Justice Committee on Sept. 25th, 2018

[The Chair, Liberal, Anthony Housefather]

Good afternoon, colleagues. Good afternoon to our witnesses.

We are now going to resume our study of Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts.

It is a pleasure to welcome our witnesses for the first panel.

We're joined by counsel Yves Gratton, from Aide juridique de Montréal | Laval.

Welcome, Mr. Gratton.

[Yves Gratton, Lawyer, Criminal Section, Aide juridique de Montréal, Laval]

Thank you.

[The Chair, Liberal, Anthony Housefather]

From Pivot Legal Society, we have two attorneys from British Columbia, Naomi Moses and Caitlin Shane. Welcome to the committee. Because we try to hear the witnesses on video conference first, we're going to start with your testimony. Then we'll hear from Mr. Gratton, and then we're going to have questions.

Pivot, please go ahead.

[Caitlin Shane, Lawyer, Pivot Legal Society]

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.

Thank you.

[Naomi Moses, Lawyer, Pivot Legal Society]

Good afternoon, honourable Chair and members of the committee. I am a lawyer at Rosenberg Kosakoski Litigation in Vancouver, and I appear today on behalf of Pivot Legal Society.

I echo my colleague's acknowledgement that this proposed legislation is an important step in ameliorating the reality that Pivot's clients, many of whom live in extreme poverty in the Downtown Eastside of Vancouver, have been very negatively impacted by the mandatory victim fine surcharge. We also have some concrete recommendations for improving these proposed amendments.

I'll focus my submissions on only one part of the proposed amendments, which is proposed new subsection 737(5). As it is currently drafted, this provision allows offenders to be exempted from payment of the victim fine surcharge, provided that they can establish, to the satisfaction of the court, that it would cause them undue hardship. The individual must apply to the court for an exemption.

We believe that the wording of subsection 5 should reflect what judges did in practice prior to the 2013 amendments to these provisions that made the victim fine surcharge mandatory. The general practice in provincial court was for a judge to exempt a person, often on a judge's own initiative, during sentencing, without a formal application, after the individual was given an opportunity to speak to their financial circumstances.

Removing the words in this provision, “an offender establishes to the satisfaction of the court that”, and also “on application of the offender” would restore a judge's discretion to make these exemptions as needed, while retaining the presumption that a surcharge will be imposed.

A revision such as this one would ensure that the hardship exemption is accessible to people who need it the most. These are people living in poverty. They are generally unrepresented by counsel, and they are often convicted of relatively minor offences, for example, shoplifting groceries, breach of conditions, and failure to appear, all of which are very common criminal charges in the Downtown Eastside.

In addition, we urge the committee to consider how this bill might be expanded to waive the existing surcharges that have been imposed on people who cannot pay them. These are people who have already asked for extensions of time to pay, as this is the only relief currently granted under the existing legislation. We propose that this legislation be amended so that these surcharges are struck from the records of people living in poverty, who cannot pay them without seriously compromising their well-being, safety and survival.

Thank you for the opportunity to speak to the committee today. We welcome your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

We'll give the floor to Mr. Gratton, from Aide juridique de Montréal | Laval

[Yves Gratton]

Good afternoon, everyone.

I won't repeat what the two lawyers from Pivot Legal Society just said. I also had the opportunity to hear their arguments before the Supreme Court.

Let me provide some background. One of my reasons for being here today is a case that I appealed in Quebec, Alex Boudreault v. Her Majesty the Queen, et al. The case concerned the judge's discretion regarding whether to impose a victim surcharge, a discretion that was removed by the Conservative Party in 2013. The case was heard by the Supreme Court in April 2018, and we're awaiting the verdict. Three Court of Appeal for Ontario cases were added to Mr. Boudreault's case, which I was defending and which came from the Court of Appeal of Quebec. Therefore, there were interveners from across Canada.

First, I would like to say that we aren't fixated on certain legal arguments. For example, we aren't claiming that the imposition of a victim surcharge violates section 12 of the Canadian Charter of Rights and Freedoms. Without going into that level of detail, we want to reassure people and tell them that, as representatives of the accused individuals, we aren't opposed to the principle of the victim surcharge. The surcharge exists for a reason and it's important in the Canadian criminal justice system. All interveners, prosecutors and counsel in Canada agree on that point.

However, we don't agree with the removal of the judge's discretion. We would like this discretion to be restored, for the reasons indicated by my two colleagues, among other reasons. One of the fundamental principles of the Criminal Code requires the judge to ask about the accused person's ability to pay before imposing a fine on the person. We believe and we respectfully argue that this reasoning should also apply to a victim surcharge. It must be understood that the victim surcharge applies not only to all cases, but also to all charges contained in an indictment or information.

I'll provide a simple example. In the case of five charges related to a criminal offence and for which the person receives a prison sentence, the victim surcharge will amount to $1,000. This could result in a disproportionate penalty, since the judges won't take into account the victim surcharge that must be imposed and that will be handled by the court registry. In addition, the offenders won't even pay the surcharge because they don't have any money.

If the offenders are sentenced to prison, some people may think that the offenders have the option of doing community service as punishment for their default of payment. However, in the provinces that allow community service, the time limit is two years. I don't have any evidence or solution, but to my knowledge, inmates can't do community service. If their prison sentence is three years, the only solution in their case would be to extend their incarceration, as mentioned by my colleagues. This is one of many examples in the case of a default of payment.

There may have been some laxness in Canadian trial courts before the removal of the judge's discretion in 2013. I agree that, in exercising their discretion, the judges may not have conducted the same type of investigation before imposing a victim surcharge as the one that they conducted before imposing a fine. Since 2013, counsel and courts have realized that they would be more rigorous in exercising the discretion if it were restored, since the imposition of a victim surcharge would no longer be automatic.

As I was saying, there may have been some laxness. Without questioning the importance of the victim surcharge, some chose not to impose it if, for example, the offender had just been sentenced to five years in prison. If the discretion is restored, the courts can and may need to ask certain questions about the appropriateness of a victim surcharge. I hope they do so, and I imagine that the defence counsel will be able to answer the questions properly.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

I appreciated hearing from all the witnesses.

We'll start the question period.

Mr. Cooper, the floor is yours.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

Thank you to the witnesses.

As I understand it, in 2000 there was a change to the victim surcharge to provide judges with discretion in the case of undue hardship.

Monsieur Gratton, you indicated in your testimony that it is your belief that the judges will be a lot more judicious in applying the waiver of a victim surcharge in light of the fact that their discretion was taken away. I think it would be helpful, for the record, to understand, in part—and you did allude to it in your testimony—some of the figures that we saw.

In the province of New Brunswick, a report in 2008 indicated that the victim surcharge in two-thirds of some 62,000 cases had been waived. While judges were supposed to justify their decision for waiving the surcharge, this information was not included in 99% of 861 cases reviewed for that 2008 study in the province of New Brunswick. In light of, really, a consistent pattern of waiving the victim surcharge when, really, in many cases there was nothing other than the mere assertion of undue hardship involved, why should we have any confidence that this will not return to the same pattern that resulted in the previous Conservative government making that surcharge mandatory? It should be noted that there was a considerable cost in the form of funds for services and programs to support victims as a result of that waiver.

[Yves Gratton]

I understand your concerns. However, with all due respect, I don't think this angle is the best way to address the issue.

When I say the justice system should be trusted, I believe it. The interveners are aware of what they'll need to do in the future. When the judges' discretion was removed in 2013, all these issues and figures were presented to all the committees and during parliamentary debates. I listened to many of the debates, but we can make these figures say what we want them to say.

Of course, maybe some people should have paid a surcharge, but the surcharge was waived. Moreover, when a person pays the surcharge, it's questionable whether the entire amount actually goes to the criminal injuries compensation fund. I doubt it.

However, I don't think that's the right question to ask. Instead, the issue is whether the judges will know that they need to ask questions. I believe so, and I also believe that the judges will fulfill their obligations. In response to the statements made by the two lawyers who presented their arguments earlier, I would add that a court will find it quite simple to go through all the questions regarding a person's income. When people receive social assistance benefits, regardless of the province, they normally have nothing left after deducting the cost of rent and food.

I think that the judges will ask more of these types of questions to better inform their decisions. We must trust the justice system rather than force courts to impose victim surcharges.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that.

Monsieur Gratton, Ms. Moses and Ms. Shane, I certainly heard your testimony respecting the victim surcharge. All of you are criminal lawyers. Do you have any comments on any other aspects of this bill or do you prefer to confine your remarks to the victim surcharge?

I certainly welcome any other comments that you have as practitioners about some of the positives or some of the other concerns that you may or may not have with Bill C-75.

[Yves Gratton]

Should I answer first? I think the question is for all three of us.

[The Chair, Liberal, Anthony Housefather]

The question is for all three of you. Mr. Cooper asked whether you have comments on the other provisions of the bill.

Mr. Gratton, do you want to answer quickly?

[Yves Gratton]

I'll answer the question, but first I would like a clarification. Are you asking whether we have comments on the other provisions of the bill concerning the recovery of the surcharge?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

The short answer is yes. I'm asking if you have any other comments from your perspective as a practitioner.

[Yves Gratton]

I see.

The Supreme Court stated that an indigent person cannot be incarcerated for not having paid a fine or surcharge. In such cases, under section 734.7 of the Criminal Code, the offender must go before the judge and ask for an extension of the period given to pay the fine.

In Quebec, that period is 45 days. It's certainly covered by the Criminal Code. In practice, people are supposed to go back before the judge and ask for an additional period of two months. If they don't pay the fine, they go back two months later and ask for an additional two months. The judge cannot ask that an indigent person be incarcerated. That was the Supreme Court ruling, and judges respect that decision.

If the person goes before the judge and asks for more time, in theory, he or she will never go to jail. However, in practice people do not go before the judge, either because they are negligent, or because they are afraid, or do not know where to turn. Those who are homeless and have no income will not go before the judge. If the judge does not receive an extension request, he will issue a committal warrant. Can it be said that a warrant of committal meets the objective of the victim fine surcharge? With all due respect, the answer to that is no.

Canadian society will in the end have to pay for the additional incarceration, and the victim surcharge will never be paid. That is one of the consequences. In theory, the person can go before the judge and ask for more time to pay. This was also the decision of the Quebec Court of Appeal in the Chaussé case, and the court in fact said that defendants could ask for extensions for the rest of their lives. Indeed, people can ask for extensions, but who does so? No one.

There is also the matter of the suspension of drivers' licences or other licences because one has not paid a surcharge. One cannot ask for a pardon until the surcharge has been paid.

The law is also applied in civil matters, such as in the Boudreault case. That gentleman had been released and had been asked to post bail. He provided money to the court to meet that condition. When he committed further offences, he was again incarcerated. When Mr. Boudreault was convicted, the civil court clerk of the Montreal courthouse simply took some of the bail money to pay part of the surcharge. The person who had posted the money, his mother, lost her money because the court clerk took money from the bail money to pay the surcharge, since Mr. Boudreault was incarcerated and had not paid it.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

The time has expired.

Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

First of all, I'd like to thank the two witnesses who couldn't be here in person but are joining us from B.C.

I guess this is the best manner in which to do this, because this opportunity was taken away from you. As Mr. Cooper was saying, you were very persuasive on the victim fine surcharge and the harms that arise because of the system we've previously had. You're in favour of giving judges more discretion. Apart from that issue, is there any other aspect to this bill that is of interest to you and that you would like to comment on?

[Caitlin Shane]

For today, we'll be limiting our submissions to those around the victim fine surcharge.

I believe the committee will be hearing from Marie-Ève Sylvestre on some of the impacts of the bill with respect to sex workers as well as bail conditions. She's probably far better placed to speak to those, and her position on those issues would align with Pivot's as well.

Thank you.

[Ali Ehsassi, Liberal, Willowdale, ON]

For Monsieur Gratton, I have a question. You were talking about how there is a provision in the criminal court where you can't necessarily force indigent individuals to pay the surcharge.

You said a lot of people are unaware of it and they're not exactly sure how to take advantage of that provision. I assume it would fall to duty counsel to inform individuals. Is that not generally the person who guides individuals who perhaps cannot afford a lawyer? Would they not be their first line of defence, to inform individuals of their rights?

[Yves Gratton]

Yes, absolutely. In my opinion, the lawyer's role is not just to represent clients in court. I'm sure my fellow lawyers agree.

Our role is first to let the person know the amount of the surcharge, as that information is not provided at the hearing. Judges say “plus the surcharge”, or “in addition to the surcharge”, and the accused has no idea what the amount to be paid is. If he is free, we must direct him to the clerk of the criminal court so that he can obtain his documents. Once the accused has signed the surcharge papers regarding the fine he must pay within 45 days, I don't think I have the obligation to call him 45 days later to ask him if he paid it; he knows what he has to do.

However, as I was saying, our role can be as simple as saying that the person has no money to pay the surcharge and will not be paying it, and does not know where to go from there. On the form that indicates the amount to be paid, it does not say clearly that the person has to go to such or such a room before a given judge to ask for more time to pay. Homeless people will often misplace or lose their papers. To drug addicts, those papers can seem secondary. I'm not saying that that is an excuse for non-payment; I simply mean that the imposition of a surcharge may lead to complications unintended by the legislator. So I try to provide information as best I can, but there are limits to what I can do.

[Ali Ehsassi, Liberal, Willowdale, ON]

Absolutely.

Apart from the surcharge, is there any other aspect of this bill that you would like to comment on? All of your comments have focused on that.

[Yves Gratton]

No. In fact today I am focusing on section 737 of the Criminal Code.

Since I did not submit a brief, I invite you to read my briefs to the Supreme Court of Canada, which are public documents. I drafted a brief for leave to appeal, and a brief for the justices, which I invite you to consult.

All of the witnesses will primarily address the unintended consequences of the mandatory victim fine surcharge.

[The Chair, Liberal, Anthony Housefather]

Mr. Ehsassi, do you have anything else?

[Ali Ehsassi, Liberal, Willowdale, ON]

No, thank you.