Justice Committee on Oct. 30th, 2012

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order. This is meeting number 48 of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of Tuesday, October 16, we are studying Bill C-37, An Act to amend the Criminal Code, and we have witnesses to hear today.

Before we begin, we have a little problem with time today, in that there will be bells at 5:15 p.m., so the meeting will have to end early, and we need 15 minutes at the end of today's meeting to deal with committee business.

We have important witnesses here, but I think we're going to have to shorten up a little bit. Perhaps the first session will be 45 minutes and the second session equal to that, or both of them a little shorter than that.

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

Mr. Chair, my colleague and I were talking about that. Because we need enough time to do all those things, we thought, given the way the agenda was set up for today, that perhaps we could have a shorter first half, because there's only one witness, and then the second part could be shorter, too, to accommodate the change.

[The Chair, Conservative, Dave MacKenzie]

Yes.

[Françoise Boivin, NDP, Gatineau, QC]

That was going to be our suggestion; that's why we were almost late.

[The Chair, Conservative, Dave MacKenzie]

You know that I like to start meetings on time, so I will just remark that you were both a minute late.

We have Susan O'Sullivan, the federal ombudsman for victims of crime, with us for this first session.

I think you've been here a couple of times and know the system. If you have an opening address, please go ahead with it.

[Susan O'Sullivan, Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime]

Thank you.

Good afternoon, Mr. Chair and honourable members of the committee.

Thank you for inviting me here today to discuss Bill C-37, which seeks to amend the federal victim surcharge provisions in the Criminal Code.

I am very encouraged by the introduction of this legislation, as it responds directly to recommendations that our office has made to better meet the needs of victims of crime in Canada.

First, I would like to take the opportunity to discuss my role as the Federal Ombudsman for Victims of Crime. As you may know, the Office of the Federal Ombudsman for Victims of Crime was created to provide a voice for victims at the federal level. We do this through our mandate by receiving and reviewing complaints from victims; by promoting and facilitating access to federal programs and services for victims of crime; by providing information and referrals; by promoting the basic principles of justice for victims of crime and raising awareness among criminal justice personnel and policy-makers about the needs and concerns of victims; and by identifying systemic and emerging issues that negatively impact upon victims of crime.

The office helps victims in two ways—individually and collectively. We help victims individually by speaking with victims every day, answering their questions, and addressing their complaints. We help victims collectively by reviewing important issues and making recommendations to the federal government on how to improve its laws, policies, or programs to better support victims of crime.

I would like to begin by stating that our office is very encouraged by the proposed amendments to the victim surcharge provisions in the Criminal Code that are being examined today. Specifically, there are three changes proposed in Bill C-37 that would act as positive steps forward in addressing the needs of victims of crime.

The first amendment would ensure that the surcharge is imposed in all cases, without exception, by removing a judge's option to waive the surcharge.

Second, the offenders who are unable to pay the surcharge would be able to participate in the provincial-territorial fine option programs to discharge the amount owing.

Third, the amount of the surcharge that an offender must pay would double under this legislation. In terms of implementation, this would translate into a surcharge of 30% when a fine is imposed, or when no fine is imposed, $100 in the case of an offence punishable by summary conviction, and $200 in the case of an offence punishable by indictment.

In effect, these changes would ensure consistent application of the surcharge provisions across Canada and hold offenders more accountable to the victims whose lives they have affected.

Because of the benefits of these proposed amendments from the perspective of victims of crime, I would like to express our full support for the passage of Bill C-37. The changes to the victim surcharge provisions have been a priority for our office due to the fact that we hear from victims on a daily basis about their difficulty in accessing the services they need after a crime. Victims also express their frustration when offenders are not held accountable for paying their court-ordered debts, including restitution and the federal victim surcharge.

Victims also face many difficulties as a result of the psychological and socio-economic impacts of victimization. A recent study from the Department of Justice estimates that almost 83% of the costs of crime are borne by victims. These costs include lost productivity and wages, costs of medical and psychological care, and time away from work to attend criminal proceedings. We also hear from victims about their not being able to afford counselling sessions, or about the lack of criminal injuries compensation available in their province or territory.

A contributing factor to these obstacles faced by victims could be the shortfall in funds that the surcharge was expected to generate for victim services and programs. The surcharge is intended to be applied automatically; however, it is routinely waived during sentencing, often without documentation of undue hardship to the offender.

Data from a review of the operations of the federal victim surcharge in New Brunswick from 2006 revealed that the surcharge was being waived in 66.5% of cases reviewed. Further, in 99% of the cases in which the surcharge was waived, there was no documentation on file of the reasons for the waiver.

As a result of the routine waiving of the surcharge, the revenues for provincial and territorial victim services fall short of what was anticipated. This is a signal that the surcharge is not meeting its intended objectives and needs to be improved.

There are concerns that the mandatory payment of the surcharge will result in undue hardship for offenders. This focus does not allow for the consideration of undue hardship faced by victims in the aftermath of a crime. Bill C-37 allows for a more balanced approach that ensures the victim surcharge is consistently applied in all cases while also providing for offender participation in fine option programs or for alternative mechanisms to secure payment.

The changes proposed in Bill C-37 to double the surcharge and ensure that it is automatically applied in all cases will contribute to more effective funding for victim services. These changes will also give offenders the opportunity to provide reparation by paying into services that help victims cope and move forward following a crime.

In conclusion, the changes proposed to the federal victim surcharge provisions are a significant step forward. They will provide a more meaningful mechanism through which offenders can demonstrate reparation for harm done to victims or the larger community, while also demonstrating responsibility and accountability for their actions.

The efficient functioning of the victim surcharge through the passage and implementation of Bill C-37 would send a strong signal to victims that the criminal justice system recognizes the long-lasting impacts of victimization and the corresponding necessity to hold offenders accountable and to ensure that provincial and territorial victim services are adequately funded. Accordingly, I encourage this committee and Parliament to ensure the passage of this bill, as it will serve to better address the needs of victims of crime in Canada.

As Federal Ombudsman for Victims of Crime, I am grateful to the committee for providing me with the opportunity to highlight the needs of victims of crime in relation to this important piece of legislation.

Thank you. I would be happy to answer any questions you may have.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

We begin with Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair. Thank you, Ms. O’Sullivan, for your testimony and for taking the time to come and meet with us.

I feel that everyone here in this committee agrees that this bill is important because there are currently a lot of loopholes in section 7.37 and the other sections of the Criminal Code. We have heard from witnesses who said that barely 20% of judges order the payment of the surcharge, which makes me wonder about the remaining 80%. Those judges do not even use their discretionary power to determine whether the accused have any evidence to prove that they are unable to pay. So that is definitely a problem.

However, I still have some concerns about Bill C-37 because I am looking at it from the perspective of courts, which will have to subsequently implement it. As we know, in the R. v. Wu decision, the Supreme Court clearly said that a person who was genuinely not able to pay could not be sent to jail. My concern is that there is no provision to that effect. This piece of legislation will end up removing the judicial discretion. The discretion was probably misused in the past because the surcharge was not being imposed without any evidence that the accused was unable to pay.

However, my concern is that, by removing the discretionary aspect of this power, we will end up with court challenges. As a matter of fact, not all provinces or territories have programs that allow the accused to pay and to register for a work program or community work. Not all provinces will withhold a driver’s licence until the fine is paid.

Have you looked at this matter from that perspective or simply from the perspective that victims are left behind by the justice system, as you so rightly said? Any additional time would be a good thing and any time spent to make the accused accountable would also be a good thing. However, if we ultimately do not get the intended result, perhaps we are missing the boat.

[Susan O'Sullivan]

First of all, we certainly acknowledge that there may be issues for some offenders in terms of ability to pay, but what also needs to be part of that conversation is the burden that victims carry in the wake of a crime. Their costs are as a direct result of the crime. This can include some very practical issues for victims of crime, such as those I mentioned in my opening comments: medical attention, lost wages, and those types of things. I hear from victims across this country about their struggle and the impacts of crime on victims and about their struggle to access services.

Victims need to have supports in place, and those supports need to be funded. The moneys raised in the surcharge will contribute to this. I certainly want to acknowledge that I did look at those statements, and I've looked at testimony from other witnesses. I've looked at the fact—it's my understanding—that there are seven provinces and territories that have the fine option program, but the other three provinces have other mechanisms in place.

The federal victim surcharge was implemented in 1988 and was amended in 2000 to make it automatic. I think you're referring to some of the same studies that I've seen. The New Brunswick study from 2006 showed that in 66.5% of the cases the surcharge was waived, and in 99% of them we have no record of why it was waived.

[Françoise Boivin, NDP, Gatineau, QC]

No records....

[Susan O'Sullivan]

So what we do know is that, as it stands right now, it would appear that the surcharge is being routinely waived. I think we owe it to victims to take this new direction and make it consistent across this country. I think it's time.

What is in place right now is the fine option program in seven of those provinces and territories. It recognizes that if there's an inability to pay, there's an opportunity to do community service, for example, to contribute to your community. That too, as you've touched on, is linked to the sentencing principles of reparation of harm to the victim and the community at large, as well as the accountability and responsibility of the offender.

I would hope that the Department of Justice is having these conversations with those provinces about looking at what they can put in place to address this.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

Do I still have time, Mr. Chair?

[The Chair, Conservative, Dave MacKenzie]

Yes, you do.

[Françoise Boivin, NDP, Gatineau, QC]

That's excellent.

What about the people who have problems?

What about people with mental health problems?

Witnesses will come later and tell us that there are people with mental health issues or physical disabilities in the prison system. Do these measures have to be applied across the board?

I understand that you will say, as others have often said, that there are provincial and territorial programs.

A study done by our wonderful Library of Parliament has shown that provincial and territorial programs are not the same everywhere. They cannot be used in the same way.

Let me turn again to extreme cases. As a representative of victims across Canada, would you see a problem with establishing some very strict parameters for extreme cases? That would ensure that courts will not come and tell us one day that we had not made provisions for extreme cases and that they will simply remove the section in question, because it would be too discriminatory in such and such a situation.

So we have people living in extreme poverty, who could not be compensated by one of the programs, or those who would not even be able to register for a program like that, because they have a mental health issue or a physical disability. I wonder how open you are to that.

[The Chair, Conservative, Dave MacKenzie]

A very short answer, please. She only had a minute, but we went quite a way past that.

[Voices]

Oh, oh!

[Susan O'Sullivan]

Yes, my answer would have been longer.

I think I would want to go back to my original comments to acknowledge that there will be offenders with issues. What I also want to acknowledge is the hardship for victims of crime who also suffer from issues such as PTSD, who have anxiety, and who have need of these services, which is exactly what this is intended to provide.

I also know that the criminal justice system has mechanisms in place should people have severe issues, such as whether they are not criminally responsible. We have mental health courts and other things in place around that. I think what's important here is providing that consistency, because one of the issues you're also touching on is the extreme variability in the services available to victims across this country, depending on where they live.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Ms. Findlay.

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

Thank you, Mr. Chair.

Thank you for being with us today, Ms. O'Sullivan.

As you know, our government created the Office of the Federal Ombudsman for Victims of Crime in 2007. I know that you've held that position for about two years now. Your input here is invaluable as we go through this legislation.

I'm aware, of course—and I believe you mentioned this in your opening remarks—that in your report on February 2 of this year, Shifting the Conversation, which is a title I like, you recommended a doubling of the victim surcharge and that it become mandatory. I'd think you'd agree with me that this legislation is meeting that strong suggestion you had. It was heard.

[Susan O'Sullivan]

Thank you very much for that.

It was absolutely a recommendation in our Shifting the Conversation report. It was about rebalancing and making sure that the legs of the stool are equal.

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

Thank you.

In that regard, I'm wondering what your comments would be about the necessity of it being mandatory. Also, you mentioned in your remarks that not only has it not been enforced, but we don't even know the reasons why it hasn't been enforced. Would you agree with me that in making it mandatory, this also means that we'll have a better insight into how that would work in terms of what the circumstances are of both the accused and the victim?

[Susan O'Sullivan]

Yes, absolutely. On our recommendations, I'll again go back to my earlier comments. The federal victim surcharge was put in place in 1988. It was amended in 2000. What we have seen is that it has been routinely waived, so it's not fulfilling its intention. It was intended to raise moneys for provinces and territories to provide services to victims of crime.

I can tell you that we hear from victims of crime across this country. I'll use one example. I talked to a mum who had lost her daughter. Her daughter had been murdered. She said that she was one of the lucky ones because she got 30 counselling sessions paid for, but that it had been 18 months and they hadn't even gotten to pre-trial. She was wondering how many sessions she should save. Well, that's not meeting the needs of a victim of crime. As everyone at this table knows, when we're talking about victimization it can be lifelong, and the needs of a victim of crime don't end with the end of the criminal justice system, necessarily—they will go on.

As everyone here is aware, the majority of direct services are provided by the provinces and territories, so when we talk about giving the provinces and territories access to more financial support to be able to deliver those services, to be able to meet the needs of victims of crime, both at the time of crime and in the aftermath following the crime—and in many cases, over many years—this is something that we must do. We must start to take these positive steps forward. We must start to recognize that victims are not bystanders in the criminal justice system and that they have these needs that have to be met.

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

Given your unique circumstances, and because of your position and your ability to dialogue with victims, do you see this as something that victims of crime in Canada will widely support and appreciate?

[Susan O'Sullivan]

Yes. As a matter of fact, it's what we hear from victims of crime. I certainly want to say that victims of crime will have many different needs in terms of their victimization. You will hear from some victims of crime who will be very supportive of restorative justice, for example, and who see that as something that's appropriate for them. You will see others who....

But no matter what, they still need supports in place, and that can be practical supports. I'll just use one example: criminal injuries compensation. It's something that's provided, but not in all provinces and territories, as people are well aware. That allows access: for example, criminal injuries compensation can actually fund things like counselling. To help them cope with what has happened to them and to have the needed supports in place, the access to those moneys needs to be paramount.

We need to recognize who has suffered the harm and the loss, and again, acknowledging... It's not an either-or in some cases. We know that. No victim wants what happened to them to happen to anyone else, but what they can't understand—and what I hear constantly—is why they don't have access to services in a timely way, and in some cases, just access to the appropriate services. Because it's one thing to get counselling, but as you can imagine, some need specific trauma counselling. Access to the kind of counselling they need can be expensive, but we need to be assured in society that the needs of victims of crime are also supported and addressed in the criminal justice system.

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

Thank you.

I think it's quite obvious that there is of course a direct victim of a crime, but whole families can also be victimized. I thought that you could perhaps comment on that, on where there's a need for support or, in other words, the definition of “victim”.