day, what we're trying to say here is that the end result is that victims should have better access to services to help them cope with the crime that has been committed against them. In order to do that, this is one area where we can start to bring about some consistency in terms of how we're dealing with this.

In British Columbia, they can make application to a judge, as you say, to serve time to satisfy a fine and also to have the fine converted to community service. That's from some of the research we did. In Ontario, licence suspension, civil enforcement, automatic demand letters, federal payment set-offs....

Again, if we take a longer-term lens, if a person can't pay at the time of sentencing, the person can go to the fine option program or to those other mechanisms. If somebody is incarcerated in a federal institution, for example—we deal with federal offenders—they make some wages, and they can also have an income account. We're talking about $100 and $200, if it's not a fine that has been imposed. Is there any reason they can't be paying reasonable amounts throughout their incarceration to again meet those sentencing principles? It is not just reparation for harm to the victim; it's about accountability and a responsibility to pay that debt.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Albas.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Thank you very much, Mr. Chair.

Thank you to our witness for being here today.

As you're well aware, victim services are extremely important and need to ensure the well-being of law-abiding Canadians who have unfortunately been victimized as a result of the unlawful behaviour of another individual. As everyone around this table knows, these services are provided at the federal level, but even more so at the provincial level. By increasing the victim surcharges and making them mandatory in all cases, Bill C-37 will ensure that more money will be sent to the provinces to increase support in services to victims across this country.

I should also mention that I've spoken to one particular family that was a victim of a drunk-driving incident. They weren't even aware that some of these services existed and were very supportive upon hearing that we were looking at doubling the surcharge.

In another tragic incident in my riding, the mother of a family was murdered. The family is currently going through all the things you mentioned in the report, including access to counselling, etc. They're very supportive, and they actually didn't even know that there were these resources.

Do you think this increase of funding for victim services will be well received by the provinces and by organizations on the ground?

[Susan O'Sullivan]

Absolutely, and as a matter of fact, I've had the opportunity to deal with a lot of front-line people delivering those services. I have to tell you that there are some tremendous people in our country who are making a huge difference, with very little funding, to try to deliver on some of the programs. They're trying to meet the needs of victims of crime. The more financial support we can give to victims and victim-serving agencies to be able to support victims of crime...obviously it's going to make a difference.

If we talk about healthy and safe communities, that means taking care of victims of crime as well. They need to be able to deal with the aftermath of that crime and those very practical real-life realities they face. It can be something as simple as this: if you have to go to court, how are you going to get there? If you have to go to court, do you have child care issues when you get there?

I'll give you another example. I talked to another mom whose son had been murdered in another province. She was scraping together the money to pay for her hotel room for six weeks. I realize that's a provincial responsibility, but it also speaks to the variability amongst the provinces and territories in terms of services available. It's our hope that more money coming from the victim surcharge will help the provinces and territories in addressing better ways for victims of crime to access services.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Some examples of programs and services funded by the surcharge are about information on the criminal justice system, such as court processes, court preparation, and court support for vulnerable persons—like you said, even as far as how you deal with child care—and victim notification of the offender's release from a provincial institution.

I would imagine that with making this mandatory, there would be increased funds that would go to these victim services. There's also the consistency, so that maybe they can plan out their operations over a broader period of time. What kinds of programs or tweaks to the existing programs do you think this bill would help along?

[Susan O'Sullivan]

I think that's a question you would want to pose. I always say, “Let the patient tell you what the problem is.” As we know, we have very unique communities in our country. I had the privilege of being up north, for example, and saw the challenges that fly-in communities face with regard to access to services. That's just one example. I think it is absolutely within the mandate of the provinces and territories to have that discussion about where their greatest needs are or where capacity-building would be in terms of the use of that money.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Is it your sense that by increasing the surcharge and by making it consistent, we're going to be able to give that certainty to the provinces so they can go to their communities, have those conversations, and say that here's what the federal government has done, so what will we do from this point on to help victims?

[Susan O'Sullivan]

It's my understanding they do have agreements in place already in terms of how that money can be used, so I would really defer to the provinces and territories on that.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

All right, but your feeling is, though, they would be well-received and—

[Susan O'Sullivan]

Oh, yes.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Good. I certainly appreciate that.

Mr. Chair, how much time do I have left?

[The Chair, Conservative, Dave MacKenzie]

You have about 40 seconds.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

I just want to thank you, Ms. O'Sullivan. I've read the reports your office has put out. I think they're excellent reports. I certainly appreciate your opinions and your testimony here today.

Thank you, Mr. Chair.

[Susan O'Sullivan]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Scott.

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

Thank you, Mr. Chair. I'll try to be quick and then pass my time to Monsieur Jacob.

Thank you for coming, Ms. O'Sullivan.

I just want to follow up a little on what Mr. Cotler was talking about. We had an excellent survey done by our committee analysts from the Library of Parliament.

One of the facts that was revealed was that in three provinces and two territories—and there may be other elements—their fine option programs, by their own law, cannot apply to federal surcharges. The question from Mr. Cotler was, should we condition the application of these changes by getting rid of the undue hardship but putting the fine option element in the federal Criminal Code? Should we condition it on it only applying in a province if their fine option program clearly applies...?

Do you have any information on this or have you been interacting at all with the Department of Justice or any of the provinces to know whether or not provinces are well aware of this piece of legislation coming through and whether they are prepared to change their own laws in order to create a hookup with Bill C-37?

[Susan O'Sullivan]

In my mandate, I have no authority to make recommendations to the provinces and territories. However, I would hope that the Department of Justice, which has committees in place to discuss these matters with the provinces and territories, would have those discussions.