Irwin Cotler

[Increasing Offenders' Accountability for Victims Act, December 11th, 2012]

Mr. Speaker, there is a pattern here: the imposition of mandatory minimums, which accompanies the removal of judicial discretion, increasingly suggesting a mistrust of the independence and integrity of the judiciary to be able to address these issues where they have the appreciation of the facts and circumstances in any particular case, where they can deal with the understanding of the offender, where they can address questions with respect to undue hardships and questions with regard to rehabilitation of the offender.

This leads me to the second concern. That is that the bill follows a pattern, again, of not addressing the complete spectrum of the criminal justice system, where that would include the whole importance of prevention, and not just the question of a punitive approach; where that would include the question of rehabilitation and reintegration of the offender, and again, not just a condemnatory approach; and where we would have, with respect to the process of dealing with these pieces of legislation—whether it be in the House or at committee, which is supposed to be the place to deal with this—the opportunity to propose amendments for the purpose of actually improving the bill as proposed by the government. However, they are summarily rejected, rather than being addressed, when their particular intention is to improve the very legislation brought forward by the government.

We have had situations where we have had a kind of bizarre anomaly where recommendations—and I was in that circumstance—that I made by way of amendment in committee were rejected in committee, only to be brought forward by the government afterwards on rethinking at report stage, and where the Speaker had to say at report stage that those things should have been addressed by committee, and therefore we had to go into the other place to correct this whole process and bring it back here to the House itself, when it could have been initially corrected at committee.

So the issue of process is inextricably bound up with the issue of substance.

[Increasing Offenders' Accountability for Victims Act, December 11th, 2012]

Mr. Speaker, I am pleased that my hon. colleague found only one thing wrong with my speech and made specific reference to the fine option programs in the provinces.

We did indicate that there were three provinces that do not have it, and under the present legislation we may have a situation where we cannot come up with an option in a province that does not have it.

That was the whole question of why I said to codify the principle of the Supreme Court in the Regina v. Wu case, to make it clear that nobody would ever be incarcerated because they could not pay a fine, because the fine option program might not have been available, so that which is said to be an assumption would be made clear in the law.

That is the reason I proposed the amendment, to clarify what could end up being an uncertainty, particularly as we have removed the judicial discretion in these cases, which might have addressed and redressed such an anomaly, if it indeed occurred.

[Increasing Offenders' Accountability for Victims Act, December 11th, 2012]

Mr. Speaker, I was present for the testimony of Dr. Irvin Waller. I thought it was an important piece of testimony before the committee. Dr. Waller went beyond the specifics of the surcharge issue to, in fact, recommend larger policy prescriptions. Those policy prescriptions were based on his own comparative studies in other jurisdictions, including, as the hon. member mentioned, that which exists in the United States, and he made particular reference to the importance of the use of the instrumentality of having corporate accountability involved in the indemnification of victim services.

I mentioned to Dr. Waller in the aftermath of his testimony that I would be meeting with him to further pursue this particular remedy and others that he suggested, as I took his testimony, as I say, to go beyond the specifics on the victim surcharge issue and to recommend broader policy proposals, which we should be bearing in mind.

[Increasing Offenders' Accountability for Victims Act, December 11th, 2012]

Mr. Speaker, I am pleased to rise to speak to Bill C-37 and the question of the victim surcharge. If passed, this legislation will double the amount of the federal victim surcharge and will also remove the possibility of judicial discretion to waive the surcharge in cases where it will result in undue hardship on an offender or on his or her dependants.

I will begin by reiterating that everyone in the House supports the funding of victim services. There is no debate on this issue of indemnification. The policy question is how best to do so and even a cursory analysis of Bill C-37 reflects a deeply flawed policy approach that will have prejudicial fallout, particularly for the most vulnerable of Canadians.

Before addressing my particular concerns over the policy behind this legislation, I will make a brief mention of alternatives. The premise of the government at first with respect to this bill was that victim services needed increased funding from the federal government. We on this side of the House do not disagree. We support the direct funding of such efforts through grant making and the like. The issue is that the question, “should more money go to this?” is not the question that is before us now.

Just last week, the House voted on budget Bill C-45. Canadians may be interested to know that this legislation does not use the word “victim” even once. This is perhaps unsurprising since the budget speech did not use the word “victim” once. My point here is not to suggest that the government does not fund victim services. The point is that if the objective were truly to ensure adequate funding for such services, it would seem that the budget would be the most logical place in which to show support for this notion and through which to disburse funds on a matter that the Conservatives consistently characterize as a priority.

Regrettably, the government has not chosen to make direct funding of victim services part of its budget legislation. Instead, it has proposed to increase funding through the doubling of the surcharge amount.

Yet, as was noted at second reading, and as was further elucidated in the witness testimony before the Standing Committee on Justice and Human Rights, the doubling is not based on adequate consultations with relevant stakeholders and, in particular, provincial attorneys general. Indeed, the government has not provided any evidence-based foundation that the doubling of the surcharge is sufficient to provide sustainable services for victims of crime in all provinces and territories, which would be something that we would all seek to see.

During our first committee meeting, I raised this concern with the Minister of Justice, noting that when I was minister of justice in 2005, the then attorney general of Manitoba had recommended that the surcharge amount be raised from 15% of any fine imposed to 20%, an increase of only 5%. Recall that the bill before us today would double the surcharge amount in all cases. While I am well aware that circumstances can be expected to have changed since 2005, as has the attorney general of Manitoba, it seemed more than appropriate to ask the minister what input he had received from his provincial counterparts in this regard.

The minister did not provide specifics regarding amounts and percentages but did state, in response to a similar question from a colleague:

Again, I believe this will be well received. These funds will go straight into provincial coffers, straight into the programs they have to assist victims of crime. My prediction is that this will be very well received.

Mr. Speaker, the minister's projections, to paraphrase him, are not an adequate consultation process.

Did he raise this issue with his provincial counterparts? When did he discuss it with the Quebec justice minister? When did he raise it with Nunavut's justice minister?

There is no need to be minister or clairvoyant to understand that these two jurisdictions have different needs. What did the provincial ministers want to know? How are these differences reflected in the bill?

Let us be clear. We know there are disparities. For the year 2006, the most recent year for which such statistics are available, the actual revenue produced by the federal surcharge varied drastically by region, with Quebec taking in approximately $2.2 million in surcharge revenue and Ontario taking in approximately $1.2 million. How do we account for this? How would this legislation take this into account? Indeed, I am returning to my primary question here: How was the determination made to double the surcharge? What was the evidence-based foundation for this?

On this point, I recently received an email from the former ombudsman for victims of crime, Mr. Steve Sullivan, who expressed concern to me with regard to the committee testimony at the Standing Committee on Justice and Human Rights of Ms. Susan O'Sullivan, the current Federal Ombudsman for Victims of Crime.

Mr. Sullivan was troubled by Ms. O’Sullivan’s contention that her recommendation to double the surcharge amount was itself based on the recommendation of her predecessor Mr. Sullivan. However, Mr. Sullivan stressed that in 2009, during his tenure as ombudsman, he in fact recommended no such thing. Although at the time he supported removing the undue hardship defence, he stressed that he “thought then, as I do now, that it was not appropriate to double fines if judges were waiving fines because of their belief...that offenders could not pay existing fines”. I only raise this to correct the record on behalf of Mr. Sullivan.

At the risk of repeating a recurring theme that I addressed during second reading, the question was raised as to when we would next be back in Parliament to raise the surcharge again. Will this be an annual parliamentary occurrence? Perhaps some provinces view the amount received currently as being sufficient. Without adequate consultation on this legislation, there is no good way to predict, which the minister said hew as prepared to do so, just how soon we will be back here debating it again and whether or not it is having a beneficial impact in the way the government so envisages.

Beyond the problematic approach to legislating without accounting for the different needs of individual provinces and territories, this legislation is seriously flawed in its presupposition that the surcharge ought to be the primary funding source in the interests of victims. Simply put, the surcharge is only imposed upon conviction. The result is that in situations where no suspect is apprehended or where no conviction is obtained because of problems with the evidence, no surcharge will ever be imposed.

There is an example I have mentioned before, but I believe it bears repeating. One of the most common crimes in our country, sexual assault, is one of the least likely to result in a conviction. Indeed, in many cases of sexual assault charges are not even pressed for a variety of reasons, including that these victims are not necessarily comfortable facing their attacker in open court. In these instances, no surcharge will be collected. How does the government propose to help these victims of crime through the mandatory collection of a surcharge if there may never be a conviction secured.

Even if there had been adequate consultation with all provinces and territories and even if this were reflected in the legislation, there would still be good reason to oppose the bill given that it removes the judicial discretion of judges to consider the undue hardship that imposing the surcharge may have on individual defenders or their dependents. Indeed, this aspect of the bill is particularly problematic and counterproductive.

As was observed in witness testimony before our committee by Catherine Latimer of the John Howard Society, this change would result in harsh financial consequences for the many marginalized members of our society: the poor, the mentally ill and low income Canadians, as well as minorities such as aboriginal Canadians, who are already grossly represented within the criminal justice system itself.

The problem is that serious consequences, including incarceration, can result in the failure to pay a court-ordered fine or surcharge. Indeed, the injustice and inequity of a mandatory financial penalty, absent judicial discretion to waive it based on an inability to pay, is not just a matter of my own opinion or the opinion of some Canadians. Indeed, it is the opinion of the Supreme Court of Canada, which stated in the case of R. v. Wu, “it is irrational to imprison an offender who does not have the capacity to pay [a fine] on the basis that imprisonment will force [payment]”. In that case, the court further stated, “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”.

This bill puts the most vulnerable Canadians in a situation where they may have to face incarceration, not because a court has deemed jail to be the proper punishment warranted by the offence for which they have been convicted, but only because they lack the financial resources to pay the mandatory surcharge. I submit that this is prejudicial and in violation of the law as defined by our nation's highest court.

Further anticipating the consequences of this bill if it were to be adopted, we can expect it to have a disparate impact on Canadians based on their province or territory of residence. Much was made during committee of the particulars of the provincial fine option program, to which I referred briefly earlier in my remarks. Regrettably, the discussion during committee regarding these programs was particularly insufficient and demonstrated a complete lack of understanding by the government in this matter.

The government has defended the removal of judicial discretion to waive the surcharge by arguing that those who are not able to pay can take advantage of provincial fine option programs that allow for the disposal of an individual's surcharge obligation through work or community service. However, as I am sure the members in this place are by now well aware, such programs do not exist in Ontario, British Columbia or Newfoundland and Labrador. Moreover, where they do exist, their availability and eligibility vary drastically.

I would hope that my colleagues in this place would need no explanation as to why I object to legislation that affects Canadians in a discriminatory manner based on where they happen to reside without any reasonable justification.

However, what is particularly troubling was the lack of concern by some of my colleagues during the committee process in this regard. Indeed, one member, noting that the fine option program was clearly a matter of provincial competency, conceded that this was not something the federal government could delve into and went on to observe that it was sufficient that any province could use the funds from the surcharge to implement such a program and that, where no such program exists, other means for enforcing the surcharge might exist.

This line of reasoning, regrettably, entirely misses the point. It is irresponsible for us to pass legislation based on predictions and presumptions about what could happen. Furthermore, the lack of consistency between the provinces and territories in this regard is precisely what would result in a differential prejudicial impact.

The bottom line is that, depending on the specific province or territory, low-income Canadians who are simply not able to meet a surcharge obligation will find themselves disproportionately burdened merely because of financial status and area of residence. Ultimately, one may find himself or herself subject to incarceration for circumstances entirely outside his or her control. I submit that this is prejudicial, inequitable and unacceptable in a free and democratic society.

To conclude my remarks, let me summarize the reasons for my opposition to this legislation.

First, the arbitrariness of the proposed doubling of the surcharge amount must be rejected. The needs of victims vary substantially, as I mentioned, between the provinces and territories.

Second, we must permit judicial discretion and enable judges to consider the specific facts before them, in particular, on the undue hardship that may result in specific instances on either the offender or on his or her dependants.

Third, there are problematic assumptions underlying the government's approach to criminal justice, which considers after-the-fact punitive measures to be an effective means of achieving deterrence, completely ignoring the importance of preventive measures and the need to consider the relationship in various complex social factors in so far as they contribute to both crime and victimization. Indeed, one critical factor that is undeniably related to the problem of crime and recidivism is a cycle of poverty and the marginalization of particular segments of our society. Regrettably, the bill, as it now stands before us, would only exacerbate this problem.

I would like to briefly describe the amendments that I offered at committee, all of which were proposed with the intention of achieving the shared goal of providing support for victims of crime in all provinces and territories and in an effective, sustainable and non-discriminatory fashion. Regrettably, all were rejected, but I believe they deserve discussion here particularly as they may be relevant to our colleagues in the other place during their deliberations in this matter.

My first amendment would have restored the undue hardship defence as it currently exists, but would have implemented a requirement that the court record its reasons for waiving the surcharge in writing. This amendment was directly aimed at improving the surcharge enforcement rate without improperly infringing on the judiciary's authority to consider all the facts before it in a particular instance.

My second amendment would have enabled the court in a jurisdiction where no fine option program existed to suspend the requirement to pay the surcharge based on a finding that the immediate enforcement of the surcharge would result in an undue hardship on the offender or his dependents. This amendment, in line with the Supreme Court decision, would have maintained the mandatory nature of the surcharge in all instances and merely would have enabled the court to suspend the requirement to pay. The surcharge obligation would indeed remain in the event that the individual's financial status should change. Moreover, this amendment would have limited the court's discretion to waive the surcharge to only those jurisdictions where no fine option program was available.

My third amendment would have specifically addressed what I submit should be one of the underlying purposes of criminal justice policy, namely, to prevent recidivism by achieving the rehabilitation of offenders. This amendment would have provided the court with authority to waive the surcharge only in those jurisdictions where no fine option program is available and based on a finding that the requirement to immediately pay would have a negative affect on an individual's rehabilitation. Again, the surcharge obligation would remain should an individual's circumstances change.

My final amendment was intended to codify the Supreme Court of Canada's decision in Regina v. Wu, so as to ensure that no Canadian would be subject to imprisonment based on an inability to pay. To be clear, this amendment would not have interfered with the court authority to order incarceration as part of an individual's sentence when so warranted by the specific facts of the case. This amendment would have ensured that neither an individual's financial situation nor the unavailability of a fine option program in a particular jurisdiction would result in incarceration. Put simply, this amendment would have avoided the prejudicial effect of Bill C-37 while preserving its underlying purpose. Despite the fact that this principle has been clarified by the Supreme Court, my amendment was voted down.

The committee process could have produced a version of this bill that accomplished the government's intention and what I am sure is the intention of all members in this place, to ensure the support of victims of crime without prejudicing any Canadians. Regrettably, we are here today to debate the same flawed version of this bill as was sent to committee. Thus, I must oppose the bill, as it is currently written, and urge all members in the House to do the same.

In conclusion, the most effective way to support victims of crime is to propose and promote legislation that prevents victimization in the first place, that seeks to achieve rehabilitation so as to prevent recidivism upon the inevitable return of offenders back into society. Regrettably, we have yet to see justice legislation from the government focusing on prevention, rehabilitation and reintegration, and Bill C-37 would accomplish no such thing. Despite my strong support for legislation that would fund victim services programs, this bill in its current form remains ineffective and will be counterproductive, discriminatory and prejudicial. I therefore will be voting against it.

[Human Rights, December 11th, 2012]

Mr. Speaker, yesterday, on the occasion of International Human Rights Day, I had the privilege of giving out the Queen's Diamond Jubilee Medals at a ceremony in my riding that also expressed solidarity with human rights heroes around the world.

These heroes include: Malala Yousafzai, whose advocacy for equal rights has inspired us all; Maria Lourdes Afiuni, Venezuelan judge detained for exercising her judicial independence; Eskinder Nega, Ethiopian journalist imprisoned for critiquing the Ethiopian government; Nasrin Sotoudeh, imprisoned Iranian lawyer who, together with the imprisoned Baha'i, symbolize the struggle for human rights in Iran; Liu Xiaobo, Chinese Nobel Peace Prize laureate, imprisoned for exercising his free speech; and Sergei Magnitsky, the Russian lawyer tortured and murdered in detention for exposing the culture of corruption in Russia, whose colleague, Bill Browder, is in Ottawa today as part of the mission to bring those responsible to justice.

I ask all members to join in an expression of solidarity with these courageous individuals on the front lines of the struggle for human rights and justice in the world today.

[Income Tax Act, December 7th, 2012]

Mr. Speaker, I rise on a point of order. I seek the consent of the House for the following motion, which is particularly timely: That, in the opinion of the House, the government should designate the December 10 each year as national speak no evil day, where parliamentarians and citizens are called upon to partake in a day for the promotion of mutual respect and public civility, deploring (a) the increasing incidents and intensity of assault of an abusive speech in parliamentary discourse and debate and (b) the decline in civility and the corruption of public discourse.

[Mount Royal, December 7th, 2012]

Mr. Speaker, I recently participated in a series of important events in my multicultural riding, Mount Royal, including the 32nd anniversary of the Federation of Filipino Canadian Associations of Quebec, the 50th anniversary of FAMAS, the 50th anniversary of the Jamaica Association of Montreal, the 40th anniversary of the Côte-des-Neiges Black Community Association, and the 20th anniversary of the Mountain Sights Community Centre.

There is also the inspiring Leonard Cohen concert benefiting the 100th anniversary of the Herzl Family Practice Centre at l'Hôpital général juif.

Monday, December 10 is la Journée internationale des droits de la personne. Leaders of these organizations will join emergency responders, veterans, educators, physicians and religious, cultural and other community leaders as recipients of the Queen Elizabeth II Diamond Jubilee Medal in a celebratory occasion in my riding honouring those who have bettered the human condition and touched the lives of so many, in my riding and beyond.

Congratulations to everyone.

[Justice, November 28th, 2012]

Mr. Speaker, while we were debating Bill C-10, the former Quebec justice minister, the National Assembly of Quebec and experts in Quebec all agreed that this legislation violates human rights, undermines the rule of law and flies in the face of Quebec's values on justice.

When will the federal government respect Quebec, its values, judicial independence, evidence and the rule of law?

[Justice, November 28th, 2012]

Mr. Speaker, the Barreau du Québec is challenging the constitutionality of the omnibus Bill C-10, which has been criticized by lawyers who maintain that mandatory minimum sentences are ineffective, pointless and discriminatory. Furthermore, our courts have found that these sentences are unconstitutional.

When will the government respect our lawyers, judges and experts and abandon this misguided, discredited and unfair approach?

[Questions Passed as Orders for Returns, November 27th, 2012]

With respect to Iran: (a) what criteria does the government use when deciding whether to suspend diplomatic relations with a foreign government; (b) in what way did the government of Iran meet these criteria; (c) who did the government consult in making this decision; (d) what documents did the government consult in making this decision; (e) when was the final decision made; (f) when was the decision-making process initiated; (g) who participated in making this decision; (h) has the government encouraged the governments of other countries to suspend diplomatic relations with Iran and, if so, which ones; (i) what arrangements have been made to serve or assist Canadians who remain in Iran, or who will be in Iran in the future, (i) as residents, (ii) as visitors, (iii) as prisoners; (j) what arrangements have been made to serve or assist Iranians or Iranian-Canadians residing in Canada either permanently or temporarily; (k) what steps does the government take to determine whether an entity will be listed as a terrorist entity and which, if any, of these steps have been taken with respect to the Iranian Revolutionary Guard Corps; (l) if any such steps have been taken, what is the timeline for the completion of the process; and (m) who is involved in making the determination of whether the Iranian Revolutionary Guard Corps will be listed as a terrorist entity?