Justice Committee on Nov. 25th, 2014

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

This motion proposes to amend the wording proposed for subsection 722(4) of the Criminal Code, which requires that a victim's impact statement be prepared in accordance with the procedures established by a program designated for that purpose by the province or territory.

The right to present a victim's impact statement is enshrined in the Canadian victims bill of rights and is an important avenue for victim participation in the Canadian justice system. Victims have benefited greatly from the assistance provided by provincially and territorially designated victim impact statement programs when preparing their statements, and you know that we like to cooperate with the provinces and territories, of course.

Victims should continue to benefit from the assistance provided by designated victim impact statement programs when using the newly created Form 34.2. This amendment would ensure that victims receive the assistance they require in completing the victim impact statement form for presentation.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 25 as amended agreed to)

(On clause 26)

[The Chair, Conservative, Mike Wallace]

We're now on clause 26 and amendment LIB-15.

The floor is yours, Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

This is yet another attempt to incorporate the advice from the Canadian Bar Association. This time it is their recommendation number seven. They're not having a very good day here today.

This amendment proposes to allow judicial discretion, something we're very fond of over on this side, in allowing the introduction of a community impact statement, since the bill provides no definition of a community or criteria for its representatives' selection. The bill currently permits one individual to file a community impact statement without defining “community” or explaining how an individual should be determined. Accordingly, a judge should have discretion, because we trust judges, to allow or disallow a community impact statement.

This is simply to restore judicial discretion along the lines of the advice we received from the Canadian Bar Association.

[The Chair, Conservative, Mike Wallace]

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I have a question for the department officials.

I may have misread the proposed subsection 722.2(1), which states that “the court shall consider any statement...”. This does not mean that the court is required to consider it from A to Z. It means that it can give consideration to the statement without giving it much weight. The court can still exercise its discretion. At least that is how I see it.

It is not a bad thing that the court considers the statement. I would not want anyone to think that I am not in favour of the court considering the statement. However, I want the court to be able to exercise its discretion. In my view, subsection 722.2(1) still gives this discretionary power to the court.

Am I missing something?

[The Chair, Conservative, Mike Wallace]

The floor is yours, Ms. Arnott.

[Pamela Arnott]

No. Once again, you are absolutely right, Ms. Boivin. The court is required to hear and consider the statement in its decision. However, it has the discretion to give it less or more weight.

[Françoise Boivin, NDP, Gatineau, QC]

So that goes back to saying “may consider”.

What is the difference between “shall consider” and “may consider”? Is the first version not more respectful to victims? My only concern with the second version is that it takes a little away from the rights of the victims, although section 722.2, which I just read, maintains the discretionary power.

[Pamela Arnott]

The distinction between the two wordings is that the court must consider the statement in its decision-making. That is the obligation that the provision imposes.

[The Chair, Conservative, Mike Wallace]

Is there anything further on amendment LIB-15?

(Amendment negatived [See Minutes of Proceedings])

Now we have amendment G-8.

Mr. Goguen, the floor is yours.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Chair, this motion proposes to amend the wording of proposed subsection 722.2(2) of the Criminal Code to require that community impact statements be prepared in accordance with a procedure established by a program designated for that purpose by the Lieutenant Governor in Council of a province or territory, similar to the case with the previous amendment.

Victim impact statements and community impact statements are an important avenue for participation in the Canadian criminal justice system, and victims have greatly benefited from the assistance provided by the provincially and territorially designated victim impact statement programs when they are preparing their statements. A community representative should be able to benefit from the assistance provided by the designated victim impact statement programs when preparing a community impact statement on a new community impact statement form, which will be Form 34.3. This amendment would ensure the community representatives will receive the assistance they require in completing the community impact statement form for presentation.

[The Chair, Conservative, Mike Wallace]

This technically is passed already because amendment G-7 passed. We'll be voting on clause 26 as amended.

(Clause 26 as amended agreed to [See Minutes of Proceedings])

(Clauses 27 and 28 agreed to)

(On clause 29)

We have amendment PV-18.

Madam May, the floor is yours.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you very much.

This takes us to clause 29 at page 25. This proposed amendment flows from the testimony of Catherine Latimer from the John Howard Society. I'll just quote from her:

While normally judges are required to assure themselves that the offender is capable of paying a fine before imposing it, the Victims Bill of Rights specifically provides that the offender’s financial means or ability to pay does not prevent the court from ordering restitution. Far too many accused are poor, marginalized, battling mental health and addictions and without the lawful means to provide financial compensation to others.

This is why my amendment attempts to take that consideration into account by suggesting that a restitution order is to be issued “unless the court is of the opinion that such an order would impede the successful reintegration of the offender into society”.

The effort is still there to make sure that the court considers the restitution order, but we give the judge the discretion and reminder that in achieving balance in the rights of the victim, we also want to see people reintegrated into society and become productive, tax-paying, responsible citizens wherever we can. That is why a restitution order might not be appropriate in every circumstance.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you.

Monsieur Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Chair, rehabilitation of the offender is already included in the principles to be applied by the court in determining the sentence—and that's in section 718 of the Criminal Code—so this motion is inconsistent with the objective of the bill, and that's to create a right to have restitution orders considered by the court in all cases.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I find the proposed amendment to be restrictive. It says that the court “shall consider” making a restitution. The wording could not be any weaker. The court's decision could even be based on factors other than the offender's reintegration into society. In fact, many other factors could be considered by the court. At least that is how I see it. The court will decide. There is no obligation. Since the provision says “shall consider”, that is what the court will do. But it could also consider a series of other factors besides social reintegration.

Ms. May, I am worried that your amendment will put all the focus on a single consideration. That could give rise to problems I am sure you would not want to happen.

[The Chair, Conservative, Mike Wallace]

Okay. Is there anything further on PV-18?

(Amendment negatived [See Minutes of Proceedings])

(Clause 29 agreed to)

(On clause 30)

We have amendment LIB-16. Since it's likely going to be moved, PV-19 will no longer be available.

The floor is yours, Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair, for allowing me to make another plea that we should trust our judges.

This clause seeks to preserve judicial discretion in the timing of restitution payments, as was recommended to us by what I thought was a highly respected organization, the Canadian Bar Association.

The bill requires a court to specify the dates that restitution payments shall be made and whether that's in one payment or in installments. However, a victim cannot enforce a civil order as long as the offender is under the restitution order. This could have the effect of potentially delaying compensation. The specificity of this provision could also offer false hope, and there is absolutely no good reason to limit the discretion of our judges in this respect.

This amendment would simply preserve judicial discretion and adopt the advice we received from the Canadian Bar Association in their testimony before us.

[The Chair, Conservative, Mike Wallace]

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I'm just wondering how this amendment, by striking this out, would help victims get their restitution orders. Isn't it enough to have the judges have a schedule of payments? Doesn't that give them the needed flexibility versus striking it out completely?

[Sean Casey, Liberal, Charlottetown, PE]

The language that's contained is mandatory.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Sure. If it's mandatory—

[The Chair, Conservative, Mike Wallace]

We're not on debate. Make your point, and then if Mr. Casey wants to get back on the—

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

The point is that the flexibility is incorporated. Although it's mandatory to make the order, the flexibility is in the payment schedule to accommodate both parties.