Justice Committee on Nov. 1st, 2012

[The Chair, Conservative, Dave MacKenzie]

Seeing that the time is 3:30, we'll begin the meeting. This is meeting number 49 of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of Tuesday, October 16, 2012, we are examining Bill C-37, An Act to amend the Criminal Code.

We have two witnesses before us today. We have Kim Pate, the executive director of the Canadian Association of Elizabeth Fry Societies, and Sharon Rosenfeldt, from Victims of Violence. I know both of these witnesses have appeared before committees before, and I think you know how we operate.

If you have an opening address, Ms. Pate, and if you would like to go first, you're first on our list.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

It would be my pleasure. Thank you.

Thank you very much for inviting the Canadian Association of Elizabeth Fry Societies to present to you. I'm happy to be here with a long-time colleague and friend, Sharon. We've known each other since Alberta days.

I also want to say that I come, as you know, representing an organization that works with marginalized, victimized, criminalized, and institutionalized women and girls.

I will cut right to the chase on this. We have two concerns with Bill C-37.

One is that we know women form the fastest-growing prison population. The majority of them are in prison for poverty-related offences: they have tried to negotiate poverty. Our significant concern is that Bill C-37 will only exacerbate that issue, particularly when you're talking about women who are single moms. The majority of the women in prison are single moms, and most were the sole supports for their children before they went to prison, women trying to support themselves and their children living in poverty.

The reality of having a mandatory surcharge also flies in the face of the Wu decision of the Supreme Court of Canada in 2003, which clearly said that it is certainly appropriate, in a situation in which a default of payment of a fine—and by extension a victim surcharge—occurs because someone chooses not to pay, to be looking then at the potential for a far more serious penalty, but that a genuine inability to pay a fine should not be a proper basis for imprisonment. By extension, the same argument would apply similarly to a victim surcharge.

So we would encourage you to reconsider this and to allow there to be judicial discretion to examine the ability to pay, rather than see us end up defaulting to a situation we have been in, and to which arguably we're heading with many women in the prison system, such that we end up with prison essentially being debtors' prison, where people are put because they cannot afford to pay the penalty, and not because of an unwillingness to pay the penalty or to pay a victim surcharge.

When we know that the majority of the women—91% of the indigenous women in prison, 82% of women overall—have histories of physical and/or sexual abuse, talking about a victim surcharge to assist victims, when these women end up in custody largely because of the lack of resources in such other parts of the community as social services and health care, particularly mental health care, seems highly.... I would suggest there will be some section 15 and some human rights challenges.

But also, it seems morally problematic to be talking about more individuals being in prison, largely because they can't pay, at a huge cost to the Canadian government. The Parliamentary Budget Officer has estimated that it costs $343,000 per year to keep one woman in federal custody, and provinces range, depending on the range of services and what is costed in, from a minimum of $30,000 of cost up to in excess of $200,000. When we're talking about those kinds of costs, to jail someone for non-payment of either a fine or a victim surcharge seems counterproductive at best.

We would respectfully urge you to look at either not passing the legislation or, in the alternative, amending it to ensure that the provision of failure to pay....

We would also urge that you seek an accounting from the provinces and territories as to how they're spending their victim surcharge moneys now. My understanding is, and the background legislative summary for this prepared by the Library of Parliament indicates, that it seems unclear which provinces and territories actually are requesting the money. It's certain that some are requesting increases in victim surcharges, but what is very unclear is how that money is currently being spent. It strikes me that it behooves all members to know where that money is going and how it's being spent before we start imposing more fines that will likely cost taxpayers even more money and arguably will not assist victims, if in fact these resources are not going to the sorts of supports that will prevent people from being victimized in the first place and not necessarily to providing direct services in the second place.

Thank you very much.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Ms. Rosenfeldt, if you have an opening address, go ahead.

[Sharon Rosenfeldt, President, Victims of Violence]

Thank you very much. Thank you for inviting our organization, Victims of Violence, to appear today on Bill C-37, An Act to amend the Criminal Code, on victim fine surcharges.

I will briefly tell you about our organization—only half of it.

Our mission is to promote a more balanced justice system through legislative action and public awareness. Victims of Violence was founded in 1984 to provide support and assistance to victims of violent crime, to advance the rights of crime victims, and to enhance the safety of all law-abiding Canadians by addressing problems in Canada's criminal justice system.

We are appearing here today in support of Bill C-37. We agree that doubling of the victim fine surcharge and making it mandatory is crucial to the provision of victim services across Canada. Twenty-five years ago the concept of rights for crime victims was not widely recognized by either the justice system or the general public. Within a growing movement consisting of a group of determined individuals made up of victims of crime and associated professionals, the movement began advancing the vision of a system that would acknowledge and protect not only the rights of the accused but also those of the victim.

Great progress has been made since then. But progress does not come without challenges. While it is clear that there is an increased need for victim services across Canada, allocations from the victim fine surcharge have steadily decreased over the past number of years. Today the government recognizes this dilemma, and steps are being taken with the proposed amendments in Bill C-37 to restore allocation levels.

It is our opinion that the need for victim services has increased because the past 25 years have seen such a growth in understanding of crime victims' rights and services and of the network of crime victim advocates, service providers, and associated professionals who work to restore a sense of normalcy to victims' lives that crime victims are today more aware of services and seek to use them. Unfortunately, violent crime is a fact of life, and there continues to be a need for increased public awareness of the dynamics of crime. Attention must be paid to the fact that crime is not just a violation of a criminal code, but it also causes harm to victims, including economic loss, emotional suffering, and physical and mental injury.

I wish to bring the committee's attention to an issue that does not seem to get enough attention when we are discussing issues affecting crime victims. The cost of violent and serious crime consists not only of taxpayers' dollars but of the loss of human life, loss of family, loss of law and order, and loss of faith in the criminal justice system.

In 2008 the Department of Justice released a report that estimated the costs of crime. The report stated that the tangible costs of crime—including police, court, corrections, health care, victim costs, etc.—were approximately $31.4 billion, while the intangible costs of pain and suffering, loss of life, etc., were more than double that, at a whopping $68.2 billion.

We would therefore like to ask the committee to take into consideration the costs that crime has had on victims, primarily in three areas: one, in drawing comparisons about whether convicted offenders can afford to pay the fine surcharge or not; two, in deciding whether or not the new amendments to Bill C-37 should be made mandatory; and three, in determining why some question that the new amendments will take away a judge's discretion.

Further, we would submit to the committee that you should consider recognizing that the victim fine surcharge is a major source of funding for victim services throughout Canada. The surcharge is unique in that it is composed primarily of fines from convicted offenders, making it a self-sufficient source of support that does not rely on Canadian tax dollars to carry out its work. We feel that by way of the victim fine surcharge, those who cause victims suffering contribute to alleviating their pain and helping them rebuild their lives.

That said, we wish to touch on a few challenges that we see. The victim fine surcharge legislation has now been in place for 24 years, and we find that there is very much disparity across the provinces as to how the provinces use the victim fine surcharge funds. It is our humble opinion that there is seemingly no transparency. To date, and to our knowledge, there has never been adequate research study done on the use of the victim fine surcharge funds in all provinces, with the exception of four—New Brunswick, B.C., Ontario, and Saskatchewan.

We would therefore suggest a review of provincial practices by the federal government, possibly done by the Office of the Federal Ombudsman. A result of this study could potentially lead to a legislative requirement for something akin to the Victims' Justice Fund, which is generated by the victim fine surcharge in Ontario and which compels the money to be used only for victim assistance use, with maybe a requirement of an annual report on the use of those funds.

We understand that this suggestion would be considered somewhat controversial, if not impossible, since the victim fund surcharge is federal legislation and it is left to the discretion of the provinces to deliver victim services in the manner that they deem appropriate.

In closing, I wish to thank the government for the proposed amendments to the victim fine surcharge as stated in Bill C-37, which we support. I also thank the committee on behalf of Victims of Violence for the opportunity to not only voice our support, but to listen to our concerns as well.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you very much, both ladies.

We'll begin the round of questions with Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I want to thank our two witnesses for being here during our final hour of analysis and study of Bill C-37.

There are a few facts I would like to check. You may not be aware of certain comments that were made about you at our last hearing, this past Tuesday. I want to come back to them, because I really don't like it when the discussion focuses on people who aren't there.

Ms. Pate, I would like to know if you have ever been the chair or director of the John Howard Society.

[Kim Pate]

No. I worked for the John Howard Society once.

[Françoise Boivin, NDP, Gatineau, QC]

I am just trying to get a few things straight, further to some comments made by my colleague Robert Goguen. He mentioned that you had testified on other bills, including Bill C-59 and

Bill C-475. You were quoted as saying:

I want to be clear that, as we stated before the house committee, we do not support this bill. We do [not] support issues to protect the rights of victims and to protect victims generally. We feel that...many more initiatives could be undertaken rather than, that after the fact, undertaking a bill of this sort.

I went into the answers—well, not me but our brilliant researcher here. I'd like you to remove the impression—maybe it was Mr. Goguen who was right and not Hansard, but according to Hansard, what you did say was:

I want to be clear that, as we stated before the house committee, we do not support this bill. We do support issues to protect the rights of victims and to protect victims generally. We feel that if that was the objective, many more initiatives could be undertaken rather than, after the fact, undertaking a bill of this sort.

Do you not support victims, Madam Pate?

[Kim Pate]

Many of our organizations do work with victims, so yes, and many of the women we work with.... I was just at the inquest into the death of Ashley Smith yesterday, so yes, we do.

[Françoise Boivin, NDP, Gatineau, QC]

I just wanted to clear that up because it must have been a mistake, a “not”. When you remove one little word of three letters, the impact can be so much more devastating.

Does the fact that section 736 can be used—in other words, that provincial and territorial programs can be accessed—somewhat diminish the potentially negative impact on individuals who are unable to pay because of extreme poverty, mental health issues or other reasons? Does that aspect not give you some reassurance, Ms. Pate?

[Kim Pate]

Sorry, I missed part of the question.

[Françoise Boivin, NDP, Gatineau, QC]

The way the section in the Criminal Code was construed before, there was the discretion of the judge to charge or not charge the—I can never say that word in English.

[Kim Pate]

Surcharge.

[Françoise Boivin, NDP, Gatineau, QC]

Excellent. Thank you.

There was no access to the provincial and territorial programs to work instead or to make some type of compensation so that jail was not necessarily compulsory.

The bill now, as it is written by the government, states that it is at the discretion of the judge because it was proven that 80% of the time it was never applied, but with no explanation, reasoning, or justification by the courts. Now the access to the program has been added to the suramende. Would that remove a deterrent, in your view, toward that bill?

[Kim Pate]

Do you mean the fine option program, the being able to work it off? I'm not certain what you mean.

[Françoise Boivin, NDP, Gatineau, QC]

Yes, exactly.

[Kim Pate]

Okay. Not every province has a fine option program. Even where fines are imposed, if someone can't pay, they may still end up in custody. They're not supposed to, and certainly the Supreme Court of Canada has addressed that issue, but they sometimes still do. That's true.

Where there would be an opportunity to work off the surcharge, it would be beneficial, because then the issue does not come up of basically jailing someone because they're poor. They could pay the fine surcharge and pay the fine through the fine option program. But not every province and territory has that option, so that's the concern we have.

[Françoise Boivin, NDP, Gatineau, QC]

Ms. Rosenfeldt, are you satisfied with the fact that the programs can be used? It won't give more money to the victims, because we know the cost to victims—we heard it loud and clear in this committee—$80-some billion, and probably not even close. There's no money that really compensates a victim of a crime or her or his family for what they've gone through.

And it's not only that. It's fine to double the fines and sub-fines, but at the same time, if the money is not going to victims, what good does the bill do?

[Sharon Rosenfeldt]

I think that's the crux of the whole issue. Under the four studies that were done, this has been brought to the attention of governments for a while now. I believe the intent of this bill is to reallocate the funds. The only way it seems possible is to make it mandatory and double the fine surcharge.

In response to your first question, it would be totally fine with our organization if the offender could not pay but was able to possibly do community service or whatever. You're quite right. There isn't any amount of money that can repair the pain and damage that we've gone through. However, what the money is used for is not specifically to hand victims money; it is for victim services, so that victims do have a place to go.

Does that answer your question?

[Françoise Boivin, NDP, Gatineau, QC]

Yes, it does. Thank you very much.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Madame Findlay.

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

Ms. Rosenfeldt and Ms. Pate, thank you both for being here.

Ms. Rosenfeldt, during your appearance before this committee on Bill C-10, the Safe Streets and Communities Act, you said the following, and I will quote:

Although I can't speak on behalf of all victims of crime, I can speak on behalf of myself, our organization, and the victims we represent. I can tell you of the strong support that exists across Canada for the government's crime agenda....

As you know, the bill before us, Bill C-37, will increase the victim surcharge to 30% of any imposed fine, $100 for summary conviction, and $200 for an indictable offence. That money, collected through the increased and mandatory victim surcharges, will go to the provinces in order to fund victim services on the ground.

Can I take it from your remarks that you would agree with me that these are relatively small but important steps towards bringing some accountability by criminals towards their victims, and that's part of why you support Bill C-37?

[Sharon Rosenfeldt]

By all means. That is a very important component to victims, as has been stressed.

There isn't anything monetary that would ever compensate us. However, the ability to be able to seek out services when they're needed is crucial for victims. We truly believe in accountability as part of this bill, whether or not the offenders recognize it or say, “Damn, another surcharge”. We still feel good about that in principle.

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

I'm interested as well in what you, as a victims advocate, have heard on the ground regarding the current application of the victim surcharge. We're told that 80% to 90% of the time it's simply not enforced. We're also told—and given some of the other testimony here—that the surcharges are used in the provinces in many ways for information on the criminal justice system and court processes for counselling, court preparation, court support for vulnerable persons, and assisting with victim impact statements. All of these kinds of things are part of their victims services.

Are you hearing from the victims you work with that they're in favour of a mandatory application?

[Sharon Rosenfeldt]

Yes, by all means.

Another thing I'd like to point out.... I'm sorry, that thought went.