Justice Committee on Nov. 1st, 2012

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Goguen.

(Motion agreed to [See Minutes of Proceedings])

Thank you very much.

Now we move to the clause-by-clause section.

Pursuant to Standing Order 75(1), consideration of clause 1 is postponed.

(Clause 2 agreed to)

(On clause 3)

I believe, Mr. Cotler, you have an amendment that you're proposing?

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, Mr. Chairman.

I will be brief with regard to the explanation of the amendment.

The government has expressed its concern that the undue hardship defence is being improperly applied; that is, judges were waiving the surcharge for no reason—something that was critiqued in numerous reports—and I certainly understand the government's concern in that regard.

I might add that all my amendments intend to, in effect, dovetail with the intention of the government and seek only to bring about a better achievement of the government's own intention. This amendment proposes to address the problem, correctly identified by the government, by allowing the undue hardship requirement but requiring judges to record their reasons in writing. This would improve the enforcement rate for the application of the surcharge, and it would address the concern of the improper granting of the waiver that has taken place.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Bill C-37 amends the Criminal Code by, among other things, repealing subsections 737(5) and 737(6). This amendment proposes to replace subsection 737(6) with a text that is similar to the current Criminal Code text. The effect of the replacement would be to negate the repeal of the subsection. As House of Commons Procedure and Practice, second edition states, on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In my opinion, the reinstatement of a key element being repealed is contrary to the principle of Bill C-37 and is therefore inadmissible.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chairman, I won't challenge your reasoning. That was the reason for my prefacing my remarks. While I share the government's intention, I was seeking only to bring about a different refinement of it.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

I believe you have another amendment.

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes.

This one I think is not as directly opposite in scope. This amendment would agree with the collection of the surcharge and would suspend it only “if the court is satisfied that undue hardship to the offender or dependents of the offender would result from the payment of the victim surcharge” in provinces where a fine option or similar program is unavailable.

Simply put, Mr. Chairman—again, I'll be very brief—Bill C-37 seeks the mandatory application for the victim surcharge, which we are supporting, while removing an undue hardship defence. The amendment maintains the government's intent to impose the surcharge, but suspends its collection when undue hardship would result. We're not seeking to replace the undue hardship defence here. As such, it is supportive of the government's objective of recognizing the need for a surcharge and the related goal of denunciation, while at the same time allowing a court to consider the resulting financial hardship and ordering the immediate payment of the fine.

In other words, while much has been made of fine option programs, Mr. Chairman—and with this, I will conclude—we know that not every province has one. For example, we discussed Newfoundland and Labrador, B.C., Ontario, and the equivalent programs available may not be adequate in certain circumstances. The purpose of this amendment, simply put, allows offenders to make an application that they're in such a situation, and therefore in that situation the surcharge would be suspended.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Again, Bill C-37 amends the Criminal Code by, among other things, repealing subsections 737(5) and 737(6). This amendment proposes to replace subsections 737(5) and 737(6) with a text similar to the current Criminal Code text. The effect of the replacement would be to negate the repeal of the subsection. As House of Commons Procedure and Practice, second edition states, on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In my opinion, the reinstatement of a key element being repealed is contrary to the principle of Bill C-37 and is therefore inadmissible.

[Irwin Cotler, Liberal, Mount Royal, QC]

Again, I will not challenge your reasoning. I'm only saying that this was an attempt to simply suspend collection under very narrow and specific circumstances where there is clear proof that immediate payment would result in undue hardship and no fine option program is available. That's all.

Thank you, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

I believe you have another amendment. Is it Liberal-3?

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes.

This amendment, Mr. Chairman, would suspend the collection of the surcharge if the court is satisfied that requiring the offender to immediately pay the surcharge might have a negative effect on his or her rehabilitation, again, in provinces where a fine option or a similar program is unavailable. We know the difficulties in that regard.

Mr. Chairman, I'll conclude by saying, again being very brief, that we all share the objective and know the importance of rehabilitation. As courts have found, the imposition of a financial obligation may in certain circumstances impede such rehabilitation. As such, this amendment, once again, seeks to impose the fine. It does not eliminate the requirement to pay the fine; it only suspends its collection in cases where it is demonstrated that the immediate imposition of the surcharge will have a negative impact on an offender's rehabilitation, which we all seek, Mr. Chairman.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Bill C-37 amends the Criminal Code by, among other changes, repealing subsections 737(5) and 737(6). This amendment proposes to replace subsections 737(5) and 737(6) with text similar to the current Criminal Code text. The effect of the replacement would be to negate the repeal of the subsection.

As House of Commons Procedure and Practice, second edition states, on page 766:

An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.

In my opinion, the reinstatement of a key element being repealed is contrary to the principle of Bill C-37 and is therefore inadmissible.

[Irwin Cotler, Liberal, Mount Royal, QC]

Again, Mr. Chairman, I won't challenge the opinion as you've expressed it. As I say, I think we are along the lines of the intention and purpose of the bill and do not oppose it. At the end of the day, even if I did object to the reasoning and question it, I know what the outcome of a vote would be, so I'll leave it at that.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

I should have indicated that we have two officials with us: Ms. Morency and Ms. Arnott. I should have done that before. My apologies.

Do you have another amendment, Mr. Cotler?

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, I have one last one, Mr. Chairman.

It simply adds the language “that for greater certainty, an offender who fails to pay the victim surcharge because he or she is unable to do so is not subject to imprisonment as a result of that failure.”

Again I'll be brief in my explanation, Mr. Chairman.

Basically, the amendment seeks to codify the principle in R. v. and Wu, to which I've referred before, as have other colleagues, in which the Supreme Court affirmed that it is irrational to imprison an offender who does not have the capacity to pay a fine in order to compel the payment. This would add clarity to the statute while addressing the concerns that have been expressed that this bill would have the effect of putting people in jail longer simply because they aren't able to pay or because they are in a province that does not have a fine option or a similar program to offset their debt obligation.

Basically, we are seeking to codify the Supreme Court reasoning by way of an amendment to preserve the government's objectives, but not allow for unreasonable incarceration or prolonged incarceration where it wouldn't otherwise take place.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Ms. Findlay.

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

Are we discussing the amendment now?

[The Chair, Conservative, Dave MacKenzie]

Yes.

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

The proposed amendment would specify that an offender who is unable to pay the victim surcharge is not subject to imprisonment for that failure to pay. We understand that is the idea; however, in our view, the proposed amendment goes beyond current paragraph 734.7(1)(b) of the Criminal Code, which reflects the Supreme Court of Canada's 2003 decision in Regina v. Wu.

Under this paragraph, a court cannot issue a warrant of committal in default of payment of a victim surcharge unless the offender has refused to pay the surcharge without a reasonable excuse. This would prevent, for example, an offender who was unable to pay the surcharge due to poverty from being sent to prison. The wording of this proposed amendment could mean that an offender who doesn't pay for any reason will not be subject to the ultimate consequence of imprisonment. The Criminal Code currently prohibits the imprisonment of offenders who default on the victim surcharge due to an inability to pay.

Bill C-37 , as introduced, seeks to ensure that offenders who have the ability to pay are absolutely required to do so. Those who are unable to pay the victim surcharge will be able to discharge the amount owing by participating in a fine option program. These programs exist in seven jurisdictions. Alternative measures are available in the provinces that do not offer such programs, such as my own jurisdiction of British Columbia, where there are many mechanisms used to collect fines of this type.

Mr. Chair, I would like to ask the officials to comment on this as well.

[The Chair, Conservative, Dave MacKenzie]

Do the officials have any comments?

[Carole Morency, Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

As just noted, the provision referred to paragraph 734.7(1)(b), where the court cannot issue a warrant of committal to commit an offender who cannot pay...or an offender who refuses to pay without a reasonable excuse cannot be committed to jail. I know the Wu decision has received a lot of consideration around this table, and rightfully so, because it directly impacts on the issues addressed by this bill.

In Wu, the facts of that case were whether a conditional sentence was appropriate. The court held it was not, but then the court went on to consider what is appropriate when dealing with an offender who has been fined and has a true inability to pay. The court went through the listing of the considerations. If there are administrative actions that can be taken, then that would be the next recourse. It could be that a civil judgment enforcement isn't going to be effective in those circumstances. If the real reason that the individual offender is unable to pay, or refuses to pay, is due to their impecunious state, then Wu does very much stand for that proposition; it would be inappropriate to incarcerate that person.

Wu stands for that proposition, and the Criminal Code reflects a similar interpretation: that the court wouldn't have the authority to do it in those circumstances.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chair, this amendment is for greater certainty.

It would leave intact a court's judicial discretion to sentence an offender to whatever punishment the particular offence would deserve, pursuant to the law at issue and the relevant sentencing guidelines. An offender would be subject to incarceration, when warranted, by his specific offence, but as I think this committee is aware, not all offences in the Criminal Code call for this extreme punishment.

To conclude, the amendment would ensure—and that's what the reasoning is—that where incarceration is not otherwise an option, and where an offender is simply not able to pay the surcharge because of financial hardship, he or she will not thereby find themselves facing such incarceration. I would note that even one day in jail could have adverse consequences, particularly when it's unnecessary, and could even lead to a loss of employment in a certain situation, exacerbating the difficulties in the situation.

This is not, in my view, the objective being sought by Bill C-37. If the committee is going to pass this bill with the undue hardship defence removed, which is I suspect what we will be doing, we should at least ensure that the Supreme Court's decision in this regard can be appropriately respected and codified. That's all I'm saying.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Ms. Morency.

[Carole Morency]

I should have added that Wu does speak to the fact that the court also has the power to structure how the payments could be made and over what period of time. Wu does speak to the fact that if the offender does not have the ability to pay at the time that the offender is before the court, it doesn't mean that the offender may not have a future ability to pay, and that too is a factor that can be taken into consideration.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Mr. Scott.