Evidence of meeting #49 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was services.
A recording is available from Parliament.
4:50 p.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
Sorry, Mr. Chair, just a quick clarification. Ms. Findlay mentioned paragraph 734.7(1)(b).
I'm not sure if the language reflects or codifies Wu.
4:50 p.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
I'm just wondering. I should know this. I should have read it more closely myself. Is Wu in fact an interpretation of paragraph 734.7(1)(b) or is it an extraneous interpretation to that paragraph? Is it giving meat to that provision, or did this provision follow from Wu?
4:50 p.m.
Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
No, the provision was in the Criminal Code before Wu. Wu was a 2003 decision. The provision was there before. I believe it was part of the overhaul of the sentencing provisions.
4:50 p.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
Right, so I guess my question is again for clarification. If I'd had more time, I could answer it myself.
4:50 p.m.
Voices
Oh, oh!
4:50 p.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
I need more time to read the judgment. This is unfortunately the case. I'm not used to not knowing the cases I should know.
The question is, was Wu about this provision?
4:50 p.m.
Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
No. I believe Wu was an appeal from the Ontario Court of Appeal. He was charged under the act of trafficking in contraband tobacco, so there was a minimum fine that was imposed. The court—the trial judge—found that, in the circumstances of the accused before him, Mr. Wu, imprisonment was inappropriate, and he imposed the mandatory fine. Then, because of the inability to pay, he said, “You're going to be sentenced to a conditional sentence of imprisonment at home because you have no ability to pay.” The court was really dealing—
4:50 p.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
Was this provision on the basis of common law or another provision in the code?
4:50 p.m.
Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
The Supreme Court would say it's an inappropriate interpretation of the availability of a conditional sentence.
4:50 p.m.
Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
That was really the starting point. In the course of its decision and proceeding on, it went through...you know, this was an accused in Ontario with no fine option program, so what are the proper steps to be taken and gone through?
4:50 p.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you.
(Amendment negatived [See Minutes of Proceedings])
Now we have NDP-1, if you would like to introduce it, Madame Boivin.
4:50 p.m.
NDP
Françoise Boivin NDP Gatineau, QC
Thank you, Mr. Chair.
The days we've spent studying Bill C-37 have been extremely informative. Some concerns were raised at second reading. After hearing from various witnesses, we can see that there is some basis for those concerns. Ms. Morency's answers about the application of the decision in R. v. Wu may alleviate those concerns in part. Be that as it may, we see that, despite being set out in the Criminal Code already, the surcharge is not imposed in a large enough number of cases—I wouldn't say 80% or 85%, or even 75% of cases—and the court is not even required to state its reasons in the record, in accordance with the facts presented.
Some groups have also raised concerns about certain prison populations who would have difficulty paying or who suffer from mental health problems. We've all heard about the Ashley Smith case, which is very much a hot topic. Even the government admitted there was a problem. The answers we heard during our question and answer period today call attention to the matter. So we won't bury our heads in the sand: in many cases, those who are in prison should probably not be there.
The surcharge is extremely well-intended. We wholeheartedly stand behind the objective, which is to increase funding for victims, as the Office of the Federal Ombudsman for Victims of Crime has called for I don't know how many times over the years. There is absolutely nothing wrong with that aspect. I believe everyone in this room supports the measure. But this isn't the only way to compensate victims. We heard Mr. Waller talk about the possibility of imposing bigger fines. It's one of the current provisions in Bill C-37. We didn't discuss it much because it didn't involve any amendments.
A little while ago, Mr. Jean mentioned clients that were able to pay the legal bill for their defence counsel. And we're glad of it. That said, they may be able to afford a higher fine. It will be useful to see how many times the courts impose a higher surcharge. That may be the way to shore up funding for victims programs.
Nevertheless, a problem remains. I am referring to borderline cases that are likely to fall through the cracks of the system. For example, in cases where a minimum sentence is imposed in the form of a fine, the surcharge will automatically be imposed. So that eliminates the possibility of rendering the right decision.
Indeed, the decision in R. v. Wu is an important consideration. My background is in civil law. Quebec's system is based on codes: the Civil Code, the Code of Civil Procedure, the Criminal Code and so on. Something that is clear and understood by everyone is our preference to codify rather than interpret the jurisprudence, as is often the case under the common law system. That is the beauty of our bijural tradition in Canada. Regardless, there are times when I prefer to write down what the law of the land should be, to put all questions to rest.
When we prepared our amendment, we tried to fully adhere to the government's objective of doubling the surcharge and making it mandatory, while maintaining the onus of proof on the accused, the conditions of which would be similar to those described in R. v. Wu. They are extremely specific cases. There are two conditions: the issue is not only whether the accused is unable to pay as a result of extreme poverty, which must be proven, but also whether it is impossible for the accused to access a fine option program under section 736.
I believe—and I think I speak on behalf of the NDP as well—that we genuinely need to strengthen this bill to the point of removing all weaknesses. As they say, the stronger the better. That would be ideal. That would reconcile almost all the logical points of view heard throughout our consideration of Bill C-37. That is what we're trying to do and it should not be considered unacceptable. It would truly improve the bill tremendously.
4:55 p.m.
Conservative
4:55 p.m.
Conservative
The Chair Conservative Dave MacKenzie
Bill C-37 amends the Criminal Code by, among other changes, repealing subsections 737(5), 737(6), and 737(10). This amendment proposes to replace subsection 37(10) with a text similar to the current Criminal Code text, where the effect of the replacement would be to negate the repeal of the subsections. 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.
5 p.m.
NDP
Françoise Boivin NDP Gatineau, QC
Not because I want to challenge you necessarily, Mr. Chair, but since I know my colleagues on the government side are really reasonable people and would love to debate that amendment—I'm pretty sure, because it is absolutely smart—I do challenge your decision, because I'm sure they will agree with me that we should definitely....
5 p.m.
Conservative
The Chair Conservative Dave MacKenzie
Should the chair's ruling be sustained?
(Ruling of the chair sustained: yeas 6; nays 5)
(Clauses 3 to 5 inclusive agreed to)
5 p.m.
Some hon. members
Agreed.
