Justice Committee on Oct. 9th, 2014

[Françoise Boivin, NDP, Gatineau, QC]

Are you sure it will be interpreted that way? Aren't people going to think, instead, that this is a way of codifying in law what the courts have found, namely that people had to be given a reasonable time to pay?

When I read “reasonable time”, I wondered whether you weren't solving your problem, but rather opening another can of worms.

The courts might say instead that the legislature, through Bill C-32 understood that there was little hesitation, under the circumstances, to apply the surcharge in a situation where we have a person who is not necessarily unable to pay, but who would find it extremely onerous to pay $100 or $200—which is perhaps very little to some others. Some people have extremely limited budgets.

What makes you say that this solves the problem? I find that the term itself is questionable.

[Pamela Arnott]

The term “reasonable time” appears in nine provisions of the Criminal Code.

Naturally, we studied the legal interpretation of these terms. The factors that the courts rely on to interpret this concept are the circumstances of the parties and the fact that the period set for payment gives the offender a reasonable opportunity to repay their debt. There is therefore an interpretation of this concept that has been quite well established in the jurisprudence from the 1920s to today.

[Françoise Boivin, NDP, Gatineau, QC]

In this context, do you think this will confirm the rulings handed down by the courts to extend these periods of time? Won't they rather use this as support?

From what you're saying, the unique situation of the parties constitutes precisely the argument used by the judges to determine the amount payable over, I don't know, a period of 100 months. In one particular case, this period was quite long.

Moreover, in my view, the decision was very thorough and carefully explained, under the circumstances, and included the factors you just mentioned. This is why, to my way of thinking, the government took note, if you will, of the problems that started emerging in the courts.

[Pamela Arnott]

I am quite familiar with the cases you are talking about.

The result was that the offender was asked to pay a few cents a day for a dozen years or a hundred years. We do not consider that this reflects the purpose of the surcharge, which is first to ensure offender accountability, and second to contribute to victim services. I would argue that a payment of about 30 cents for years does not meet the objectives of the reasonable time provision.

[Françoise Boivin, NDP, Gatineau, QC]

I will ask you a very specific question. The amendment you are proposing to the section dealing with the surcharge and with reasonable time should, in your opinion, resolve the problems we are currently seeing in the courts. Is this correct?

[Pamela Arnott]

Yes.

The amendment clarifies the legislative intent with regard to this aspect of the victim surcharge.

[Françoise Boivin, NDP, Gatineau, QC]

Under proposed section 739.1 of the Criminal Code, an offender’s financial means or ability to pay would not prevent a court from making of a restitution order.

You studied this provision on the basis of the jurisprudence and you deemed that it met the Supreme Court requirements in similar cases. You are therefore setting aside the concept of the offender's ability to pay, which is no longer considered important. What happens to people who can't pay? Are they sent to prison?

[Pamela Arnott]

The bill stipulates that this is not a determining factor in the court's decision to impose a restitution order. It is one of the factors, but not the determining one. This represents a codification of the decisions of appellate courts in several provinces and decisions dating back a number of years.

[Françoise Boivin, NDP, Gatineau, QC]

If I'm understanding you properly, the courts will still be able to consider the offender's ability to pay. This might not be the sole factor, but the courts will be able to continue taking this factor into account.

[Pamela Arnott]

That is correct.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

I have no other speakers on my list.

I know Mr. Dechert thanked each and every one of you for the work you do as civil servants. You are from the Department of Justice, the Department of Public Safety and Emergency Preparedness, Correctional Service of Canada, and the Parole Board of Canada, so please pass on to your colleagues and those who work in those departments that we appreciate the work you do as civil servants. Some of those areas are very tough areas to be working in. We really appreciate the effort that each and every one of our civil servants makes.

You don't get too many thanks and at our level we don't get to meet too many people who actually do the work for the Government of Canada, so on behalf of the justice committee, we want to thank you for all that.

With that, we'll adjourn. Happy Thanksgiving everyone.