Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 31 - Evidence for March 7, 2013
OTTAWA, Thursday, March 7, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-37, An Act to amend the Criminal Code, met this day at 11:02 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning, and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
We are meeting today to continue our consideration of Bill C-37, An Act to amend the Criminal Code. This bill amends the Criminal Code to change the rules concerning victim surcharges. The main changes proposed by the bill are to double the victim surcharge amount, to remove the ``undue hardship'' exemption and to introduce the possibility of using the ``fine option program'' to pay a victim surcharge.
As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses on the website under ``Senate Committees.''
For today's meeting, I am pleased to introduce to the committee Heidi Illingworth, Executive Director of the Canadian Resource Centre for Victims of Crime; Catherine Latimer, Executive Director of the John Howard Society of Canada; and Jo-Anne Wemmers, a professor in the Department of Criminology at the Université de Montréal.
Ms. Illingworth will begin and then we will move down the line with opening statements.
Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime: The Canadian Resource Centre for Victims of Crime is pleased to appear before you this morning in support of Bill C-37, the increasing offenders' accountability for victims bill.
Since 1993, our centre has provided a voice for victims of crime and survivors of serious violence in Canada. We offer long-term support, information resources and advocacy to hundreds of victims and their family members each year.
The CRCVC did not arise out of a single event. We work on the front line with persons impacted by many different forms of crime and violence.
The purpose of the bill is to double the victim surcharge amounts and to make them mandatory for all offenders convicted of a criminal offence. I will not go into what exactly it amends as you have already highlighted that, but we strongly support Bill C-37 as written. Brought into being in 1989, the victim surcharge was created to help fund provincial and territorial victim services. Without making the victim fine surcharge mandatory, judges across Canada will continue waiving fine surcharges that they are supposed to levy against offenders, and services for victims will continue to suffer.
We know from research conducted by the Department of Justice that judges waive the fine consistently. In New Brunswick, in 2006 it was found the surcharge was waived in two thirds of 62,000 cases over five years, costing the province millions of dollars in lost revenue for victims. That report stated:
. . . it appears that mere assertions of an inability to pay by offenders or perceptions by judges that the offender cannot pay are sufficient to prove undue hardship . . . .
We know that victim services in New Brunswick, Ontario and the Northwest Territories have been impacted negatively as a result of judges waiving the fine. While judges are supposed to justify their decisions for waiving charges, the information was not included in 99 per cent of 861 court files that were reviewed for the DOJ study.
Making the fine surcharge mandatory means provincial programs to assist and support victims of crime will be more adequately funded. Our hope is that this will improve the services that are currently available to victims across the country, many of whom are understaffed and overworked. We should not see vital programs or services for victims closing their doors.
We believe that offenders should be held accountable to their victims and also held responsible for the harm they have caused. It is not unreasonable for offenders, especially those heading into the federal prison system where they will earn small wages, to have to pay 30 per cent of a fine, $100 in the event of a summary conviction or $200 upon indictable conviction.
We ask you to ensure that the surcharge is no longer waived by judges, who we feel are placing the interests of offenders above those of victims and survivors. Support services are vitally important for the resiliency of crime victims in Canada, and it is simply not acceptable that these programs suffer further cutbacks or closures.
Catherine Latimer, Executive Director, John Howard Society of Canada: It is a great pleasure to be before the Senate committee on this important bill.
Those of you may who may know about the John Howard Society know that we deliver services in 60 front-line offices across the country, many of which are dedicated to supporting victims through direct services, restorative justice, victim offender mediation. All the John Howards contribute to victim prevention by working with those at risk of offending or reoffending. We believe that our work helps to make communities safer.
I think we all share an interest in ensuring that there is adequate funding for victim services, but we have some reservations about Bill C-37 and its ability to do that. I want to highlight four components of our concern.
One is the undue financial hardship. That relates to removing the discretion of the judiciary to waive the surcharge where it would result in financial hardship. This could really lead to harsh consequences for the poor, the mentally ill and the marginalized. While it might be possible to participate in fine option programs, they are not universally available and many people, owing to senility, FASD or mental health issues, cannot complete or participate in fine option programs.
I should also point out that if a judge is looking to impose a fine, the fundamental principles of justice suggest that they must look at the ability of the person to pay and the availability of fine option programs before they are able to impose a monetary penalty for the person; but the surcharge program circumvents those particular safeguards and allows fines to be imposed on people who the judge may know at first instance are unable to pay for those.
The process would be that the fine would be imposed and the person, if they defaulted, would be subject to imprisonment. They would then need to reappear before a court and argue on the basis of a Supreme Court of Canada decision in R. v. Wu that it would be inappropriate for them to be imprisoned. This would take two appearances before crowded courts for the poor when one might have sufficed, and it subjects them to possible remand and custody.
I point out that many people may well refuse to pay the fine surcharge and find themselves in custody because they are unwilling to pay it. A newspaper article from May 2011 points to an Alberta man who refused to pay a victim fine surcharge for a public transit infraction. He was detained in the Edmonton Remand Centre and was killed. Many of these provincial facilities are crowded and dangerous places where you do not necessarily want people who are defaulting on minor fines to be contained.
The second major concern relates to the disproportionate nature of some of these penalties. A sentence is intended to reflect the proportionate penalty relative to the seriousness of the offence and the degree of responsibility of the offenders. Victim surcharges are regarded as additional penalties imposed on convicted offenders, and these add-on penalties may well make the initial penalty disproportionate to the seriousness of the offence. These fixed surcharges cannot be calibrated to the seriousness of the offence or the offender's ability to pay, and they will have a particularly harsh effect on the poor and marginalized.
We would also argue that this will actually fail to make offenders more accountable to their victims. Many programs, like restorative justice, succeed in making offenders more aware of the impact of their crimes on victims, help victims and lead to a reduction of recidivism. It is unlikely that a surcharge, per say, will make the offender more accountable to his victim. The surcharges are not linked to the degree of harm experienced by the victim. In fact, they are applied in victimless crimes where the offender self-harms by the offence, such as through drug use. The failure to link the surcharge to the circumstances of the victim will not serve to make the offender more accountable to his or her victim. It could likely build cynicism, which is the opposite of the stated policy intent.
The fourth concern we have is the questionable economics that may underpin these. I think we are all interested in a reliable source of funds for victim services, but it is hard to believe that the imposition of a surcharge or a tax on a largely poor and marginalized group will produce the funds required. A serious costing of this regime needs to be done.
The recently released report from the Corrections and Conditional Release statistics shows that there are about 250,000 convictions in a year. If an average fine surcharge of $150 is imposed, you are looking at a possible generation of revenues of about $40 million for victim services. Many, however, will not have the funds and will opt for fine option programs or serve time in lieu.
The John Howard Society runs fine option programs in some locations. There are costs involved with running such programs, and they do not generate revenue for victim services; they are alternatives to it, and their use will greatly reduce the potential revenues for victim services.
The same statistics report indicates that the per diem cost for federal corrections in 2010-11 was $313 a day. If only 10 per cent defaulted and spent five days in jail, the cost to the state would be about $40 million. This does not include the cost of the additional court appearance, which would also be borne by the state. The regime might well cost the taxpayers more than the surcharge could generate for victims services.
In conclusion, the John Howard Society of Canada strongly supports effective programs for victims and victim prevention and urges that there be a reliable source of funds for these programs. The committee might well want to look at a legislative amendment that allows the provinces to allocate a certain percentage for victim services. This might be more effective than the proposed victim surcharges and would avoid problems with disproportionate penalties and financial hardships. I would refer the committee to subsection 53(1) of the Youth Criminal Justice Act, where such a provision is included.
Increasing surcharges and making them mandatory will not achieve the policy objective of increasing accountability of offenders to victims. The amendments proposed in Bill C-37 will, however, have serious implications for the poorest and most marginalized facing criminal charges. Without an amendment allowing judicial discretion to waive victim surcharges when they would result in hardship, we can expect to see injustice and inhumanity flowing from the bill. More brain-injured, developmentally delayed, senile and mentally ill will default on surcharges and find themselves in increasingly crowded, dangerous provincial jails.
We urge the committee not to proceed with the bill; and if it does, we ask the committee to amend Bill C-37 to allow judicial discretion to exempt the offender from having to pay the surcharge where it would result in undue hardship.
Jo-Anne Wemmers, Professor, Department of Criminology, Université de Montréal, as an individual: Thank you for inviting me to come here today. It is my pleasure to speak to the Senate. As you know, I am a professor at L'école de criminologie at the Université de Montréal, where I teach victimology to graduate and undergraduate students.
Also perhaps interesting for today is that before I returned to Canada, I worked at the Ministry of Justice in the Netherlands for about 10 years as an expert in victim issues. While I was there, we addressed, among other things, what we called the victim tax, which is in effect the victim surcharge. At the end of the day, the Dutch government decided not to impose or introduce a victim tax for many of the reasons that I will present to you today.
Victim surcharges, since they were introduced back in the 1980s here in Canada, have had several problems. One is that they never brought in a lot of money to pay for victim services. I recall that when I first returned to Canada, to Quebec, victim services, which were funded entirely through victim surcharges, did not have enough money to buy office supplies, pencils, because there was a lack of funds for the program.
That situation changed when the province modified its legislation so that traffic violations, for example, could have a surcharge imposed on it, because that is where the fines really come in. That is where the money comes in. That is where you have people who can pay these types of charges.
Since then, there has been tremendous growth in victim services in Quebec over the last 10 years, and it is largely due to this provincial change rather than the federal surcharge. I think that is something to consider, the role that the provinces play in all of this. I saw from the records from yesterday that this was brought up as well, the question of where the provinces stand on this. I think that is something that needs further attention.
As much as the surcharge has brought in more money in Quebec at a provincial level, I can also say, being on the board of victims support in the area of Laval in Quebec, that one of the downsides is that it has made it really hard to manage victim services. From one year to the next, we do not know how much money will be coming in, which means we cannot plan long-term policy. We cannot say that in five years we want to be able to better serve this group because we do not know how much money we will have.
It leads to the strange situation that sometimes, at one level, we are sort of hoping that crime stays high because we will be able to maintain a certain level of funding, and that is a dysfunctional situation. There is a responsibility of the state here to ensure that victims are cared for, that victim services are present, and to allow for proper planning and management of services in order to meet the needs that are there. No doubt victims have important needs. These include support and also compensation as a form of reparation for victims. Victims, without a doubt, value accountability, which I understand is the subtitle of this bill: increasing offenders' accountability for victims.
This act would not see offenders compensating their victims but would have them pay money to the state. It is a tax, in effect, money paid to a symbolic victim, a faceless victim, but it does not bring the accountability of one offender to his or her victim and it does not provide the recognition to the individual victim that they seek from their offender. In that sense, it still stays very far away from reaching the goal of offender accountability.
Accountability is about holding offenders responsible to their victims, and reparation emphasizes that accountability. Why not then enhance possibilities for victims to receive reparation in the criminal justice process? Why not then facilitate ways for victims to obtain compensation from their offender rather than paying a certain fixed amount to the state in the hope that somehow that will trickle down to some victim somewhere in the country?
All the research suggests that reparation is important to victims. That is something that needs to be understood. Victims often do not receive reparation, so it is something we should look at in terms of how to enhance reparation. The research shows us that victims would rather have partial compensation from their offender rather than full compensation from a third party, such as the state or an insurance company, because in part it is recognition. It provides validation of the victim, and I think also validation from the offender.
Possibilities for reparation could be enhanced by increasing opportunities for victims and offenders to participate in restorative justice programs. These already exist across the country.
Possibilities for victim compensation could also be enhanced by including reparation to victims in the sentence, for example, using information from the victim impact statement to determine victims' needs for reparation and finding a way to include that in the sentence in payment of compensation. To my knowledge, that is not happening on a systematic basis right now.
Without having to change the law, there are ways we could enhance reparation possibilities for victims, holding offenders accountable to pay reparation to their victims.
There is also a future problem, which has been raised in several of the discussions that I have been reading on this topic: What will this cost? What will the price be in terms of the most vulnerable people within our society? Will people end up going to jail because they are unable to pay the fines?
When I read yesterday's discussions, I found it very unclear. Some people say no; other people say yes; and others say, well, maybe. If the risk is there, that is a real concern, particularly because it does not address the question of accountability and victims' needs in the most direct sense of the word. We should probably shy away from that.
If the problem is that judges are not imposing the victim surcharge, maybe they have good reasons for doing so, and that issue should be addressed. Perhaps there should be further research to find out if what we saw in New Brunswick is representative of what is happening in the other provinces and how to address the question of poor implementation of laws, thinking other laws will now suddenly change a reluctance among a group who are highly educated, professional, and, I assume, know what they are doing.
This leads me to my final point, which is something that Jan van Dijk, an international scholar in the area of victimology, once said in 1983, in a paper, when he referred to these types of measures as what he called ``victimogogy`` — not ``victimology'' — doing things thought to be beneficial to victims without any thought to the consequences for victims or for other parties. I think there is room for thought and further reflection to meet victims' needs in a more concrete way other than this bill that is now proposed.
The Chair: Thank you. We will begin the questions with Senator Jaffer.
Senator Jaffer: I want to thank all three of you for being here. I understand that you all work on behalf of victims in different capacities and for the benefit of victims.
Professor, you may have read about some of my angst concerning this bill. I want to be fair to what justice was saying. If I am not, I am sure my colleagues will correct me.
This bill removes the undue hardship consideration from a judge. However, in places where there is a fine option, which does not exist in every province, the person goes through that process, and if they are unable to pay, there is a waiver. I do not understand the difference between undue hardship and a waiver. To me, a waiver happens when you cannot pay. My preoccupation, especially when you read figures that there are more and more Aboriginal people in prison, is that more people will be sent to jail. I worked in the system and I know who goes to jail — people who cannot pay the fine.
Professor, I would like you to address the issue around the Wu case to start off. I think the surcharge affects the Wu case. How do you see it?
Ms. Wemmers: First of all, I am a professor in criminology, not a professor in law, so I am probably not the best one to quote all these legal cases.
I can say that we have to ask ourselves what we want to achieve with this. If it is about better meeting victims' needs, is this the way we will do it? If there is any concern about victimizing the most vulnerable population, so the secondary effects, perhaps we should explore other avenues to do that.
If you want something on the Wu case in particular, perhaps some of my legal colleagues can help.
Senator Jaffer: Ms. Latimer, I want to ask you a question on the issue of marginalization. You have first-hand experience; you work with grassroots. The concern is who will end up in jail with the surcharge. It will be the mentally challenged people, the marginalized and the poor. You mentioned it in your presentation. I would like you to expand on that thought.
Ms. Latimer: It is clear from the research that people who are impoverished are disproportionately involved in the criminal justice system. You already have a group that, for the most part, lacks certain resources.
To go back to your process issue around Wu, it strikes me as unnecessary and perhaps ill-conceived to first have a court order requiring people to make payment when the judge knows they are not going to be able to make payment. You are looking at people who may lack judgment, who may feel they are under a court order, so they are required to come up with this money, and that in itself can have negative social consequences. They could borrow the money from unlikely sources and do all kind kinds of things that would be antisocial in order to fulfill this court order. Chances are, however, that they will not be able to come up with the resources. Frankly, there are not enough fine option programs to cover the 250,000 people who are convicted every year who may or may not be able to cover this.
They will end up facing a judge and having to make a call as to whether they are able to pay it. There is discretion there. Many of them will end up in jail. Many of them will say, ``I do not want to pay something for the victim.'' This will be quite clear because many will, at that stage of the process, see the victim as the other. They would benefit from restorative justice and from a lot of other things that would bring them closer, but now they see the victim as the rationale that their penalty is being increased, and that is not necessarily conducive to their wanting to pay something. Some of them may just refuse and end up in jail.
[Translation]
Senator Dagenais: Thank you to our three witnesses. I am happy to see you again, Ms. Illingworth. We had the pleasure of working on the same board of directors.
My question goes to Ms. Latimer. I would put it to you that some offenders, perhaps even a majority of them, do have the means to pay the fines. When they get out of prison, they are probably going to have a car, a cell phone and cable, as I see it.
Given those observations, could the fines not be on a sliding scale depending on the offender's ability to pay, if offender is the right word?
[English]
Ms. Latimer: I have no problems with those who are able to pay to make reparations to the victims. I prefer what Ms. Wemmers was suggesting, that it would be better to do it through some sort of direct compensation related to the offender's victim.
My concern is for the vast majority who will be impoverished and will not have the resources. That is why I think you need some judicial discretion so they can sort through whether the people have capacity to pay or not. I would not even have difficulty necessarily with there being guidelines about what the fines should be, raising the fine and having some portion of the imposed fine, which would take into account the person's capacity to pay, dedicated specifically to victim services in the province. That is what we did on the youth justice side. It allows for a more secure source of funds without the additional unfairness to the possible offender and the additional cost to the state through defaults.
[Translation]
Senator Dagenais: We must not forget that the measure is actually intended to be a deterrent for the offender. Thank you for your answer.
[English]
Senator Baker: I want to congratulate the witnesses for their excellent presentations.
Ms. Latimer, the bill purports to amend section 737 of the Criminal Code. To my recollection, it only applies, as it says, to someone convicted or discharged under section 730 of an offence under this act or the Controlled Drugs and Substances Act. Is section 730 not the discharge section?
Ms. Latimer: Regrettably, I did not bring my Criminal Code. When I read it, it looked to me like it applied to all offences, basically to all convictions.
Senator Baker: It probably does, but the heading for section 730 is ``Absolute and Conditional Discharges'' and states:
730(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers . . . .
It would include persons convicted under this section and, in some way, either conditionally or absolutely discharged; and someone convicted under the Controlled Drugs and Substances Act. For offences under the Controlled Drugs and Substances Act, it would be rather difficult to figure out who the victim would be in some of these cases, would you not agree?
Ms. Latimer: I would absolutely agree. If it is trafficking, I think you could find some victims. However, if it is possession for personal use, then the person is really harming oneself.
Senator Baker: If it is for possession under section 4, it is still a summary conviction offence if it is less than 30 grams, say, of marijuana. It is still an offence under the Criminal Code.
Ms. Latimer: Yes.
Senator Baker: It is not for someone's personal use. Someone would be convicted for straight possession, say, of marijuana. It would be difficult to find out who the victim would be in that case if someone had 35 grams of marijuana, would you not think?
Ms. Latimer: Yes, I do.
Senator Baker: With the far-reaching broadness of this section of fines it would be difficult, would you not agree Ms. Wemmers. You could not identify a victim in a lot of these cases. Therefore, this is the alternate way of applying a fine that does not involve a victim except the person who is charged.
Ms. Wemmers: In terms of victimless crimes, you could have a debate about whether there really are victimless crimes. If there was no identifiable victim, you could easily say that in that case there would be a donation, for example to victim services, which is often already imposed, at least in Quebec.
Senator Baker: Yes, if a provincial law has been violated.
Ms. Wemmers: No, also for crimes.
Senator Baker: Under provincial law in Quebec?
Ms. Wemmers: For crimes.
Senator Baker: If someone cannot pay or, as Ms. Latimer has pointed out, refuses to pay — because that is the phrase used in the legislation, ``refuses to pay'' — a warrant is issued for that person's arrest. The warrant also specifies the jail term. That is in the legislation. I cannot see how that section of the Criminal Code for nonpayment of fines will not apply in this particular case. I know that after listening to and reviewing yesterday's testimony, you would come to the conclusion that it is unclear, but I think the legislation is pretty clear, is it not, Ms. Latimer? If someone refuses, what does ``refuse'' mean? ``Refuse'' means refuses. If you want to figure out what refuse means in law, it means ``to refuse.'' That is the simple Oxford English Dictionary meaning of ``refuse.'' ``Cannot pay'' is refusal to pay. If someone does not pay, a warrant is issued. The jail term is specified in the warrant; that is the legislation. Why would that not apply in the matters that are before us today?
Ms. Latimer: The way I read the provision is that if the person were to refuse to pay, then a warrant of committal or arrest would be issued. However, if the person had a reasonable excuse, which I think is what Wu is looking at, which is that they are unable to pay because they are impoverished or have a mental health condition or they were unable to complete their fine option program because they have a learning disability, the judge might have some discretion to say in this case that he or she will waive the committal to custody and waive the requirement that they pay the fine.
Senator Baker: Of course, in many cases the warrant is issued for his arrest prior to a hearing on it.
Ms. Latimer: Yes.
Senator Batters: Good morning and thank you to all of you for coming here this morning. I want to ask Ms. Illingworth a couple of questions.
First, in her presentation, Professor Wemmers referred to the victims that may be helped by this particular programming as symbolic, faceless victims. However, I think you said that you have seen the victim service programming that we have talked about today help real victims. Would you tell us about that and give us examples of the valuable victim services programming that you have seen throughout Canada?
Ms. Illingworth: My understanding of this legislation is that it is about raising money for victim services. That is what the problem has been, namely that in the study the Department of Justice looked at, judges are not asking offenders whether there is a difficulty to pay; they are simply waiving it in almost all cases. That is where we have a problem because, as we saw in New Brunswick — and people testified to this yesterday — perhaps $5 million was lost for victim services alone in that province.
An example here in Ottawa would be Ottawa Victim Services. They offer a number of programs and receive money through the province to run them. They used to offer a court accompaniment program, but that was recently cut due to a lack of funding. They lost a full-time staff person. They have 5 staff and 80 volunteers who go out to the community and respond to crimes. Sometimes there are referrals from other community agencies like the hospital, police and different services like mine. They offer some of the initial compensation programs that can be accessed in Ontario, for example the Victim Quick Response Program, so that if there is a homicide, victims can immediately access some funding for a funeral. There are immediate counselling support monies that can be accessed through that program. There are great programs like that all across the country. How they are run depends on the province. Some provinces have more police-based services.
Victims of serious crime and even victims of fraud can access these services and it is vitally important. From Department of Justice surveys about victim services in this country, we see that many victims are accessing supports, whether it is through women's shelters, regular victim services in the community or even court-based victim services. There are quite a number of important services out there.
Senator Batters: Professor Wemmers, you indicated at the beginning of your presentation that the surcharges did not bring in a lot of money. However, I think you then expanded on that comment to acknowledge that that has improved as provinces have added a substantial number of offences to the types of offences included with these victim surcharges. Would you acknowledge, then, that that is no longer the case, that is, that surcharges do bring in a substantial amount of money currently?
Ms. Wemmers: The big difference was that they were included for traffic violations. That is where you see offenders who can pay and where fines are typically imposed as well. In Canada, the most common sentence is probation and not fines, which you would have in Europe, for example. That was an important factor in this.
I still think that the limitations of the program are that at one point you hit a ceiling; that is, unless you think crime rates will go up and violations will go up in the future. No one is hoping for that, right? You hit a ceiling. The question still remains: Have we met victims' needs? Are there needs that are not being answered? How can we best respond to that?
Senator Batters: Were you indicating that it is difficult to project what the available amount of money for victim services programming might be in a given year? Would you acknowledge that you can look at averages and trends? It does not necessarily have to trend in a huge line upwards. Provinces are able to budget for that by looking at averages and trends.
Ms. Wemmers: Yes, but, as you said, you cannot grow. Less than 10 per cent of victims are reached by victim support services. If you compare that to the number of violent crimes committed in Quebec or in Canada, you know that a large number of people do not have access to resources. There are major needs. At the end of the day, where would you get the money to grow? Do you just ignore it?
For a while, that is what it was like in Quebec. No one wanted to say too loudly that the victims' needs were not being met because that would raise expectations that could not be met. Finally, that situation improved with the introduction of provincial surcharges, but we are back at that situation now because it has hit its limit. We have already been told that there is no room for growth in the foreseeable future, yet we know that there are vast needs for services and not all victims are getting what they need.
Victims have financial needs as well. There is need for reparation, et cetera. As well, the question of accountability remains on the table, and I do not see it being met by this bill.
Senator McIntyre: Thank you all for your presentations. We heard from you regarding the victim surcharge programs. I would like to hear more regarding the fine option adult program and the fine option youth program. Do you favour the fine option as opposed to the fine?
Ms. Latimer: The fine option is a way to prevent someone who is otherwise heading to jail for non-compliance to discharge their fine surcharge. A person would work in the community for 10 hours at a food bank or cleaning up parks, for example, and that would discharge the surcharge. It provides a service for the community and often provides assistance in needy areas of social services, but it does not provide revenues for victim services, so it does not actually meet what I think we would all like to see, which is a more secure and adequately funded vehicle for victim services.
Senator McIntyre: As I understand your evidence, we should do away with the fines and do away with the fine option program.
Ms. Latimer: Frankly, if you are looking at a regime that could cost the taxpayers $40 million to implement with the potential of gaining $40 million in revenues — and you will see a lot of slippage to get to that $40 million — it might be a better investment for taxpayers to put it directly into victim services rather than taking this circuitous route of a surcharge, which has all kinds of other legal problems with it. Yes, you would be better off making this a line item in a budget and having taxpayers' revenues go directly to victim services.
Senator McIntyre: Obviously, Ms. Illingworth, you are in disagreement with those comments.
Ms. Illingworth: We see the fine option program as something for those who really cannot pay. We believe that that is a small amount of what is happening now. Judges are waiving it without truly assessing whether the convicted person can pay the surcharge. For those who truly cannot pay, offering an option is good but, as Ms. Latimer said, none of that money would go toward victim services. It goes to the community in a service sense. As long as it is happening in a small number of cases, I think it is fine for the provinces that offer that to continue to do so.
Senator Frum: Ms. Wemmers, I was intrigued by your description of your experience on the Quebec victim services board. We understand that this legislation would require that all the surcharge funds collected go to victim services, but there is nothing in here that suggests that the services must be capped at the funds collected by the surcharge. I understood from what you said that all the funds that your organization received came exclusively from the surcharge. Given the level of collection to date, that is probably not the case. Do you know what the breakdown is in terms of your funding from the surcharge and your funding from the general revenues?
Ms. Wemmers: In Quebec all of the surcharges go to the Fonds d'aide aux victimes d'actes criminels. That money is used to finance the Centres d'aide aux victimes d'actes criminels. Some of it goes to other victim-based organizations like Plaidoyer-Victimes and the Association des familles de personnes assassinées ou disparues. Things like the Centres d'aide aux victimes d'actes criminels are fully paid by the surcharge in Quebec.
Senator Frum: We know that in the New Brunswick case those funds could potentially grow by two thirds once this becomes mandatory, which would be a good thing.
Ms. Wemmers: That depends. At the end of the day are we holding offenders accountable to their victims or are we simply imposing another tax on a group of people who are often in a disadvantaged situation to begin with? It is not evident to me that we have actually listened to what victims have been saying in terms of wanting to have accountability from their offenders; not from a tax imposed by the state on a group but from the person who actually committed the crime against them. I think we are drifting far away from that objective, unfortunately, with this bill.
Senator Frum: I suspect that victim organizations in Quebec would be delighted to see their revenues increase. I take your point that direct justice is more satisfying, but an increase to victim funding is probably also very satisfying.
Ms. Wemmers: It would be satisfying to see an increase in victim funding, but the government has a responsibility to ensure that it is systematic funding and not something dependent on the level of crime, which we hope will decrease rather than increase.
Senator Frum: I agree with you on that point. Are you aware of how that breakdown currently happens in your global funding in your province? I surmise that the victim surcharge is a percentage of your funding currently but not all of it.
Ms. Wemmers: The victim support services are fully funded from that.
Senator Frum: Exclusively?
Ms. Wemmers: Exclusively. All of the funding comes from the FAVAC which is managed by the Bureau d'aide aux victimes d'actes criminels within the Ministry of Justice.
Senator Frum: But it does not have to be?
Ms. Wemmers: I agree. In theory it could come from the state systematically, and that would be wonderful.
Senator Frum: It could be additional funds from the state?
Ms. Wemmers: Of course, and I encourage that.
The Chair: Ms. Wemmers, we hear about judicial discretion frequently. How do you feel about judges having discretion to ignore the Criminal Code, which appears to be the case if you look at the New Brunswick study? The requirement of the code when making an order to waive the surcharge is that the court shall state its reasons in the record of the proceedings. Clearly that is not occurring in the vast majority of cases. Do you have any comment with respect to that kind of judicial discretion?
Ms. Wemmers: I think it is a systemic problem. We can create laws but applying them is always a challenge. That is where we need systems in place to regularly evaluate, monitor and communicate back to the people applying the laws what exactly they are doing. We need checks and balances in the system.
I do not think the answer is to take discretion away. I do not think we can force them as such. There might be very good reasons for people to want to retain discretion. After all, these are people who are educated in the law and who know the people in front of them.
The Chair: Why do they not take the time to follow the letter of the law and outline those very good reasons?
Ms. Wemmers: This is not unique to this situation. It is a problem that we see across the board. It is one thing to introduce laws and another to enforce them. Unfortunately, this is something we often see with victims. Victims have rights that are not respected, and there are no consequences for not following up on that.
You have a good point in terms of why we are not respecting the law, and we have to look at that question. What are the obstacles? What are the reasons? How can we encourage that respect for the law?
The Chair: An issue I raised yesterday ties in with some of the conversation that we have heard today. When I was a provincial member, I was upset with respect to a deal in Ontario that was arranged between an accused, who was subsequently convicted of shooting into a crowd, and a woman who suffered a catastrophic injury as a result of the shooting. The accused, prior to trial, reached an arrangement with the victim to pay close to $3.5 million. I guess that fits in with what you would suggest is a victim-to-offender settlement that you would agree with. I do not agree with it. I think it coloured the whole court case; and I would describe it as ``blood money.''
Looking at the Ontario situation, based on the chart that we saw from New Brunswick, we see that in all those intervening years Ontario has missed out on something like $55 million to $60 million. The Criminal Injuries Compensation Board in Ontario is notorious for being a bureaucratic nightmare and does not have the funds to deal with catastrophic injuries, such as this one, whereas the state, as you said, should have that responsibility. I see this as addressing situations like the one that particular victim found herself in. This provides a funding mechanism to be able to deal with and handle those kinds of situations.
Perhaps both Ms. Illingworth and Ms. Wemmers could comment.
Ms. Wemmers: In terms of the blood money, I agree with you; and it is an issue that I discuss with my students. My stand on this is that crime is a violation of the human rights of the victim as well as an act against the state. Unfortunately, our Criminal Code currently sees it only as a violation against the state. That is where victims' rights have a lot of progress to make. I am encouraged to hear that there are discussions about enforceable rights for victims in Canada, but we have a long way to go.
I do not think a simple deal between the victim and the offender would be the solution; and I would never support that. We — the community, the state and society — have an interest in that as well. However, the victim also has a voice and is not simply a witness to a crime against the state. Therefore, their interest in terms of reparation should also be considered. Unfortunately, I do not see that happening here.
The Chair: Ms. Illingworth, do you have any comments?
Ms. Illingworth: I agree with most of what Ms. Wemmers said. We definitely have an issue in this country around proper reparation to victims. We know that not every province and territory offers a compensation program. When people are injured and harmed by violence, there are many associated financial costs. Even the programs we have do not adequately provide people with the support to recover and to normalize their lives to the way they once were.
I would love to see some sort of reparation directly from offenders to victims. I have seen that in France they often have partie civile attached to criminal cases. They often have restitution payments that an offender makes directly to a victim.
I feel strongly that the surcharge is important in helping to fund victim services, as well as all the provincial fines attached to speeding and running red lights and all of that. We need to generate the revenue for services. Hopefully, the amounts are not capped and we can see growth eventually, although that is a bit of wishful thinking right now.
Senator Fraser: My apologies to witnesses and colleagues for being late. I was in another unavoidable meeting. I try not to do this to people. I have been trying to catch up on your prepared statements. Thank you for providing them. It is helpful to someone who missed the testimony.
Ms. Latimer, on your financial hypotheses, I am struck by the observation that about 10 per cent default and spend five days in jail, et cetera. Yesterday, I asked the minister if he had any impact studies before bringing this bill forward and the answer was no. I find this very interesting. Was 10 per cent an arbitrary number you chose, or was it based on your observations of what might be a likely outcome?
Ms. Latimer: It was a modest estimate. It was simply a case of how modest we could get to offset the actual expected or possible revenues based on the number of convictions.
In the New Brunswick study, it looked like many people were being found by the judge either unable to pay or, for some reason, unwilling to pay. It would be very easy to find that the costs in administering the system were a greater burden to the taxpayer than actually setting up a direct contribution for victims that did not take you through the convoluted victim surcharge process, which has legal and efficacy problems in terms of gang revenues.
Senator Fraser: Ms. Wemmers, I believe you said that you have experience in the Netherlands, where they chose not to go this route. Why did they choose not to go this route?
Ms. Wemmers: At the end of the day they felt that justice had a responsibility toward victims, not just a tax imposed on the offenders. The government as a state had a responsibility in terms of solidarity and recognition of justice's role toward victims and that it should be expressed in having victims as a line in the budget. You could develop long-term policy on that, look at the needs and then grow accordingly. At the end of the day, it was decided that it would be something incorporated within justice's budgets as a constant post.
I am quite proud of the situation in the Netherlands. They have made tremendous growth. They offer one of the strongest examples of victims' rights in the Western World.
Senator Jaffer: Ms. Illingworth, you have appeared here before. I have always found your presentations very interesting. Would you tell us how difficult it is to access government funding for victim programs? I am not trying to put words in your mouth, but if I remember correctly, you have said that there are many forms to fill out and there is no long-term funding. Those are issues with the program.
Ms. Illingworth: Yes. We are a national not-for-profit agency and a little bit different. Although we are in Ottawa, we do not receive any funding from the provincial government because we offer our services in all provinces and territories. We survive through project grants from the Victims Fund. As well, Public Safety Canada provides a small amount of assistance in our funding. The Department of Justice recently offered a new sustaining funding stream, Time-Limited Operational Funding.
We were successful in our application for 2012-13, and in the next cycle, at $50,000 per year. That is nice because it is not project related and can go to operating the agency. Funding struggles continue for us. I am the only paid staff; and we benefit from students who come in from the different criminology and victimology programs locally.
Senator Jaffer: A previous question was asked about compensating the victim directly through the offender, that the surcharge should go directly to the victim. Could you expand? What do you think of that idea?
Ms. Illingworth: There is room for both. You can increase accountability by having an offender pay restitution directly to a victim, which we do not do often enough in this country. I might also add that when restitution orders are made, it is almost impossible for victims to have them fulfilled.
It costs additional money to enforce restitution orders. Also, it is equally important to have this surcharge that offenders have to pay that goes into funds, monies for all the provinces and territories to help operate their systems. Ultimately, I would love to see, as Professor Wemmers highlighted in regard to the Netherlands, our federal and provincial governments make victim services an important part of their justice budgets.
Senator Batters: Ms. Wemmers, your preference clearly is to have victim compensation programs as opposed to this sort of thing, but would you see a value in having victim services programming in conjunction with victim compensation programs as exist in some provinces — I am not sure about all provinces — that do have that? For example, in my home province of Saskatchewan, I know we have both.
Ms. Wemmers: Your question is not clear to me.
Senator Batters: Would you see the value of having victim services programming funded from these surcharges? Would you see the value of that in conjunction with victim compensation programming, if a particular jurisdiction had both operational?
Ms. Wemmers: My bottom line is victims' needs and whether they being met. They have need support; they have financial needs. They can have a need to participate, to have a status in the criminal justice system. The question is how to meet those needs.
Provincial compensation programs meet a need, but we also see that there are major problems with them. It can take months before victims finally see money. That is another issue.
In Quebec, where we have one of the most generous provincial compensation programs for victims, there are still major problems, in particular for the parents of murdered children, for example — big issues.
Are these different services? Are these responding to different needs? In part, they are. Are they important? Yes. Are they meeting all the needs that exist? No.
Senator Batters: You were talking about how the court process for victims can be a confusing and sometimes upsetting process. Would you acknowledge that victim services programs can help victims have more knowledge about that confusing, sometimes upsetting, process and help victims have a voice in that process?
Ms. Wemmers: For sure, victim support is a major development. In Quebec, for example, I am pleased to see that we have paid staff, whereas volunteers do the job elsewhere in Canada. It is important because it recognizes the importance of that type of work, that the need is there and to take it seriously. It is wonderful. Victims need this type of thing. The question is how to pay for it.
Senator Baker: To follow up on my last question, I was taken aback by this reference to section 730 of the Criminal Code. I know it is not new. The surcharge only applies to offences under the Criminal Code and the Controlled Drugs and Substances Act. It does not apply to any other federal act or federal legislation in which you could have victims. You are correct in that if anyone is convicted of an offence under those two acts, this charge will apply.
The bill goes on to say, ``or discharged under section 730.'' If someone receives an absolute discharge — in other words, the person is not convicted of a crime and there is no record of the court proceeding on his record — there is no record. It is usually given where the charge should not have been laid in the first place. Check your case law. How does it stand, then, that this person must pay a victim surcharge if he or she has been absolutely discharged? That is what this legislation says.
Ms. Latimer: You raise an interesting point. I thought it was interesting as well that they went out of their way to pick up discharges because a conviction is not registered if a person receives an absolute discharge. They have drafted it so that the people who had a discharge would be caught by it.
I agree with you. There may be some particular cases where you are seeing unfairness. We have real problems in the justice system right now with remand. More than half the people behind bars have not been found guilty.
Senator Baker: Seventy per cent.
Ms. Latimer: Yes. They have already spent a lot of time in jail; they come up for trial and the charges are suddenly dropped, and then they are hit with the surcharge. They have already lost a big chunk of their liberties and now they are hit with property.
Senator Baker: Ms. Latimer, I can understand the conditional discharge. Someone could have committed their first offence, but an absolute discharge?
My second question is this: We have been talking about judges not reporting their decisions, not even considering the surcharge. This all happens in a sentencing hearing separate from the trial. The trial has taken place and now the sentencing hearing is set for two weeks after the trial, usually, or a week after the trial. The Crown prepares its case for sentencing and the defence prepares its case. The Department of Justice, the Public Prosecution Service of Canada, a federal government agency, prepares its case. In the sentencing presentation they are the ones who outline to the court the sentence they propose: Here is the fine; here is the surcharge.
Would you not agree with me that perhaps the blame should not be laid at the feet of the judge? The judge is not required to draw everything out of the law. The Crown has a responsibility beyond just convicting people, of making the court aware, as the major servant of the court, that this in fact is in the legislation. Perhaps most of the blame here rests with the Crowns right across Canada. I can say that.
Ms. Latimer: I agree with the comment made earlier that you have two different challenges. You pass a law and then you try to get it implemented.
There are things that can help judges. There can be forms that they need to fill out when rendering the sentence and they could have a box associated with the surcharge: ``Did you impose the surcharge? If not, why not?'' They check a box and are done.
You need to make it very easy for judges, who are in busy, crowded courtrooms, with heavy dockets and lots of delays. They see a lot of people coming through. If you want them to do something specific, particularly if it requires writing something down, you need to make it very easy for them.
Who makes it easy for them? Court clerks and public servants who are trying to get certain pieces of legislation implemented can draft certain forms and try to entice judges that this might be useful to do. It is a challenge.
Senator Baker: It is a role for the Crown, the prosecution, during a sentencing hearing.
Ms. Latimer: If it is something for the public good, defence counsel are also officers of the court.
Senator Baker: You do not know what is in a proceeding until you actually read or listen to what happened in the proceeding. There is no record kept. We have minutes in the Senate. There are minutes and then the proceedings. There is no such thing as a detailed minute-taking with every single thing done in the courts. That would require an incredible amount of work. We cannot make the broad stroke saying the judges are just disobeying the law.
Senator Fraser: The longer I sit on this committee, the more I realize that I do not know anything at all. One of the things I really do not know much about at all is victim services. I do not know how, across the country, responsibility for different services is shared differentially as between provinces, that is, which provinces would cover a wide range of services and which would leave it all to the voluntary sector.
Before we even look at raising the amount of money needed, could you give me an indication of how that money is now raised, inadequate — I am not disputing that — though it is? How does it get parceled out as among provincial government services and volunteer services? I know you are a federal organization, but you are here and you know a lot about the topic.
Ms. Illingworth: Yes, and I am sure Ms. Wemmers could tell you how it is handed out in her province.
Most of them have the legislation around where the funds go. Here in Ontario, the Ministry of the Attorney General offers a number of victim services, court-based and community-based. In the community, in the major centres, they have agencies, such as Ottawa Victim Services and Victim Services Toronto, that provide emotional support.
Senator Fraser: Those are publicly funded agencies.
Ms. Illingworth: Yes. The Attorney General provides money to those agencies here in the City of Ottawa, for example, to provide emotional support, advocacy and safety planning and to go to court if necessary. There are also court-based services that do support work with people when their cases come to trial.
The community agencies, right now, have a number of staff that work in the agency, but they also have a large number of volunteers who are highly trained and who go out to do support with victims and help them with the various challenges that they face.
Each province uses their money differently. For example, in British Columbia, their services are police-based victim services. The staff working out of the different policing agencies in British Columbia offer services to victims. They do not have court-based services anymore, so I believe that the staff who are now working for the police will go to court with victims. They also use volunteers. I know that the RCMP across Canada offers victim services through volunteers.
Senator Fraser: All of which, one way or another, one assumes will be getting some of this money. One hopes so.
Ms. Illingworth: It would depend. The RCMP would probably not get any. I do not know the answer to that exactly. The provinces decide how they will run their victim services and how that money will be spent.
Senator Fraser: It varies. The chair says that the Ontario system is a famously horrible bureaucracy.
Ms. Illingworth: That is compensation.
Senator Fraser: Why would that be?
Ms. Illingworth: I believe the compensation fund in Ontario is funded separately, out of general revenues in the province.
Senator Fraser: This is victim compensation that you are talking about.
Ms. Illingworth: Yes. Different provinces might use the victim fine surcharge to help fund compensation programs, but not in Ontario.
Ontario has been trying to improve its response to applications. We are seeing about a year turnaround time from application to hearing. It used to be three years, so that it a big improvement. However, we still have problems around levels of funding and the speed with which people can access it.
I know that Quebec has just introduced changes to its compensation program, increasing funding that victims can access. How services are improved is really province by province.
Groups like ours are trying to voice what we hear directly from victims about the challenges they face. For example, a victim in Alberta might say, ``I am trying to access financial assistance, and they have said no to me for this and that reason.'' We will write to the different groups to explain how they can better meet the needs of victims.
Senator Fraser: Sounds like a monstrous bureaucracy everywhere.
Thank you very much.
The Chair: I do not want to get into a debate with Senator Baker with respect to judges' responsibilities, but there is a requirement in the Criminal Code. The judge is supposed to write the disposition on the charge sheet, and it does not seem like an onerous responsibility to me.
Senator Baker: You have the authority of the judge here, Mr. Chair, so I will not disagree.
The Chair: Witnesses, your testimony has been informative and helpful, and we appreciate your appearance before the committee. Thank you very much.
We are now going to adjourn, but I cannot advise you with respect to what we will be dealing with upon our return because it is a little bit up in the air. However, the clerk will be sending out information, as quickly as we can obtain it, with respect to what will be on the committee's agenda when we return. We certainly want to complete this bill, but we also have Bill C-53, which we think will be referred to the committee later today. That has priority.
Senator Baker: There is also Bill C-55 because, as you know, the decision of the Supreme Court of Canada gives us only until April 3 to pass that replacement section, 184.4, of the Criminal Code. That bill is in the House of Commons at second reading, as I understand it. It is before committee. Perhaps you could get in touch with the Minister of Justice. I know what you will say, ``Senator Baker, you get in touch with the opposition members to stop opposing its passage.'' However, we need a thorough hearing before this committee before April 3.
The Chair: There is a pre-study motion before the chamber that hopefully will be dealt with today.
There are those three possibilities that we will be dealing with when we return. Thank you all.
(The committee adjourned.)