Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 31 - Evidence for March 6, 2013
OTTAWA, Wednesday, March 6, 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 4:21 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon 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 begin our consideration of Bill C-37, An Act to amend the Criminal Code, dealing with victim surcharges. 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 witness on the website under ``Senate committees.''
To begin our deliberations we are pleased to welcome back before the committee the Honourable Robert Nicholson, Minister of Justice and Attorney General of Canada. He is accompanied here today by senior officials from the Department of Justice Canada: Carole Morency, Acting Director General and Senior General Counsel, Criminal Law Policy Section; and Pamela Arnott, Director and Senior Counsel, Policy Centre for Victim Issues.
Minister Nicholson, the floor is yours.
Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much, senator. I am pleased to be here today to speak about Bill C-37, the Increasing Offenders' Accountability for Victims Bill.
The bill seeks to make offenders more accountable to victims by doubling the victim surcharge and making its payment by offenders mandatory in all cases.
As this committee will know, a victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing. It is collected and retained by the provincial and territorial governments and used to help fund victims' programs, services and assistance to victims of crime in the province or territory where the crime occurred.
Currently the Criminal Code provides that the victim surcharge must be imposed by a sentencing court but can be waived if the offender can prove that its imposition would cause undue hardship. However, we know that the surcharge is not applied in all appropriate cases and that it is waived irrespective of the absence of such hardship.
This bill proposes three changes to the victim surcharge provisions in the Criminal Code. The first change would be to double the amount of the victim surcharge that an offender must pay. Second, the victim surcharge would be imposed in all cases without exception. Third, offenders who are unable to pay the victim surcharge would be able to participate in the provincial or territorial option programs to discharge the amount owing.
Let me address each one of these proposals in turn.
The proposed doubling of the amount of the victim surcharge would be the first increase since the year 2000. The new proposed surcharge would be 30 per cent of any fine imposed on the offender. Where no fine is imposed, the surcharge would be $100 for an offence punishable on summary conviction and $200 for offences punishable by indictment. The judge would retain the discretion to increase the surcharge where the circumstances warrant and the offender has the ability to pay the higher amount.
In order to ensure that offenders are accountable to victims for the harm they have done, the victim surcharge must be a meaningful amount that will promote responsibility for their actions.
Questions have been raised about how the victim surcharge is used and how we can be certain that the amounts collected will benefit victims. To be clear, section 737(7) of the Criminal Code directs that the victim surcharge will be used for assistance to victims of crime as directed by the province or territory where the surcharge is imposed.
The second proposed change by this bill is to remove the discretion to waive the victim surcharge in order to ensure that the surcharge is applied automatically. Research conducted by the Department of Justice published in 2006 shows that the surcharge was waived in two thirds of cases over a five-year period. Remarkably, the surcharge was waived in 84 per cent of the cases involving summary conviction and 91 per cent of cases involving indictable offences where the offender received a sentence of imprisonment. The surcharge was waived 25 per cent of the time in cases where offenders were sentenced to pay a fine.
The research suggests that the noticeably higher waiver rate for offenders receiving custodial sentences is due to a ``blanket'' waiver policy for offenders who are sentenced to imprisonment as opposed to proof of hardship. Furthermore, in 99 per cent of the cases where the surcharge was waived, reasons for the waiver were not provided by the court, notwithstanding a requirement by the Criminal Code to do so, and no documentation was found showing that the offender had demonstrated that paying the surcharge would cause undue hardship. This is not acceptable and this is why we are making the victim surcharge mandatory.
The third proposed amendment would allow those offenders who are unable to pay the mandatory victim surcharge to participate in provincial or territorial fine option programs to discharge the amount owing.
Under the current victim surcharge regime, offenders who are not able to pay the victim surcharge are simply exempted from the payment.
[Translation]
This work is to ensure that offenders are accountable to victims of crime.
[English]
This is in line with the philosophy of the victim surcharge which seeks to make offenders accountable to victims of crime.
The fine option program within each province or territory determines the rate at which credits are earned for the work performed by the offender. For example, if the provincial or territorial fine option program determines that an hour's work equals approximately $10, the offender would then need to do approximately 10 hours of work to pay a $100 surcharge or 20 hours to pay a $200 surcharge penalty.
Some have suggested that removing the option of waiving the victim surcharge would cause undue hardship and could result in imprisonment for those who are unable to pay the surcharge. This is simply not true.
The Criminal Code states that a warrant of committal should not be issued for the non-payment of a fine unless the offender has refused to pay the fine without reasonable excuse. The Supreme Court of Canada, in R. v. Wu in 2003 has held that a genuine inability to pay is a reasonable excuse. Instead, if the offender does not have the means to pay a fine immediately, the offender should be given reasonable time to pay.
Fine option programs exist in seven of the provinces. Therefore, in the majority of cases, offenders who are unable to pay the victim surcharge would be able to avail themselves of a fine option program to discharge the amount owing.
Fine option programs, as such, are not offered in Ontario, British Columbia and Newfoundland and Labrador. However, all three of those provinces offer alternative mechanisms for offenders who are unable to pay a fine in full at the time of its imposition.
All these mechanisms would be available to offenders who are unable to pay the surcharge. As well, mechanisms, such as licence suspension or revocation, are available in those three provinces to encourage offenders to pay.
I should also note that any sentencing court in Canada may order a payment plan or an extension of time to pay for an offender who is ordered to pay a surcharge. This has always been the case and would not be changed by Bill C-37.
[Translation]
We all understand that victims of crime deserve our support. I hope we can continue to work together to ensure that the bill is passed quickly.
[English]
Victims of crime deserve all the help we can give them. I certainly hope that this bill receives expeditious passage in the Senate.
The Chair: Thank you, minister. We will begin questions with our deputy chair, Senator Fraser.
Senator Fraser: Thank you for being here, minister. Have you done any impact studies on this bill? Do you have a sense of how much money will be raised? How many people will be unable to pay and, therefore, will have to go to work programs where they exist?
Mr. Nicholson: I do not have a study on that, senator. I have discussed this with my provincial and territorial counterparts and indicated that we are moving forward on this. I had a number of questions, of course, concerning the funding of victims of crime programs. I indicated to them that any changes we would bring forward would be consistent with that. A good analysis was done by the Department of Justice in 2006 with respect to how and where it was implemented and when it was not implemented. That may be of interest to you.
Senator Fraser: Will there be extra costs for the provinces in administering what will be a compulsory one-size-fits- all bill?
Mr. Nicholson: I can tell you that the provinces, in general, were enthusiastic about receiving more money for victims of crime services. As you know, there is a continued push consistent with the government's emphasis on victims to provide funding for victims services. Every single cent of this will go to the provinces in question. This is why I believe that we have their support.
Senator Frum: Minister, can you tell us if the Federal Ombudsman for Victims of Crime supports this bill?
Mr. Nicholson: Yes. I will let her speak for herself, of course, but it is my expectation, certainly with the reports that she has made in the past and the comments that she has made, that this is something that she has been enthusiastically supportive of.
In my discussions with victims groups across Canada and reports that she has filed, this will be well received by the victims and those who stand up for victims in this country.
Senator Frum: There is an understanding that some provinces and territories are better than others at providing services for victims of crime. Do you think this will do anything to help equalize the kinds of services available?
Mr. Nicholson: Certainly, I would not grade provinces as to how and what they do. We all have a stake in this. When you are in discussion with your provincial or territorial counterparts, funding is always an issue. The assurance, as I indicated to Senator Fraser, is that we would be very careful in any bill that we legislated that all of the money would go to all of the provincial or territorial governments for victims of crime services; and that was well received.
Senator Baker: I would like to thank the minister for his presentation. In each province there is such legislation. The Eastern provinces have their Victims of Crime Services Acts under which a penalty is imposed if an offence is committed under an act of the province on the same grading as that in federal legislation. For example, in Newfoundland, section 11.1(1) of the Victims of Crime Services Act allows for a victim fine surcharge of 15 per cent of the fine imposed, which is similar to the federal standard. You propose to change it to 30 per cent. Has there been consultation with the provinces? Has there been any indication whether they will increase their surcharges accordingly?
Mr. Nicholson: Is that for provincial offences?
Senator Baker: Yes.
Mr. Nicholson: I did not directly raise that matter with my provincial colleagues. I indicated that within the federal jurisdiction with respect to the Criminal Code we would be taking steps along those lines, without getting into the details as to exactly what we were going to do. I did not turn around and ask what they would do with respect to provincial offences; and they are in the best position to decide whether that is a good idea.
Senator Baker: Section 737(4) of the Criminal Code states that the lieutenant governor in council in each province shall establish the time of the payment of any surcharge where no fine is imposed. Minister, would either you or your officials know whether there is any evidence to show what the time periods are? Are they at variance? Is it 30 days after the conviction? Would anyone have information in that regard? In Newfoundland, it is 30 days.
Mr. Nicholson: I do not know whether the officials have any comment on that. My understanding is that it varies in different cases. I remember court cases in the province of Ontario where many times they expected you to pay it within 30 days. Even as a lawyer, I made representations for whatever reason that it could be extended to 90 days; so there was flexibility. That was in the province of Ontario.
Ms. Arnott?
Pamela Arnott, Director and Senior Counsel, Policy Centre for Victim Issues, Department of Justice Canada: As you mentioned, each province and territory provides their own legislation or regulations for the enforcement of those amounts. Each will provide that period. Whether it is 30 days or 90 days is discreet to each province and territory.
[Translation]
Senator Dagenais: Thank you, minister, for being here today. Will it be possible to seize the offender's belongings if the offender is unable to pay the fine?
[English]
Mr. Nicholson: Each province has slight variations on this. For your interest and edification, you might want to look at what each province does with respect to alternatives. I have reviewed a number of them. One example is that people can do community service, which can be a credit. Some have license suspensions if a person completely refuses to pay. Others have options of extending the time. There is a bit of variance within the provinces. It might be of interest to you to have a look at those because there is a bit of variation across the country.
Senator Jaffer: Minister, my concern is that I see this bill as removing judges' discretion. Would this reduce the fundamental principles of justice in terms of allowing judges to tailor penalties to individual offenders and offences?
Mr. Nicholson: We have had a victim surcharge within the Criminal Code; this is not a new concept. It is our responsibility as legislators to give guidance to the court. We do not presume to say whether an individual is guilty or innocent; that, of course, is for the courts to determine. We set guidelines in these matters. We are saying what we want to do to better protect victims or to provide funding for victim services in each province and territory. I believe these are reasonable amounts. It has not been increased since 2000, so it is time we looked at it.
Senator Jaffer: Minister, I do not have an issue with the amount being increased. The challenge I have is tying the hands of judges by saying they cannot consider undue hardship. You do not give a judge a choice.
Mr. Nicholson: The existing provisions in each province take into consideration individuals who, for whatever reason, have found this to be impossible or who have undue hardship. There are provisions that I indicated are being administered by the provinces. Ultimately, of course, much of the funding comes from a surcharge on the fine, so it is up to the judge to decide what the fine is. We are saying that there will be a surcharge in addition to that fine.
Senator Batters: Thank you for being here, minister. I was very pleased to see this bill come before us because in my experience with the Ministry of Justice in Saskatchewan, we saw this surcharge being waived much too often. The hard-working people in Saskatchewan's Ministry of Justice run excellent victim services programming.
Could you tell us what these collected funds would be used for and give us examples of the types of programs you see across Canada for these types of victims funds?
Mr. Nicholson: Thank you very much for that question. Some uses include victim notification of offender release, compensation programs for the victims of the crime themselves, and referrals for counselling to assist them, which is sometimes even assistance in preparing victim impact statements, for instance.
I noticed in my review of what was done that that there was a wide range. You are correct that your home province of Saskatchewan does have excellent services covering a wide range of the needs of victims.
While it varies from province to province, we can say with some assurance that the money is going in the right direction to better assist in various aspects of being a victim, whether it is preparing a victim statement, getting counselling or putting in place processes by which victims get notified to make their life as easy as possible after the traumatic experience they have gone through. Those areas are where these funds are going.
Again, I think I will make the prediction that when this bill becomes the law of this country, as I hope it soon will be, it will be well received by our counterparts.
Senator Joyal: Mr. Minister, in relation to the Aboriginal peoples who are sentenced, under that bill would they be still benefiting from the Gladue principle that the Supreme Court has established, or would that apply regardless of Gladue?
Mr. Nicholson: Without going into the details of that, this is of general application and applies to all individuals convicted of a criminal offence in this country. As might be expected, our provincial counterparts, in administering these programs, set out and modify the processes and methods by which these funds will be collected are modified. Again, they will have a look at that.
Senator White: Thank you very much for being here today, minister. I heard commentary around collection in relation to some provinces that may be able to withhold renewal of driver's licences and things like that. Is there also an opportunity for provinces to apply under the income tax rebates at year end for payments where they fail to pay on victim surcharges? I did not look for it; I am just trying to find different ways to get the money from some of these folks.
Mr. Nicholson: Good question. Is there an answer?
Ms. Arnott: Yes, senator, the Canada Revenue Agency has a set-off program. There is a longer title, but that is our short form. A number of provinces have concluded an agreement with the CRA to use that, Saskatchewan being one of them.
Senator White: That is an option.
Ms. Arnott: Yes, it is.
[Translation]
Senator Rivest: Is the compensation that is provided to people taxable by Revenue Canada? Is the compensation provided to victims taxable? Is it considered as income?
[English]
Mr. Nicholson: Are you asking if it is refundable?
Senator Rivest: Is it taxable? Is it revenue for the CRA?
Mr. Nicholson: The victim surcharge is paid to the fund, of course.
Are you asking me if somebody received assistance, for instance, to travel? My inclination would be to say, no, it would not be taxable, but we will certainly look into that for you.
The Chair: Thank you, members and minister. That is your schedule, right on the dot, and we appreciate your appearance here today.
Mr. Nicholson: Thank you very much. I only wish we could have done two bills today, but you cannot have everything.
The Chair: We will continue our deliberations with the officials. I assume Senator Fraser has some questions for the officials, and she has the floor.
Senator Fraser: I want to come back to this business about costs versus revenue for the provinces. You can correct me if I am wrong, but it is my understanding that all the money from the surcharge is supposed to go to victims' services. I think in Ontario, at least, it goes into general revenue, but it is presumably earmarked in some way for victims' services. Will they be able to divert any of that money to cover what I assume will be increased administrative costs? They will have a lot more people having to pay fines, which I assume means not only more record keeping but more tracking down people who have not gotten around to paying by the deadline, and arrangements such as the interesting one that Senator White outlined that might be simple and straightforward but still has to be administered. These will be costs for the provinces, and the provinces are mostly in worse financial shape than we are. Can they use any of the money from the surcharge to compensate for those costs?
Ms. Arnott: The Criminal Code provision provides that the funds have to be used for providing assistance to victims. Whether that goes to services or to compensation, it has to fit within that broad heading of ``providing assistance.''
Senator Fraser: Therefore, it cannot go to administration at all.
Ms. Arnott: It cannot go to the costs of a program that would benefit offenders.
Senator Fraser: The minister said he did not have any impact studies, but have you any indications at all of the proportions of people who seem likely to be put into work programs to pay off their fine rather than owning up the money? We know that a very high proportion of the people, at least who are imprisoned, are very poor. They do not have any money. Do you have anything at all to give us an indication of how you think this will play out?
Ms. Arnott: As the minister said, we do not have impact studies. We do have an indication of what the total amount could have been if it had been imposed. You will find that in the New Brunswick study, which the Library of Parliament has included in the materials for the committee.
Senator Fraser: Could you say for the record how much we are talking about?
Ms. Arnott: In looking at the New Brunswick study, which looked at five years from 2000 to 2005, the maximum possible that could have been imposed was $4.6 million. The actual amount imposed was $1.5 million and the actual amount collected was $1.2 million. That tells us there was a small amount imposed, but once it was imposed, a high percentage of it was collected.
Senator Fraser: You would have to be inside the mind of all the judges to know whether, in imposing a surcharge or not, they were basing it in part on ability to pay, because it was noted that they do not often give reasons.
Senator McIntyre: One of the main changes proposed by Bill C-37 is that the amount of the victim surcharge is doubled. I do not have a problem with the victim surcharge as it relates to summary conviction offences; as a matter of fact, I find that the amount is reasonable and could even be perhaps lesser.
However, I have to admit that I have a concern as it relates to indictable offences. As we know, indictable offences are more serious than summary conviction offences, especially in the case of someone who has committed a very serious offence, such as assault causing bodily harm with a weapon. I find that $200 may not be sufficient. Has the department decided to do a cut-off at $200? How did you arrive at the $200 figure?
Ms. Arnott: The Criminal Code includes a provision that the amount of the surcharge can be increased if the court believes it is appropriate and if they believe that the offender has the ability to pay. That is currently in the Criminal Code surcharge provisions, and this bill will not change that at all.
In regard to the actual amounts, that is a bit of a balancing act.
When the original surcharge provision was created, there were provisions that the amount could change. It could be set by regulation and could change. We had suggestions from provinces and territories that it be set to inflation, but in looking at all of those options, the information we had from stakeholders was that it was easier for the administration of justice if the amount was set. That was part of the reason we arrived at those very clear figures.
Senator Joyal: In that context, did you have representation from the provinces, at your regular meeting with the provincial and territorial Ministers of Justice, in relation to the non-payment of those surcharges?
Ms. Arnott: The topic of the surcharge has been discussed with provinces and territories in our working group meetings as far back as 2000. The topic has been discussed on a number of angles, including the amounts, as I said, and the use of fine option programs.
Senator Joyal: Was it the request of the provinces that the discretion that was allowed to the judges be abolished or deleted from the system?
Ms. Arnott: No, it was not the decision of the provinces.
Senator Joyal: You did not introduce that section into the bill on the basis of provincial representation?
Ms. Arnott: No.
Senator Joyal: You will know the Supreme Court decision in the Wu case in 2003. I am sure you have the case in front of you. On page 532 of the decision, at the top of the page, on the left-hand side in the English version, at the end of the first paragraph, it states —
Ms. Arnott: Would you mind giving me the paragraph?
Senator Joyal: Page 532. It is in the majority decision of the eight judges. There was only one dissenting judge in the case, Justice Deschamps. It states the following:
Where the offender's reasonable excuse for failure to pay a fine is simple poverty, it is not open to a court to jail him or her under section 734.1(1) (b)(i). Here a functioning fine option program was not available in Ontario, and there was no evidence as to what, if any, federal permits or licenses were held by the accused.
When you are faced with such a case in which there is no licence or anything you can use as pressure on the person and the person happens to simply be a poor person, would this bill allow a judge to jail that person because he or she cannot pay a surcharge?
Ms. Arnott: No. This bill does not impact section 734.7 of the Code, which indicates that a warrant of committal can only be issued if a fine option program is not appropriate, so if none exist in the jurisdiction.
Senator Joyal: The minister mentioned Ontario, B.C., Newfoundland and Labrador. In those three provinces?
Ms. Arnott: That is correct. The second part is: ``. . . or if the offender has refused, without reasonable excuse, to pay the fine'' or, in this case, the surcharge. It requires the two things on the part of the offender — a refusal without reasonable excuse.
Senator Joyal: It means that a person who lives on social assistance benefits, has no fixed domicile, is somebody more or less living on the street and has been accused of shoplifting or something like that could be the object of a surcharge.
Ms. Arnott: They could be the object of a surcharge, but they would not —
Senator Joyal: What would we do with such a person?
Ms. Arnott: They would not be imprisoned for not being able to pay the surcharge. That is quite clear; we have looked at the case law. They have identified exactly that as one of the examples. Someone who was homeless would not be imprisoned.
Depending on the province, they have a number of alternative measures, so the person could apply to serve jail time if that was their choice. They could apply for a waiver, and based on the criteria that they did not have income or reasonable prospect of being able to pay, a judge could decide to simply waive it.
Senator Joyal: Do you not have any statistics of how often Aboriginal people might be in that situation, especially in provinces where the number of Aboriginal people in jail is much higher than the average percentage in that province's population? Do you have any figures on how many the Aboriginal people could be affected by the changes?
Ms. Arnott: I absolutely agree with you, senator. We know that the percentage of First Nations people who are offenders is much higher than the percentage of non-Aboriginal people. It is disproportionate to the Aboriginal percentage of the population. We also know that they are disproportionately represented as victims of crime. Aboriginal people are three times more likely to be victims of sexual assault.
The impact of this bill on First Nations people will, we think, be equally positive in that they will have the ability to benefit from increased revenues for victims' services programs.
Senator Joyal: Have you ever conducted studies as to why judges seem to be so liberal in waiving the payment of the charge?
Ms. Arnott: I would point you to two things. First of all, the New Brunswick study showed a number of reasons why judges were not imposing the surcharge. Some were unaware of it. They were —
Senator Joyal: You mean that they were unaware of it even though, in the Criminal Code, according to what the minister stated, they have to explain the reasons why they are waiving?
Ms. Arnott: That is correct.
Senator Joyal: No one follows up on the judges' obligation to explain the reasons for waiving the surcharge?
Ms. Arnott: We would see in the case law that the clerk would remind the judge that there was a surcharge to be imposed in addition to his sentence, and the judge might then make a decision to waive it.
Another reason we found was simply that there was no inquiry, so the defence said, ``Waiving the surcharge,'' and the judge simply agreed. They did not conduct any kind of inquiry about what undue hardship meant.
Senator Joyal: In other words, the law is not followed strictly according to the spirit and the letter of the previous legislation.
Ms. Arnott: Yes, sir.
Senator Joyal: You, as the Department of Justice, do not have any means to bring to the attention of judges that, in fact, they are not following the law? It seems reasonable to ask a judge to explain why he or she waived the payment of the surcharge.
Ms. Arnott: We have a means when we work with organizations such as the National Judicial Institute in developing training programs for judges. It is that kind of encouragement we can offer to judges.
Senator Joyal: It sounds strange, in a way. Such a provision of the Criminal Code seems to be compelling because it is in the code, not just a regulation forgotten somewhere at the bottom of a statute. As I understand it, it applies to any offence, be it through summary conviction or indictment, that such a provision, which is applicable in each and every case, seems to be ignored by judges immediately, without anyone bringing that to their attention for all those years. There is something wrong in the system. I do not understand how it functions in relation to that.
The Chair: The provincial victim surcharge in New Brunswick — I do not know if this applies — is it mandatory?
Ms. Arnott: It is applied on provincial law.
The Chair: It is mandatory.
Ms. Arnott: Yes, it is.
The Chair: The judges are imposing that. They are required to do so. It makes it more passing strange that they are not aware of the federal responsibility.
Ms. Arnott: The difference between federal and provincial surcharges is partly that provincial surcharges are automatically included on speeding tickets, for example. Both their imposition and collection is easier because of the structure of them, if that makes sense.
Senator Baker: I have two points. First, I do not know how you could impose upon a court that they keep a record that would be public. It depends on if it is reported or is a written judgment. You can state reasons, which is all the legislation now demands, which you are removing from the legislation, but all it says is that the judge must give reasons. That would be one problem.
As to the second problem, you are aware of 734.7 of the Criminal Code. That is where, if a fine is imposed upon someone who was convicted of a crime or discharged and the court sets down a time for the payment of same, the judge can issue a warrant for that person's arrest. How does that apply? The message I get from you is that will not apply to these charges. I do not know why it would not apply.
Ms. Arnott: I must have expressed myself poorly, senator, because it does apply.
Senator Baker: If you cannot pay and there is a time period set down, then you could end up receiving a prison sentence?
Ms. Arnott: No, this section does apply. This section provides that if the reasonable time —
Senator Baker: Thirty days.
Ms. Arnott: If the use of fine option programs or other measures is not appropriate for whatever reason, then a warrant could be issued. If the offender has, one, refused and, two, without reasonable excuse refused to pay, then a warrant could be issued. It is in all of those circumstances.
Senator Baker: I understand that. It does not depart from the fact that the ultimate issue becomes, first, that a warrant is issued and, second, that a person could be incarcerated.
Ms. Arnott: Yes.
Senator Jaffer: Following what Senator Baker was saying, and the minister did allude to R. v. Wu, in that case the court said it was inappropriate to send someone to jail for a fine. With all the steps that Senator Baker explained and you agreed to, this, in the end, means that a person would end up in jail. Is that not correct?
Ms. Arnott: If the reason why they could not pay the fine was extreme poverty. One of your colleagues mentioned the example of someone who has homeless. If there was no reasonable prospect that that person would be able to pay the surcharge, then they would not be imprisoned, as you said, because of the application of R. v. Wu, but also because of the provisions of section 734.7.
Senator Jaffer: I have been struggling with this, and perhaps you can help me. You were explaining to Senator Joyal that with undue hardship the judge cannot take that into consideration and then they go to the next option. Even then, if that option or other methods are not available, they can then apply for a waiver.
What is the difference? First you cannot go for undue hardship. The judge cannot assess that; he has to impose the surcharge. They go through the options and then apply for the waiver. What is the difference? I do not get that.
Ms. Arnott: The difference is that the surcharge is now imposed. When we look at American examples, we found that the majority of surcharge or surcharge-type measures were less than $1,000 and were paid quite promptly. The sense we got was that if someone was told that they must find a way, they will.
The intention here is to find a measure that suits the principles of sentencing. Part of that is responsibility to the victim and to the community.
Senator Jaffer: I get that. I get that most people, if they have the ability to pay, will do so. We also know that, sadly, we have citizens among us, whether they are Aboriginal or others, who truly cannot pay. You said fairly that they can apply for a waiver. For me, that is undue hardship, when the judge assesses that they truly cannot pay. Why take that judge's discretion away? I do not get that.
Ms. Arnott: I think all I can indicate to you, senator, is what I have already stated.
Senator Jaffer: I have a clarification question on the victim surcharge. It is a given that we all obviously want to help victims. The victim surcharge does not go to the specific victim. It goes into a fund, so it does not help this particular victim, the person the offender has hurt. It goes into a fund. How is that fund administered and what kind of things does it help? I guess this is a fund that helps victims generally. What kind of things does it do to help victims generally?
Ms. Arnott: Each province and territory has victim service legislation that provides what they want those funds to be used for. That is a decision that each province and territory has made based on their needs.
Senator Jaffer: Can I just stop you there? I come from British Columbia. Is this like the Workers' Compensation victims fund? Would the funds go there?
Ms. Arnott: It is in that it is a unique entity. Does that make any sense? The minister mentioned a few uses that the victim surcharge dollars can be put to. They can include court support, preparation of victim impact statements, and for some provinces it can go into compensation funds. It can include services like referrals to treatment, to counselling or to other community services. Each province and territory has indicated the uses that they want the surcharge dollars to go to.
Senator Jaffer: One other thing you mentioned was intention. What I am struggling with in all the things you are saying is what happens if a person has a mental illness and does not form the intention? Where does that person come in?
Carole Morency, Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: Do you mean intention to commit the offence?
Senator Jaffer: No, he has already been found guilty. That is a given. I am past that. You were saying that one is an option if it shows he is making no efforts to pay, and then imprisonment would be looked at as an option. My concern is if someone is found guilty and has mental issues, how do we assess intention?
Ms. Morency: I think you have to come back to the principle here. When the surcharge is imposed, the offender pays. If the offender is unable to pay or needs time to pay or some other consideration, there are means to provide a reasonable period of time to pay. They may be unable to pay due to a reasonable excuse. The Wu case stands for the proposition if they are financially destitute, which is a reasonable excuse. I guess it would be open to the court to consider whether a person's mental incapacity was such as to constitute a reasonable excuse that rendered them unable to pay. Is that possible? It is possible.
Senator Jaffer: The court can still decide that. I thought that the court could not consider undue hardship.
Ms. Morency: The court would not consider it in the way that you are suggesting. The court would consider it as it exists in terms of when a court can order to issue a warrant for the committal of the offender. The court can do that only in the circumstances already set out in section 734.7 of the Criminal Code, to which the senator and my colleague referred.
If the offender has refused to pay the fine without reasonable excuse or to discharge it, that could be consideration for the court to issue the warrant for committal. The court or the justice of the peace would have an opportunity to consider.
Senator Jaffer: That would be at the time of the issuance of the warrant.
Ms. Morency: Right.
Senator Jaffer: Has this bill been Charter tested?
Ms. Morency: As you know, the Minister of Justice is responsible for looking at all proposed legislation. Yes, the minister has looked at this and has satisfied himself that the bill is Charter compliant.
If I may, I will go back to the point about the surprise at the judiciary not imposing this and when they are required to do it and also not providing reasons for not doing it when they decide to waive the surcharge under the existing law. I do not want to overstate the point. The study that my colleague and the minister referred to of the surcharge in New Brunswick, for example, generally describes some of the reasons given by some of the courts as to why a surcharge was not imposed, such as administrative oversight. It might be taking it too far to suggest that many judges out there do not know about this or are intentionally unaware of what is before them. Those were some of the reasons discovered when we tried to figure out what is going on and why the surcharge is not being imposed.
As my colleague said, we try to work not only through the National Judicial Institute but also through our working groups at the FPT level because they are trying to work toward the same thing. The funds go toward victim services in their jurisdictions. We all have a common interest to ensure that the law is known and understood. Notwithstanding that, sometimes it has come to our attention that it was not always imposed, in fact quite often.
Senator Batters: Senator Jaffer's question was about specific victims not receiving funds. Is it not correct that a specific victim is eligible to benefit from the wide range of victim services programming available from and paid for by the victims of crime fund, such as assistance with victim impact statements and assistance with comfort in testifying in court proceedings?
Ms. Arnott: Yes. I absolutely agree with your assessment of the services in Saskatchewan. They really are a leader on our FPT group in what they are doing for victims of crime. The range of services that they offer for victims, writ large, and for specific communities, children and First Nations is very impressive.
Senator Batters: That is great. I will have to tell them to watch this proceeding on CPAC when it is available.
The Chair: My question is about one of the charts in the New Brunswick study, on page 14, which I think you referred to earlier. I am curious about a couple of things. In 2002, Quebec's actual revenues exceeded their potential revenues by a fair amount of money. I believe you said in response to Senator McIntyre that judges have some latitude. Is that the reason for significant monies collected above the potential revenue? Do you have any answer for that? I know it is a New Brunswick study, so maybe you do not know.
Ms. Arnott: I am sorry, I do not know.
The Chair: The other one that bothered me was Ontario, where there was a significant shortfall. Ontario was the worst performer across the country, with a shortfall of almost $5.5 million.
Senator Joyal: For what period was that?
The Chair: This was 2001-02.
Do you have any indication what has transpired since this data was collected by New Brunswick? Has it continued along the same line? On page 14 in the New Brunswick study, you can see potential revenues of $6.647 million and $1.237 million actually collected.
Ms. Arnott: I am sorry, I do not know.
The Chair: They are bad actors. There is a compensation fund in Ontario that is a bureaucratic nightmare for victims and very limited in the amount of money provided. That may have led to a case a number of years ago where an offender who was part of an organized crime group paid a victim over $3 million. Certainly, questions arose about the propriety of that because it occurred before the trial took place and the resulting sentence. Of course, the province missed out on those kinds of funds, which could have addressed such situations of extreme harm done to the victim. In any event, that is not your problem, but it should of concern to Ontarians and people who represent victims in the province.
Senator McIntyre: Bill C-37 would remove the undue hardship exemption. Would it be fair to say that one of the reasons for the amendment is that in most cases and in most jurisdictions the presiding judge does not impose a victim surcharge? That has been my experience in the practice of criminal law.
Ms. Arnott: Yes, that was what we found. Certainly in the New Brunswick study we found that the surcharge was waived in two thirds of the cases. There was a low imposition rate for the surcharge. In offences where there clearly was a victim who suffered harm, for example in personal injury offences, and the surcharge was imposed, it was collected in a significant percentage of cases.
Senator McIntyre: If I am not mistaken, the presiding court judge in 90 per cent of the cases in New Brunswick did not impose a victim surcharge.
Ms. Arnott: I am not aware if the percentage is that high. One of the challenges that we found in the study in New Brunswick was the lack of documentation.
Senator McIntyre: There were no reasons given on record.
Ms. Arnott: That is right.
Senator Fraser: Not all provinces have the fine option programs. Why is that? Do some provinces refuse to establish them?
Ms. Arnott: It is not up to the federal government to require that they have them. It is their decision.
Senator Fraser: I am asking only for fact. I am not asking for opinion. I understand that you have to observe the proprieties.
Ms. Arnott: The provinces that do not have fine option programs have alternatives. They have application to waive, application to serve time in lieu, and the ability to create payment plans or extend the time to pay. All of the provinces that do not have fine option programs have a set of alternative measures.
Senator Fraser: There is no province that would take a hard line and say, pay this money — no ifs, ands or buts.
Ms. Arnott: That is right.
Senator Fraser: That is helpful, I suppose.
I would like to come back to the question that Senator McIntyre put earlier about the amounts of these fines. I take the point that for some people — members of organized crime that the chair referred to — could pay a $200 fine without even blinking, I presume. However, for many people, even a $100 fine is a great deal — an enormous amount of money. If you are a single mother on welfare, you will find it hard.
Has any analysis been done, any consideration given or any checking of the approach of other jurisdictions to possible variances in the minimum surcharge? I understand that they can be waived for inability to pay, but I am not talking now about the actual resort to a waiver. I am suggesting some notion of being able to vary not only up but down the amount of surcharge levied according to ability to pay. I understand that it can go up, but this bill does not offer it to go down. Is that because no one in the world allows for it to go down or because you just did not look at it?
Ms. Arnott: What I can point you to, senator, is the initial surcharge provisions were at a lower amount, $35, and there was consideration at that time to change the amount to allow the amount to be more flexible. The counterpart to that was that it created uncertainty and aggravated the problem of it not being imposed. That was why the decision was made the last time the provision was amended to set the amounts.
As to the point of international comparators, I am afraid I do not know.
Senator White: Several years ago in the province of Ontario there were issues raised around public officials accessing victims of crime funding, correctional workers and police officers, and in one case, I think, a firefighter. Has that been an issue raised federally as you are having these discussions?
Ms. Arnott: No, that has not been a concern federally. The funds are used for victim programs. Whether that person is employed, they are used for victim programs.
Senator Joyal: Is it the intention of the department to monitor the implementation of the new provisions so that we know the end result of that bill? That is, in three or four years from now, will we know that the victim funds have been enriched to the level expected, based on the number of offences declared by the court?
Ms. Arnott: Yes, absolutely. We are frequently asking our provincial and territorial colleagues if they will participate in research studies with us. The New Brunswick study was the result of the deputy minister at the time offering to work with us in doing such an expansive study.
The other point of information we are looking forward to in the future is work that Statistics Canada is doing where they will be able to tie revenue amounts to specific programs.
Senator Joyal: I would like to come back to the issue of the discretion of judges that is abolished in relation to sentencing. Have you really taken into account the risk entailed in such a decision in relation to section 12 of the Charter, a challenge that could be based on the fact that the fundamental principle of justice requests that sentencing be tailored to the individual offenders and the offences? Have you pondered the implications of the bill in relation to that?
Ms. Arnott: Yes, senator, I believe that we have. The intention in these proposed amendments is that they would still be subject to the totality principle of sentencing so that it would be up to the sentencing judge to take account of the fact that the surcharge was automatically part of a sentence and to tailor the rest of the sentence accordingly. As my colleague has indicated, this proposed set of amendments has passed Charter scrutiny at the department.
Senator Joyal: I know, but you know that there is debate in front of a Federal Court in a famous case that has been covered in the media in the last month about a former employee of your department who challenged that those studies are conducted seriously by the department. You will understand that we might entertain a reasonable doubt — not you precisely, because I do not want to personalize the question. We hear from the Department of Justice the same answer through the years, and bills continue to be challenged in court. Moreover, a person from your own department who was responsible for doing that kind of evaluation is in court to challenge the department on that very ground. We have reasonable doubt that what you offer us as an explanation — there is an expression in French that says we have to take it avec des pincettes, which means that we have to take it not necessarily for all the weight of its meaning. How can we be assured that those studies are conducted seriously and that we can satisfy ourselves as legislators that when you come forward with such a proposal, it accords with the levels of scrutiny that the Charter will impose upon it?
Ms. Morency: As we have said, the minister has satisfied himself that this bill does comport with the charter. Obviously, we are not in a position to comment on the case to which you are refer, but clearly you will be aware of the standard that is looked at. The minister does look at legislation to see whether a credible argument can be made to support the legislation if it is challenged, that it is reasonable and that there are bona fide bases capable of being argued in a court of law. All members of the committee will know that Charter challenges do happen, and findings are sometimes imposed at a trial level of unconstitutionality and may not be upheld on appeal. All we can do is reassure you that the minister has satisfied himself that the bill does meet that standard, that test, and comports with the Charter.
Senator Joyal: There have been an abundant number of cases in the principles of sentencing in relation to the Charter. I am sure that you monitor those precisely in your department. I would be enlightened if you could explain to us how this bill fits in relation to the conclusions that the Canadian courts have through the years been establishing in framing the principles of sentencing for which you think this bill satisfies those requisites.
Ms. Morency: As my colleague mentioned, in terms of when a court comes to the sentencing process in a particular case, the Criminal Code provides very clear direction to the courts. They must consider very specific things, including the totality of the sentence imposed in light of the offender before the court, the specific circumstances of the offender and the offence, the impact on the community, and the need for rehabilitation and reparation. All of those factors are set out in the fundamental principles of sentencing in the Criminal Code.
When bills to amend the Criminal Code are introduced in Parliament, those principles will always influence how penalties are structured and how they will be interpreted by the courts. For example, a fundamental principle of sentencing in section 718.1 of the Criminal Code is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Each court will always be required to take these principles into account when they look at the case before them and when they look to sentence the offender as they find the offender before them. Certainly all of those factors are at play.
Where there is discretion because of undue hardship and a requirement to provide reasons why that discretion has been exercised but that is not materializing, Bill C-37 follows what is really in the law right now, which is that it should be imposed in all of these cases, unless there is undue hardship. That is the intent of the current law.
Under Bill C-37, an individual who is unable to pay will be able to take advantage of a fine option program, where it exists, or alternatives in those three jurisdictions that do not have a fine option program. Ultimately, as we have discussed, if at the end of the day the individual is truly unable to pay due to financial circumstances, the Supreme Court has clearly said that it would be unconstitutional to imprison that offender in that situation, and Bill C-37 does not change that. It respects that.
Senator Jaffer: Are you saying that the ruling in Wu is also applicable to victim surcharges? That is what you are saying.
Senator Baker: I have a final question concerning the statements made here today about judges. I always have sympathy towards judges because they have a big workload in front of them every day, case after case after case.
In saying that there is no record of the reasons for not imposing the surcharge or of the fact that the surcharge was not imposed, the law states here, in this section, that the reasons shall be given ``in the record of the proceedings.'' Those are the words.
If I want to find the record of a proceeding, I have to go to the court, get a tape recording and get somebody to transcribe it. If I have somebody's criminal record that says that they have been convicted of an offence and fined, I see the conviction and the fine. You never see a breakdown; you see the total fine. You do not see fine surcharge federal, fine surcharge provincial, as you would in a lot of cases on sentencing.
How can we say, with any certainty, that it is not in the record of the proceedings, unless you went and got every single proceeding that took place on sentencing and got somebody to transcribe it or listened to it on the tape? That is my confusion as to how we can come to the conclusion that judges are not imposing what they are supposed to be doing.
The reasons would be stated in the judgment, which is in the record of proceedings, so that is my confusion because there is no other record. There is the record. I guess you understand the question.
Ms. Arnott: I do, and we can point you to two sources. First, we can talk to you about the methodology we used in the New Brunswick study, where we found that source to be able to make the statements that we did. I will let my colleague do that.
As for the second source that we can point you to, we used one of the search engines and did a case law search for decisions where we found surcharge and waiver.
Senator Baker: You did a search of case law? You probably did a search of Westlaw, Carswell or Quicklaw. Those are the most accurate.
How do cases get reported? How does a judgment get reported? The judge himself reports it, or the prosecutor or the defence attorney submits it.
For the numbers of cases that are adjudicated, there is no rule that says that you have to report your judgment or your record of proceedings. Some judges have never had a case reported in their lives, yet they have been paid for twenty years. It just means it has not been reported, so I cannot see how you can depend on that source of material.
Ms. Arnott: That is one source.
Senator Joyal: On that unique source.
Ms. Arnott: That is right. I will let my colleague speak to the other source.
Ms. Morency: If I were to read from the New Brunswick study that we have referred to repeatedly, on page 16, a description is provided in terms of the methodology used — on-site review, for example, court offices and one permanent provincial court visited, informal discussions, court proceedings observed on several occasions. They looked at the paper trail and the court file and did some random sampling.
Is it 100 per cent? No. That is why studies like this always provide the methodologies and the limitations.
Does it provide a reasonable snapshot as to what is actually happening on a number of occasions? We suggest it does, but the committee might have a different view.
Senator Joyal: Is the fine option program applicable to any victim surcharge, or are there situations whereby those fine option programs would not be open for victim surcharges that someone does not have the means to pay?
Ms. Arnott: No. Each province and territory has set out the parameters of their fine option program, and I believe the Library of Parliament paper mentions the parameters. Some fine option programs right now do not allow the surcharge to be paid because that is what the code says right now.
Those provinces and territories will need to make changes to allow for the surcharge to be included. For provinces that do not have that provision, there is no exclusion for a kind of surcharge.
Senator Joyal: Do you know offhand how many provinces would have that exclusion?
Ms. Arnott: I have three in my head, but that is —
Senator Joyal: Any that we know?
Ms. Arnott: P.E.I. is the one that I am remembering right now.
Senator Batters: Is it possible that another source of knowledge about the lack of a federal mandatory surcharge has been a subject brought up at an FPT level for several years? It is the provinces that employ the prosecutors in many of these cases. In discussions with the prosecutors about what is happening in the courtrooms on a daily basis, it is my understanding that this is a subject that has been brought up for quite some time at an FPT level.
Ms. Arnott: Amendments made in 2000 were the subject of discussion at the FPT group. It has also been discussed at FPT meetings. The Attorney General of Manitoba made proposals in 2005, and in subsequent years it was discussed at an officials' level.
The Chair: Thank you, witnesses. I appreciate your contributions today to our deliberations.
(The committee adjourned.)