Justice Committee on Nov. 1st, 2012

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

That's all right. I was just asking about whether you had heard from victims you work with that they're in favour of it being made mandatory, in that it hasn't been applied 90% of the time and it goes to all these kinds of services I've been talking about.

[Sharon Rosenfeldt]

Yes, by all means.

Right from the start, when this bill started, when it came into force in 1988 it was combined. It was in Bill C-89, and there were two bills: one was the victim fine surcharge and one was victim impact statements. They were considered at that time and throughout the years to be very.... Judges really didn't like to be told that they should be levying the fine surcharge and/or allowing the victim impact statements. In fact, a lot of the time the judges would just not do it, in relation to victim impact statements, until it was actually legislated in the Criminal Code.

That has been fixed. It has come along quite fine and is now quite well recognized, as I believe this will as well, to make it mandatory that judges do in fact levy the victim fine surcharge. I believe it has to be in legislation, and I believe it has to be totally adhered to right across the board. That's the only way victims are able to access, really, any services.

I know what I was going to say. We really feel the taxpayer should not be burdened with the provision of victim services for crime victims when the offender has actually committed the crimes. We feel more comfortable that the money comes from the levy of the fine surcharge and/or the surcharge on summary indictable offences. As small as it may be, it's definitely fine.

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

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

Let me begin with Ms. Pate. You mention that the cost of incarceration at the federal level was approximately $350,000 per year. There's a variation at the provincial level, between $30,000 and $200,000 per year.

My question is this. Why is there such a difference? Why the variation? More importantly, what are the cost impacts of Bill C-37 in terms of incarceration of those imprisoned for failure to pay?

[Kim Pate]

Part of the reason for the discrepancy depends on whether provinces, territories...and in the federal government context, the Parliamentary Budget Officer looked at capital expenditures as well as operating costs, which most correctional services don't when they categorize.

The lowest that I'm aware of has been Alberta, and at a time when there were human rights complaints about inadequate nutrition and that sort of thing in the institutions a few years back. That is the lowest of which I am aware.

So partly it's dependent upon what's available to a prisoner and what's not available, upon the volume of prisoners.... If you have a large number of prisoners housed in a very large complex with very minimal staff and mostly static security, it can cost less and certainly can lead to more inhumane conditions and all the rest of it—hence some of the things we've seen in the United States. The provinces are probably in a better position to identify how they cost out what the costs are.

The Parliamentary Budget Officer's estimates were based on Corrections Canada's own estimates—and on including their operating costs and capital expenditures, as I understand it—when his investigators came to that figure in their review of Bill C-26, actually, as it then was.

In terms of the impact, I absolutely support Sharon's and Victims of Violence's desire to have victim services. I don't believe this bill will achieve that, in large part because we're talking mostly about people who are impecunious, who don't have resources. The reason, with respect, that 80% to 90% of the surcharges are not being imposed is that we're dealing with that level of poverty. When you see who is in prison, who ends up in the system, it tends not to be people who have money.

You're shaking your head. If you have different information, I'd be happy to hear it. I go into the youth and adult men's prisons, and in the last 20 years into women's prisons, and while there may be some individuals who have some resources—and I certainly would not be adverse to their contributing—the majority of the people I know, particularly the indigenous women or women with mental health issues or single moms, certainly don't have those resources and will be the ones who end up in prison at, I would argue, far greater taxpayer cost than if we had other sentencing options, or more important, victim support services—universal services—that avoid people becoming victimized.

The work we have done with our indigenous sisters around the missing and murdered aboriginal women points exactly to that. When you don't have the resources—which would have been part of the comments that may have been taken out of context at another time—our view, and part of the reason our Elizabeth Fry Societies work with marginalized women as well, is that we're trying to work with individuals before they end up victimized and criminalized. So we have shelters, we have women's centres, rape crisis centres, homeless shelters, homeless beds—all things that are aimed at trying to prevent people from being victimized.

Government tax dollars are going into this, necessarily to set up these initiatives, and we would rather have the resources—

[Irwin Cotler, Liberal, Mount Royal, QC]

For reasons of time, let me lead into the next question, which may flow from your response, because you mentioned a section 15 charter concern.

I wonder whether you could elaborate on it. I suspect I might know what it is, but I'd rather hear it from you, and it flows from what you've been saying at this point.

[Kim Pate]

The fact that we're seeing people right now being provided in some provinces with the opportunity to work off fines.... This has been set up largely to offset the section 15 inequality that would exist if equal access to those programs were not available, something we haven't had, which the Supreme Court of Canada has already said is discriminatory; it struck down the sentence in the Wu case, in which a jail sentence had been imposed when someone was unable to pay a fine.

We would argue both that section 15 concerns arise in terms of the inequality of application and that we would end up seeing disproportionately women, aboriginal people, and people with disabilities—particularly mental health issues—in prison largely because of these sorts of provisions.

I think there is also a section in the Canadian Bill of Rights saying that the Minister of Justice shall, in accordance with the regulations, examine every regulation and determine whether it would be inconsistent with the purposes and provisions and the role of human rights protections in the bill of rights. This is another reason that it likely will be challenged.

And then there will be the cost—I'm sorry to say it, but as we've just experienced yet again—of the Department of Justice being a bottomless pit of money to fight these sorts of provisions. The government should be defending the Charter of Rights and Freedoms for all people, those who might potentially be victimized or who have been victimized, as well as those who end up in the system victimized.

[Irwin Cotler, Liberal, Mount Royal, QC]

Here is a short question, Ms. Rosenfeldt. Do you share Ms. Pate's view regarding the Supreme Court's decision in the R. v Wu case?

[Sharon Rosenfeldt]

I know there is a Supreme Court decision, but I'm not a lawyer, Mr. Cotler; I'm a victim advocate. However, I believe the government would definitely have taken that case into consideration. I would trust that the government has done its homework on that.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and thank you to both witnesses. It's good to see you both again. Thank you for your interest in Bill C-37.

Ms. Pate, in your opening comment, you indicated that the Elizabeth Fry Society works with marginalized, victimized, institutionalized, and criminalized women. We might quibble over the definition of victim. When you were using the word “victim”, you were talking about women who have been treated poorly by the economy or by their family circumstance; you were not talking about victims of crime, necessarily, when you spoke about women who have been victimized. Or did I misunderstand you?

[Kim Pate]

Unfortunately you may have misunderstood, because we certainly are. We have shelters for battered women who are fleeing violence for which their partners may very well have been charged with violence; we work with residential school survivors who have been victims of abuse—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Would you agree with me that there is a tremendous overlap in client groups between your mandate—which is primarily with respect to dealing with offenders and people who have been institutionalized—and victims of crime? A woman could be a victim of crime one day and be charged with a criminal offence another day, if she's a marginalized person, for example.

[Kim Pate]

It's certainly true across the board. We know that the majority of people, by the time they reach adulthood, have done things for which, if these had been detected and pursued, they could have been criminalized.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I take no issue with the fact that you support the concept of victim services, that you support those programs, because certainly women who avail themselves of Elizabeth Fry services on occasion will require those services. You'll agree with that?

[Kim Pate]

We certainly support services for victims. We don't necessarily support their being merely set up as victim services.

When I was working with the John Howard Society many years ago, one thing the police victim services used to do, in the province we both worked in, was to routinely send victims for us to deal with—because I was setting up one of the first victim offender programs in that area—because they felt they couldn't deal with them through victim services, particularly in cases of sexual assault and violence against women.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

So you take issue with the mechanics of how victim services are delivered in some cases, but generally you are supportive of services for victims.

[Kim Pate]

As a fundamental, we're supportive of the universal application of services so that we don't have victims, and when we do have victims, yes, of course we support them.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

And would you agree with this statement, that making compensation assists in the rehabilitation of people who have been convicted of criminal offences?

[Kim Pate]

There are very few people I know who are in the system who would rather have been in the position of committing a criminal offence to start with.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I didn't ask that.

[Kim Pate]

I know you didn't ask that, but it's necessary for me to be able to fully answer your question, and I don't want to shortcut my answer.

The reality is that it would. It's part of the reason that historically I was involved in setting up those sorts of programs, because many of them feel the need to be accountable, and the system—including the victim surcharge approach—doesn't necessarily provide an opportunity for them to be accountable directly to the individuals whom they may have harmed. We know that in situations where it is possible, in which they can compensate.... When I ran programs for young people who could actually go back and work for the victims, it was certainly a far preferable situation to—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

If you support generically the concept of services for victims and if you agree with me that paying compensation after a finding of guilt helps the rehabilitation of the offender, then conceptually you have therefore no problem with a victim fine surcharge.

[Kim Pate]

I think my logic professor would not have liked that slipping through of a few of the suppositions first, before you get to that conclusion.

I'd like to be clear: of course, accountability, where there needs to be accountability, is important, and sometimes that accountability can be financial. There is no doubt that the more serious and violent a crime, the more difficult it is to compensate for it, and certainly when a life is lost—as we both know in our families—you can't compensate for it with money; you can't compensate for it with all kinds of things. But you can ensure, as a principled position, that you provide the fewest opportunities for people to be victimized in the first place and, where there are opportunities, for that to be recompensed.

I don't then go the next leap to say that a victim surcharge means that it's the way to do it. In some cases, there may be excellent victim services provided; in some cases, there may not be. I would suggest to you—and I think both of us agree—that you may want to look at how those victim surcharge moneys are being spent right now by the provinces and territories.