Mr. Speaker, I am pleased to rise today on the debate on Bill C-350, an act to amend the Corrections and Conditional Release Act (accountability of offenders).
This is a particularly timely debate, as the justice and human rights committee, upon which I sit, continues its deliberation on the matter of Bill C-37, increasing offenders' accountability for victims act.
I will organize my remarks today around two themes. First, I will address where the bill fits within the government's overall approach to crime and justice. Second, I will address the specific critiques I have on this legislation, particularly from a law and poverty perspective.
May I state, parenthetically, that I began my law teaching career some 42 years ago in the area of law and poverty. One of the first books I co-edited was one that was precisely entitled Law and poverty.
The common thread of both Bill C-37 and Bill C-350, legislation proposed by government members, is that they both seek to address the accountability of offenders through financial obligations on or after sentencing.
Bill C-37 proposes to double the victim surcharge and make it mandatory. Bill C-350 proposes to amend the Corrections and Conditional Release Act to provide that any monetary amount awarded to an offender pursuant to a legal action or proceeding against the Crown must be paid to victims and other designated beneficiaries.
It bears repeating that all parties agree on the objectives of these two pieces of legislation, namely that offenders must be held accountable for their acts and that restitution must be made. It is an objective of the sentencing process outlined in the Criminal Code itself.
However, the Criminal Code provides other purposes in sentencing. I believe section 718 of the code bears repeating, for the benefit of colleagues and those hearing these debates. It states:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions....
I pause here in my reading of this section to note that the Criminal Code places sentencing efforts alongside crime prevention initiatives. Indeed, the two are given equal footing.
Regrettably, while we have a steady stream of legislation from the government with respect to increasing and enhancing sentencing, particularly in regard to imposing mandatory minimum penalties and the like, we have seen very little with respect to crime prevention. Indeed, both Bill C-37 and Bill C-350 can hardly be said to be preventative measures, an issue that I will address shortly.
I will excerpt further from the Criminal Code, which speaks of the purpose of sanctions, and I quote:
...just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
I realize that it is not the preferred practice for members to read excerpts from statutory text. However, it may well be necessary in this case to illustrate that the objective here, in the bill's own words, “increasing accountability of offenders”, or in the language of the Criminal Code, “promoting a sense of responsibility in offenders and acknowledgment of the harm done”, is the sixth and final objective in sentencing.
This is not to say that this objective is not worthwhile or that it ought not to be pursued. Rather, it is simply to note that it ought to be pursued alongside or together with the other objectives expressly mentioned in the code.
Again, while we have seen many pieces of government legislation that address accountability, we do not see any, for example, with respect to the objective of the rehabilitation of offenders. Despite the fact that the member for Stormont—Dundas—South Glengarry characterizes the legislation as dealing with rehabilitation, in fact it ignores the whole issue of rehabilitation.
This is where I believe the government's approach to criminal policy is particularly problematic. Conservatives propose, often in a piecemeal fashion, provisions pertaining solely to one objective, thereby missing an opportunity to develop a holistic and integrated approach to criminal law policy. That is, one that addresses not only what to do after the fact, after the offences occur, but no less important, why people commit crimes, and particularly how they can be prevented from committing those crimes—the whole with a view to protecting public safety and preventing the victimization to begin with.
We are all in favour of concern for and protecting the rights of victims but our objective must be to prevent the victimization and the crime to begin with.
In debates over Bill C-37 and Bill C-350, government speakers spoke of the deterrent objectives of these pieces of legislation. As I have noted in the House before, it is difficult to imagine that an offender who would otherwise commit an offence would somehow desist from doing so upon being informed of either a victim surcharge or a priority system of extinguishing debts once incarcerated. Addressing offenders after the fact ignores crime prevention as a necessary element of any criminal law policy. Moreover, doing so by financial measures alone does not assist with rehabilitation, an essential element of any criminal justice agenda.
Turning now to the specifics of the bill before us, Bill C-350 establishes that before an inmate can make use of any financial compensation gained as a result of a court proceeding against the Crown, certain groups must receive payment first. It thereby establishes a priority of debt repayment program. The first is paid to outstanding spousal or child support, followed by outstanding debt or restitution owed to the victim, such as for therapy or medical bills. Third is the debt owed to third parties who acted in good faith, followed by any victim surcharge imposed during sentencing. Subsequently, the priority is to debts owed by the offender as a result of any other court case, whether civil or criminal, and only after these conditions are satisfied may the offender receive the monetary award for use at his or her discretion.
The government has framed this legislation in terms of supporting victims, noting the need to fund restitution orders that courts may impose to address, for example, damage to, or loss or destruction of, a person's property or bodily or physiological harm to any person. Again, it must be reaffirmed that this is something that all parties support and stand behind, and was a central theme of my own tenure as minister of justice.
The problem here is that when it comes to the impecunious offender, courts have noted this concern in relation to restitution, such as the Ontario Court of Appeal in R. v. Scherer wherein the court found that:
It may be that in some cases it would be inappropriate and undesirable to make a compensation order in an amount that it is unrealistic to think the accused could ever discharge.
The reason for this is in part what the Manitoba Court of Appeal found in R. v. Siemens and again I quote:
The impact of a restitution order upon the chances of rehabilitation of the accused, either pro or con, is a factor to be considered....
A compensation order which would ruin the accused financially, thus impairing his chances of rehabilitation, should not be imposed....
As such, I am particularly concerned about the impact of the legislation on those who may be of limited financial means. Directing funds from an award may impact upon the rehabilitation of an offender. In this regard, discretion should have been built into the legislation before us. Moreover, in the cases of those with no means, it is unclear how this legislation would serve the purposes of offender accountability. Simply put, if someone cannot afford any of the fines levied, the legislation would not achieve its objectives.
Here and also in respect of Bill C-37, it is important to recall the words of the Supreme Court of Canada in R. v. Wu:
[I]t is irrational to imprison an offender who does not have the capacity to pay on the basis that imprisonment will force him or her to pay....
For the impecunious offenders...imprisonment in default of payment of a fine is not an alternative punishment—he or she does not have any real choice in the matter.
Again, as I noted in my generic critique of the government's justice agenda, not enough focus is being placed on prevention and tackling the underlying causes of crimes, chief among them being poverty.
In my limited time remaining I will briefly outline additional concerns with the legislation, many of which were raised in committee and might be raised in the other place. First is whether or not the bill is constitutional from a federalism perspective, and reference has been made to this by my NDP colleagues so I will refrain from enlarging on this point. Second, the bill does not address what happens to these payments in cases of wrongful conviction, an issue with which I was preoccupied as minister of justice and appreciate this concern. Third and finally, there is a concern that this legislation may deter inmates from taking action against the Crown when there are legitimate grounds to do so, such as in cases of prisoner abuse, because they would not be able to use the award as they see fit.
While the Liberal Party supports the intent of the bill, we feel that the bill and these concerns must be addressed further so as to achieve the objectives of the bill.