Evidence of meeting #37 for Public Safety and National Security in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was restitution.
A recording is available from Parliament.
Executive Director, Elizabeth Fry Society of Canada
Just to back up, I do believe it's important for people to pay debts. I wouldn't necessarily say I'd support, in principle, the bill. I support, in principle, the notion.
Again, it's a challenge when we have a bill that essentially duplicates what is already available in the law, to be able to have compensation schemes, restitution schemes. Obviously we support child support being paid. As a single mom, I'm certainly someone who would support child support being paid.
Conservative
Candice Bergen Conservative Portage—Lisgar, MB
But you have the opportunity.... Your former spouse, or whoever is paying the child support, as a non-offender, is obligated to pay it. From the testimony we've heard, there is no obligation for offenders, even if they come into money, to pay child or spousal support, or even the restitution.
Executive Director, Elizabeth Fry Society of Canada
Actually, I think there is still a responsibility to pay it.
Executive Director, Elizabeth Fry Society of Canada
Whether those mechanisms are enforced by the courts is a family court matter that could be enforced. Certainly by registration of that debt it can be enforced.
Conservative
Candice Bergen Conservative Portage—Lisgar, MB
One more quick question, then. Would you consider it a punitive measure to require offenders to pay, no matter why they received the award from the federal government? You defined it as they were victims themselves. Do you consider it a punitive measure to ask offenders to pay their debts or to pay their obligations?
Executive Director, Elizabeth Fry Society of Canada
Those are two separate questions. I think that one, yes, it's important that people pay their debts. And no, I don't think it's unfair to require people to pay their debts.
I think, though, when they've received a payment, as a victim, then—
Conservative
Candice Bergen Conservative Portage—Lisgar, MB
The way you view it, you don't think someone should have to pay someone that they've victimized financially—
Executive Director, Elizabeth Fry Society of Canada
No, I think there should not be—
Conservative
Candice Bergen Conservative Portage—Lisgar, MB
—if they received the funds because they themselves are victims.
Executive Director, Elizabeth Fry Society of Canada
I'm sorry for interrupting.
I would be clear that there are mechanisms to enforce those debts and obligations, and that's the appropriate mechanism to take, not to then allow all of their income to be opened up, which essentially already is, anyway. Corrections has access, as Mr. Toller said. They can see what goes into prisoners' accounts, as they sometimes do and are sometimes challenged for doing. They should not then be able to just reach into those accounts for whatever purpose they choose.
Conservative
Candice Bergen Conservative Portage—Lisgar, MB
I don't think this bill actually words it that way, but thank you.
I'll turn it over to Mr. Leef.
Conservative
The Chair Conservative Kevin Sorenson
Thank you.
We're going to go back to Mr. Fineberg.
We want to welcome you. In your absence, we did already introduce you. It was a glowing introduction of all you've ever done, and you just have to—
Conservative
The Chair Conservative Kevin Sorenson
Yes, let's agree with that.
We would invite you now to give your opening statement and then we'll come back to the remaining four and a half minutes for the government.
Go ahead, Mr. Fineberg.
Vice-President, Canadian Prison Law Association
The Canadian Prison Law Association thanks you for the opportunity to appear on this bill.
We're a national organization of prison law practitioners from across the country whose purpose is to advocate on behalf of incarcerated persons and promote the rule of law as it affects the prison community. Since our founding in 1985, it has been our privilege to appear before this and other committees of Parliament on matters affecting the prison law environment.
I should mention that while our members are legal professionals, all activities undertaken on behalf of the CPLA are performed on a voluntary basis.
Our organization has objections to Bill C-350 based on principle and law. We are aware of and somewhat resigned to those many restrictions and irritants which consignment to a federal institution lawfully imposes on our clients and their incarcerated peers, yet the penalty unexpectedly proposed by Bill C-350 is of a kind unrelated to the rest. It is difficult to imagine that the sentencing judge, with one eye on the facts and the other on proper sentencing principles, would have anticipated, much less intended, the imposition of special rules for the garnishment of monetary awards, especially as the sanctioned criminal behaviour likely hasn't the slightest connection to the civil ill this legislation wants to cure.
Do not think that we stand against the payment of spousal and child support orders, or the payment of restitution, or the satisfaction of monetary judgments won in the civil courts. What we deplore is the conferral on deserving creditors of a new statutory advantage which is proferred only where and because their adversary is a federal prisoner. If there exists compelling reasons for offenders to respect court-ordered payments, it is not because an individual has committed a robbery, or an assault, or a drug offence; it is for exactly the same good reasons that apply to every other Canadian who is the subject of a court order. The statutory pressure on offenders to comply with orders should be neither less nor greater than that on the rest of the public. To operate otherwise would be to head down the road to second-class citizenship with second-class civil rights.
We must not forget that there was a time when conviction brought with it civil death, the extinction of all civil and property rights. The damaging disparity of the offender's status and that of the ordinary citizen could not have been more complete, but Canadian society has steadily moved away from that antiquated and counterproductive notion.
In 1906 the most drastic features of civil death were swept away in Quebec through the action of legislators like yourselves. In the rest of Canada the legislatures took action 14 years earlier. Still, the courts were slow to admit that offenders had rights that could be violated by unfair decisions by penitentiary authorities.
The Supreme Court decision in Solosky v. the Queen, in 1979, was a turning point, crystallizing the new understanding that “a person confined to prison retains ail of his civil rights, other than those expressly or impliedly taken away from him by law”.
Today this concept is built into the Corrections and Conditional Release Act itself, which reads at paragraph 4(d), as amended by Bill C-10:
(d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted;
Clearly, that concept does not endorse a prejudicial garnishment scheme necessitated by neither sentencing principles nor the constraining barriers of bricks and bars.
Should the proposed rules be adopted, would this return Canadian offenders to the cruel and discredited condition of civil death? Obviously not, but it would be a step backward in that direction, and if it should serve to encourage additional measures that further degrade the civil status of offenders, it would be part of a societal tragedy.
We wish to refer the committee to the possibility that this adverse treatment reserved for federal offenders would violate section 15 of the charter, which prohibits discriminatory measures based on membership in a disadvantaged group. Of course, for a section 15 challenge to succeed the courts would have to recognize offenders, or at least federal offenders, as a group contemplated by that section.
Admittedly, this position was rejected in the Sauvé case by the Federal Court of Appeal, and subsequently by four justices of the Supreme Court, but we hasten to remind you that that opinion is found in a minority decision. That was in 2002. We note that the majority in the Sauvé case declined to rule on the application of section 15 to prisoners, leaving the door open for a differently constituted court to rally to our position, which we respectfully submit will one day prove to be the right one.
If the attack on Bill C-350 on equality grounds should have the look of a viable but uphill battle, the balance is different where the sections 91 and 92 debate is concerned. Here, we think it is for the bill's defenders to demonstrate why this apparent federal invasion of provincial jurisdiction would not be struck down. The question warrants a close examination by experts more focused than we are on the issues raised by section 91 and 92 conflicts, or, to be more specific, conflicts between Parliament's legislative authority over penitentiaries and the provincial legislatures' jurisdiction over matters related to the administration of justice and property and civil rights.
Given this bill's overt duplication of at least some provincial activity, before proceeding to enactment of Bill C-350 it surely would be prudent to hear from the provincial attorneys general, as they are among the interested parties who might be provoked to challenge your jurisdiction in the courts.
Without waiting for expert opinion, however, we feel comfortable stating that Bill C-350 wants to create rules governing matters in the provincial domain, and furthermore risks impairing the provincial scheme already controlling execution of court orders against all assets. The new specialized regime would create confusion for creditors faced with two sets of rules and create two classes of creditors, conferring an unfair advantage on those fortunate enough to have federal offenders as their debtors. One is forced to wonder if the new selective enforcement possibilities against federal offenders will work an even greater mischief by inspiring an interest on the part of some creditors in seeing their debtors receive a federal sentence.
We have said that we have no disagreement with legal rules that facilitate creditors' exercise of their civil and property rights. We imagine the author of this bill shares that position. Why, then, does he not seek to assist all the deserving creditors, instead of a small minority of them? The answer, of course, is that he understands this is beyond your competence as federal legislators. It is a provincial matter for your provincial counterparts, and that is how the execution of court orders and judgments should be handled.
We wonder as well if anyone has examined the financial burden of setting up a comprehensive registry of awards and judgments and orders issued against offenders and of federal awards of ail kinds in offenders' favour. Or is Mr. Lauzon's proposal to hand Correctional Service Canada, or some other branch of the federal bureaucracy, the assignment and discover later what the set-up and annual costs will be?
Bill C-350 pits itself not only against provincial legislative and administrative efforts, it seeks to undermine Correctional Service Canada's own operations. One remembers that Bill C-10 has recently added section 15.1 to the Corrections and Conditional Release Act, instructing wardens to ensure that a correctional plan is established for all offenders, the goal of which is to bring about their rehabilitation and reintegration on release as law-abiding citizens. To that end, each correctional plan must contain “objectives for the offender's behaviour, including ... (iii) the meeting of their court-ordered obligations, including restitution to victims or child support”. Offenders' progress toward meeting these objectives is to have an impact on transfer and parole decisions.
The correctional plan is at the heart of Correctional Services Canada's program to move the prison population toward responsible attitudes that it is hoped will persist after release. I assume the inclusion of court-ordered obligations in the plan was not done without some thought. CSC does not want court orders satisfied despite the offender's opposition. That would defeat the goal of bringing offenders to understand and accept the rightness of responsible behaviour toward their dependants and creditors. Bill C-350 will pre-empt and frustrate CSC's mandate in this regard, one that was just conferred by Bill C-10.
Vice-President, Canadian Prison Law Association
What we have said thus far is in reaction to the bill's intention. Our criticisms have presumed that the provisions as drafted will operate to create the proposed recovery system. But will they?
We note that the whole of the proposed section 78.1 is made conditional on satisfaction of its subsection (3):
In making payments under this section, Her Majesty is not required to take into account any judgment or order of which Her Majesty has no actual knowledge at the time the payment is made.
The very deliberate effect of that measure is to make this payment scheme operational only when the orders and judgments contemplated have been duly filed or registered in some manner that formally notifies Her Majesty in right of Canada of their existence. It could hardly be otherwise. No one should expect the administrator of the Canadian Human Rights Tribunal to cut a cheque and forward it to a faceless individual whose claim to be a creditor is communicated through a mere letter accompanied by a copy of a punitive court order that may or may not be genuine.
Keeping the knowledge requirement in mind, we turn to the proposed paragraph (a), which refers to amounts owed by an offender pursuant to a spousal or child support order. We expect this provision will be without effect. Recovery for orders such as these is already managed by administrative systems established and controlled by provincial legislatures acting within their jurisdiction. In every province and territory there exists a maintenance enforcement branch whose support orders are filed. Such orders are routinely issued with a clause requiring that support payments be directed not to the individual creditor but to the maintenance enforcement branch.
The maintenance enforcement branch, in turn, without any assistance from Bill C-350 , files the support order with all appropriate bodies, including federal tribunals, thereby garnishing not only wages but also monetary awards, both provincial and federal. The action contemplated at paragraph (a) is already taking place through a well-defined and comprehensive structure equally accessible to all creditors, a structure, we remind you, that is already funded. One sees that the proposed offender recovery scheme for support orders is entirely redundant, if not pernicious.
Conservative
The Chair Conservative Kevin Sorenson
Can you wrap it up? I don't know how much you have left there. Are you on your last page?
Vice-President, Canadian Prison Law Association
I'll summarize.
Dealing with the other heads for recovery, paragraphs 78.1(1)(b) and 78.1(1)(c), the picture is less clear, because a crown attorney is party to the proceedings in which restitution and victim surcharge orders are made. Is this sufficient knowledge to consider that Her Majesty in right of Canada has been put on notice and to allow moneys to be diverted from awards? It's not clear to us at all.
When we arrive at paragraph (d), which concerns judgments in civil courts, it becomes much less obvious that this can be done. These orders are not registered with anybody, and no mechanism has been proposed—
Conservative
Candice Bergen Conservative Portage—Lisgar, MB
Mr. Chair, we are so limited on time, and I think the—
Conservative
Conservative
The Chair Conservative Kevin Sorenson
It looks as though he is probably ready. We go only until five o'clock today, or maybe a little after five, and then we move into committee business.
Mr. Leef, I'm going to come back to you. You have four and a half minutes, roughly.