Good afternoon, honourable Chair and members of the committee. My name is Caitlin Shane, and I'm a lawyer with Pivot Legal Society. I'm joined today by Naomi Moses, who is a lawyer and one of Pivot's board members.
Pivot is a human rights and legal advocacy organization based out of Vancouver's Downtown Eastside. We take our mandate directly from our clients, who are sex workers, people who use drugs, people without homes, and people who by and large are living well below the poverty line.
On behalf of our clients today, we urge the committee to support the proposed amendments to the victim surcharge provisions. It is critical to return discretion to judges, who, under the current legislation, do not have the discretion to waive fines for defendants who cannot pay. We have some minor recommendations. I will leave that to Naomi to discuss shortly.
By way of background, when Pivot intervened before the Supreme Court of Canada in a decision that challenged the constitutionality of the victim fine surcharge, we made the argument that the mandatory surcharge amounted to cruel and unusual punishment. We explained what it means for poor defendants to appear before the court and have a fine imposed on them that they will not be able to pay. My hope today is to explain to the committee some of the harms that we explained to the court.
For the defendant who manages to pay the surcharge, it means having $100 less from the $335 that person earns on income assistance each month to pay for food, clothing, and basic necessities. For the defendant who doesn't pay, it means being subject to civil enforcement—and in B.C. the surcharge can be offset from social safety net funds, from bank accounts, and from wages. For the defendant who applies to extend the deadline for payment—a payment that this person may never be able to pay—it means engaging repeatedly in an application process that is lengthy, inaccessible and not supported by province-funded legal assistance.
For the defendant who defaults on payment, it means living in fear of the constant consequences of default, which can include arrest. It doesn't so much matter whether arrest is a likelihood. The Supreme Court of Canada has found, in relation to both sex workers and people who use drugs, that fear of arrest can lead to really dangerous consequences. It means being cut off from service providers. It means not calling police when there's an emergency and help is needed. It means isolation amidst housing and opioid crises.
We submit that the surcharge gives rise to the same scenario. It's still relevant. A person who lives in fear of imprisonment is subject to those same risks and will not necessarily rely on help when it's needed.
Judges across B.C. have recognized these harms and, despite common-law precedent, routinely sentence offenders to a day in jail in default of payment. While this practice may be alarming, it is not rooted in malice. We say it's rooted in mercy and in recognition of the fact that this defendant cannot pay. There are no other options for the defendant who cannot pay.
I'll close by saying that Parliament today has an important opportunity to remedy the harms created by the mandatory victim fine surcharge. We ask only that the provisions be made as accessible and as responsive to the needs of low-income communities as possible.
I'll turn it over to Naomi now, who can better explain those.