Evidence of meeting #108 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was victims.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Yves Gratton  Lawyer, Criminal Section, Aide juridique de Montréal, Laval
Caitlin Shane  Lawyer, Pivot Legal Society
Moses  Lawyer, Pivot Legal Society
Robert Leckey  Law Professor, McGill University, and Past-President, Egale Canada, Egale Canada Human Rights Trust
Steve Coughlan  Professor, Schulich School of Law, Dalhousie University, As an Individual
Tom Hooper  Contract Faculty, Law and Society Program, York University, As an Individual
Gary Kinsman  Professor Emeritus of Sociology, Laurentian University, As an Individual
Calla Barnett  Board President, Canadian Centre for Gender and Sexual Diversity
John Sewell  Member, Toronto Police Accountability Coalition
Joel Hechter  Barrister and Solicitor, As an Individual
Rick Woodburn  President, Canadian Association of Crown Counsel
Christian Leuprecht  Professor, Department of Political Science, Royal Military College of Canada, As an Individual
Bruno Serre  Executive Board Member, Association des familles de personnes assassinées ou disparues
Karen Wiebe  Executive Director, Manitoba Organization for Victim Assistance
Nancy Roy  Executive Director, Association des familles de personnes assassinées ou disparues
Maureen Basnicki  As an Individual
Julia Beazley  Director, Public Policy, Evangelical Fellowship of Canada
Arif Virani  Parkdale—High Park, Lib.

4 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Rankin.

4 p.m.

NDP

Murray Rankin NDP Victoria, BC

Thank you, I'd like to thank all of the witnesses.

Thank you very much, Mr. Gratton.

I also particularly want to make a shout-out to Ms. Shane and Ms. Moses. I've visited Pivot on a couple of occasions and have seen the remarkable work you do for some of the most vulnerable people in Canada. I'm simply in awe of what you do. Thank you for what you do, and thank you for testifying here today.

I'd like to know a little bit more, though, about the nature of the case in which you intervened. You said that the primary argument was about cruel and unusual punishment for people who could not pay the fine, if I'm understanding you properly. The victim fine surcharge was simply impossible for them to address. I'm unclear about the point that one of you made about one day in jail in lieu of payment. I can't quite figure out how that connects. I'd appreciate if you'd speak to that.

I assume that you entirely support the amendments that are made in Bill C-75. However, you did say that you had some proposed changes at the outset. I'd like to know what those proposed amendments are, beyond simply supporting it.

4 p.m.

Lawyer, Pivot Legal Society

Caitlin Shane

Certainly. I would note that Naomi's portion of the submissions did note a number of recommendations. If you'd like, Naomi could reiterate those.

4 p.m.

NDP

Murray Rankin NDP Victoria, BC

I'd appreciate knowing them.

It's our job, of course, if we accept what you're suggesting, to try to reduce that to writing, to put that into legislative language, so any help you could provide would be appreciated.

4 p.m.

Lawyer, Pivot Legal Society

Caitlin Shane

Certainly. Following Naomi's comments, I'll answer your question with respect to the day in jail.

And thank you for the compliment. It's appreciated.

4 p.m.

Lawyer, Pivot Legal Society

Naomi Moses

Our proposed changes to proposed subsection 737(5) are simply to remove the language that right now says “an offender establishes to the satisfaction of the court that” and then the words “on application of the offender”.

We see that as restoring the previous discretion judges had in practice—this is what they did in practice in provincial court—which was to speak with an offender at the conclusion of sentencing about the victim surcharge and to give the offender an opportunity to speak to their financial circumstances. We know that many of these individuals, particularly the clients Pivot serves, typically are unrepresented. They may not even have access to duty counsel. Because the victim surcharge occurs at the very end of sentencing, in practical terms it's very difficult for these individuals to make formal application to the court and then to satisfy the burden of establishing “to the satisfaction of the court” that undue hardship exists.

4 p.m.

NDP

Murray Rankin NDP Victoria, BC

The effect of adding those changes would be to essentially codify the discretion that a judge would have in each and every case. That's the goal?

4 p.m.

Lawyer, Pivot Legal Society

Naomi Moses

That's correct.

That's while retaining the presumption that the surcharge will be ordered, unless a judge exercises that discretion and the person before them provides some indication that undue hardship exists.

4 p.m.

NDP

Murray Rankin NDP Victoria, BC

You take no issue with that presumption. You're okay with that.

September 25th, 2018 / 4 p.m.

Lawyer, Pivot Legal Society

Naomi Moses

Yes. Pivot absolutely supports the importance of victim services and the importance of funding those services properly. Many of the people Pivot serves find themselves before the court not just as defendants.

4 p.m.

NDP

Murray Rankin NDP Victoria, BC

They're victims.

4 p.m.

Lawyer, Pivot Legal Society

Naomi Moses

Some of them have been victims of crime. So this is an important presumption that exists in the code. We have no objection to the existence of the surcharge itself.

4 p.m.

NDP

Murray Rankin NDP Victoria, BC

Ms. Shane, you were going to add something.

4 p.m.

Lawyer, Pivot Legal Society

Caitlin Shane

You'd raised a question about the practice in B.C., which is commonplace, around sentencing an offender to a day in jail in default of payment. In our submissions as intervenors, we actually appended a list of over 100 cases in B.C. in which a sentencing judge ordered for a surcharge to be payable forthwith, and then, in default of payment, ordered that person to be sentenced to a day in jail.

I do want to be very clear that in raising this issue, I'm not in any way attempting to vilify B.C. judges. It's quite the opposite. We are acknowledging that this legislation as it stands puts B.C. judges in an untenable position where they are faced with a defendant who they know cannot pay and there are no other reasonable or proportionate means by which to sentence that person. It really is, as we called it in our factum, an act of mercy rather than malice.

4:05 p.m.

NDP

Murray Rankin NDP Victoria, BC

I respect that you're saying that, and I understand the motivation, but if you're a drug user and you are in jail for a day, that could itself be very difficult for a person. Your point is that the judge has no discretion at present so that's the best you can do, and the B.C. judges have shown mercy. That will of course change with the amendments, if they go through, in Bill C-75.

4:05 p.m.

Lawyer, Pivot Legal Society

Caitlin Shane

Absolutely. It's in recognition of all of those harms I outlined. In terms of balancing the different possibilities, that, unfortunately, is in some ways the least of all evils.

4:05 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you.

Ms. Khalid.

4:05 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Thank you, Chair.

Chair, I'll be handing over about a minute of my time to Mr. Sikand, if that's okay.

To the witnesses, thank you for your great testimony.

Ms. Shane and Ms. Moses, just taking a step back, what is the objective, in your opinion, of having a victim surcharge? Why is this in place at all?

4:05 p.m.

Lawyer, Pivot Legal Society

Naomi Moses

The objective, as we see it, is to fund services for victims, and those are very important services that warrant funding. Our objection is not to the existence of the surcharge, or to the funding of those programs, but rather to the mandatory imposition of the surcharge on people who cannot pay it. It's simply an impossibility to ask someone who has only $335 a month from income assistance to pay a surcharge that in many cases represents two-thirds of their monthly income.

While the objective of the legislation is laudable, and we think that the objective is frequently served by people who are able to pay the surcharge, it is not served in the example of Pivot's clients and people who are similarly struggling for basic survival.

4:05 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Do you think that the legislative changes as they stand in Bill C-75 in some ways help in providing those services to victims? Is the money coming in?

4:05 p.m.

Lawyer, Pivot Legal Society

Naomi Moses

We think that the money is coming in. We need to be cautious in talking about revenue and the way that revenue comes in, because we can't assume that all the surcharges that are imposed could ever be paid—it's simply not possible.

I note that in the last series of amendments in 2013, the amounts of the surcharges were doubled. Every person who is convicted of a crime is now paying twice what they were paying before. Even if many of those individuals cannot pay, the people who do pay are paying twice as much. In many provinces, they have seen increases, but again, it's very difficult to track exactly where that increase in revenue is coming from, whether it's a result of doubling or enforcement.

4:05 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

From my understanding of your testimony, you want to make it fairer and not all-encompassing to those who are more vulnerable in the justice system. It would be unfair for them to have to pay these surcharges, and the judge should be allowed more discretion to be able to make that differentiation. Am I correct?

4:05 p.m.

Lawyer, Pivot Legal Society

Naomi Moses

That's correct, yes.

The legislation as it's currently written offers no discretion whatsoever, so we are advocating simply for the restoration of that discretion.

4:05 p.m.

Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Thank you.

Mr. Gratton, do you have any input to the amendments to the current Bill C-75 as they've been proposed by Pivot?

4:10 p.m.

Lawyer, Criminal Section, Aide juridique de Montréal, Laval

Yves Gratton

No, I have absolutely nothing to add to my colleagues' statements.

However, I would like to clarify one point in connection with Mr. Rankin's question earlier; my colleague referred to the accused being incarcerated for one day in lieu of paying the fine. In Quebec, judges do not do that because the Quebec Court of Appeal deemed that illegal, and stated that they had to grant the province's statutory time period of 45 days. Judges cannot not grant that extension. Although I have not travelled there to verify this, I expect that the reason things are different in British Columbia is that a picture is worth a thousand words—judges see these indigent persons and realize that they will never pay the surcharge; so they prefer to impose a day's incarceration and close the file. I simply wanted to follow up on my colleague's example and give a more specific answer to Mr. Rankin's question.

To get back to your question, I have nothing to add, if not to say that I believe it is essential that we restore the judges' discretionary power, as proposed in Bill C-75.