Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 34 - Evidence for April 17, 2013
OTTAWA, Wednesday, April 17, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which
were referred Bill C-37, An Act to amend the Criminal Code; and Bill C-309, An
Act to amend the Criminal Code (concealment of identity), met this day at 4:16
p.m. to give consideration to the bills.
Senator Bob Runciman (Chair) in the chair.
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 continue our consideration of Bill C-37, An Act to amend the Criminal
Code, victim surcharges. Later today, the committee will begin its consideration
of Bill C-309, An Act to amend the Criminal Code (concealment of identity).
As a reminder to those watching, these committee hearings are open to the
public and are also available via webcast on the parl.gc.ca website. You can
find more information on the scheduled witnesses on the website under ``Senate
For our first panel today on our continued deliberations on Bill C-37 I am
pleased to welcome back to the committee, appearing by video conference from
Winnipeg, the Honourable Andrew Swan, M.L.A., Minister of Justice and Attorney
General for the Government of Manitoba. Minister Swan is joined by Suzanne
Gervais, the Executive Director of Manitoba Victim Services. Welcome.
Minister Swan, the floor is yours.
Hon. Andrew Swan, M.L.A., Minister of Justice and Attorney General,
Government of Manitoba: Thank you and good afternoon, Senator Runciman and
senators. I do thank you for the chance to appear before your committee again
and to present on Bill C-37, An Act to amend the Criminal Code, known as the
increasing offenders' accountability for victims act. I am indeed coming to you
live from the Law Courts Building in downtown Winnipeg across the street from
the Manitoba legislature, and I am pleased to be joined by Suzanne Gervais, the
Executive Director of Manitoba Victim Services. She will be able to assist with
any technical questions that the committee may have, and she will be far better
able to answer them than I.
I apologize that we do not have a written presentation prepared.
I am going to give my presentation in English only.
The Manitoba government has been a strong voice in support of victims of
crime. Manitoba supports Bill C-37 and I want to assist your committee by
providing further information, as was suggested in your letter of invitation. I
have reviewed the transcripts of earlier witnesses at your proceedings and I
respect the views of those who have spoken. I can say that, on balance, we
believe that Canadians, especially victims of crime, will be better off with the
passage of Bill C-37.
In 2000, the Manitoba government passed the Victims' Rights Amendment Act
which created The Victims' Bill of Rights. This legislation is Canada's
strongest, most comprehensive and enforceable statute to ensure victim
notification and consultation.
This legislation established the Victims' Assistance Fund. Money collected
from victim surcharges from both criminal and provincial fines are deposited
into the Victims' Assistance Fund. The fund is where monies allocated out of
Manitoba's Criminal Property Forfeiture Fund are placed as well. The fund is
used to promote, deliver and administer services for victims; to conduct
research into the needs and concerns of victims and into the services of
victims; to distribute information respecting services for victims; to make
grants with respect to programs and services that benefit victims of crime; and,
finally, to administer The Victims' Bill of Rights.
Since the proclamation of The Victims' Bill of Rights, the Government of
Manitoba has continued to provide direct support services to victims of crime
through Manitoba Justice's Victim Services branches. We have 53 staff located
throughout the province of Manitoba. They provide direct service to victims of
the most serious crimes — victims of domestic violence and child victims and
Victim Services workers provide assistance and support to approximately
19,000 victims throughout Manitoba each year. They reach out to victims of crime
in all of our court and circuit point locations at more than 60 geographic
locations in the province of Manitoba. Our Victim Services workers explain the
criminal justice process and advise victims of their options, rights and
responsibilities. They provide short-term counselling and connect victims and
their families with community resources.
Victim Services workers liaise with other justice professionals to improve
victim access to the justice system. They also promote victim safety through
protection planning, which is especially critical in domestic violence cases.
Victim Services administers the Protection Order Designates Program. This
program delivers training to social services providers throughout Manitoba who
assist victims of domestic violence and stalking with all aspects of safety
planning, including how to assist with protection order applications under our
Domestic Violence and Stalking Act.
Victims of domestic violence receive support from our Domestic Violence
Support Service, whether or not criminal charges have yet been laid. The program
offers a coordinated approach with police officers in situations where serious
safety concerns are noted and/or further investigation is required. A family
liaison worker collaborates with justice partners and community agencies to
support the families of missing persons.
Last year, grants from the Victims' Assistance Fund, in addition to these
other very worthy goals, were issued to the Manitoba Organization of Victim
Advocates, or MOVA, which offers additional support to family survivors of
homicide; the Eyaa-Keen Healing Centre, which provides trauma treatment and
support through traditional ways and teachings to Aboriginal women and men who
have been impacted by crime; the Eyaa-Keen ``My Good Life'' project, which
addresses the grief and loss experienced by families of missing and murdered
Aboriginal women and girls; and the Pembina Valley and Brandon Police Victim
Services programs, which provide additional support to victims of crime.
The funds generated from federal and provincial victim surcharges applied to
fines or sentences set by the courts help us make these services and programs
available to victims of crime. Many of them are delivered by Victim Services but
others, as I have indicated, can be delivered by our community partners. Plainly
and simply, increased revenues could help us offer additional and better
services to crime victims.
In January 2005, my colleague, Manitoba's former attorney general, Gord
Mackintosh, urged the federal government to increase the amount of the
Criminal Code victim surcharge. At that time, Manitoba proposed an increase in
the amount of the victim surcharge because it represented, at both levels of
government, support for victims and would also serve, I believe, as a statement
about stiffer penalties for offenders while still enhancing offender
Manitoba supported and continues to support an increase in the amount of the
victim surcharge. We do so because most of the victims who benefit from the
services provided by the surcharge are victims of Criminal Code offences. As a
result, we think it is appropriate that revenue from Criminal Code offences
should be increased to become a greater proportion of the total surcharge
Longstanding concerns have been identified regarding implementation of the
victim surcharge and maximizing revenue. I have seen the comments of various
witnesses, including Minister Nicholson. One concern at present is the waiver of
the surcharge by judges on a mere assertion of inability to pay instead of a
demonstration that undue hardship to the offender or the dependents of the
offender would result from non-payment of the victim surcharge as required by
section 737(5) of the Criminal Code. Another current concern, which has been
stated, is that records do not properly refer to the surcharge even in
situations where it is currently required to be imposed.
A third concern, of course, is default of payment. As many provinces and
territories, including Manitoba, depend on victim surcharge revenues to help
fund their victim-related service program, it is essential that we do whatever
we can to ensure that the surcharge meets its revenue-producing potential.
Manitoba believes that Bill C-37 addresses the concerns identified with the
existing victim surcharge provisions. The repeal of section 737(5) will
eliminate judicial discretion and will make the victim surcharge automatic in
all the cases provided under section 737(1) of the Criminal Code. Increasing the
victim surcharge from 15 per cent to 30 per cent of any fine imposed by the
court and, if no fine is imposed, increasing the victim surcharge for summary
conviction offences from $50 to $100 and for indictable offences from $100 to
$200 will provide greater revenue that we know will ultimately assist victims.
The increase of victim surcharges in Bill C-37 could mean that the amount of
the federal victim surcharge received by the provinces and territories would
double. Manitoba receives approximately $250,000 per year from federal victim
surcharges. If everything else were equal, it is anticipated the amount would
increase to $500,000. However, we are hopeful the actual amount may be higher
due to the elimination of the judicial waiver, which means that in all
appropriate cases the federal victim surcharge will be ordered.
We do believe that Bill C-37 sends a message to the courts and offenders
demonstrating Parliament's focus on support of victims of crime and the need for
I have read the concerns of those opposed to Bill C-37. I can advise this
committee that Manitoba has no intention of incarcerating people by reason of
the non-payment of a victim surcharge alone. However, Manitoba can and will use
other methods to collect amounts owing under the surcharge.
The Manitoba government is pleased that the federal government has adopted
Manitoba's views that increased victim surcharges for offenders must be a
priority of federal law reform by introducing Bill C-37. We do support Bill C-
37. We encourage the Senate to pass the bill and we are hopeful that it will be
proclaimed into force and implemented as quickly as possible.
As I said at the outset of my presentation, I am joined by Suzanne Gervais
who will assist me and, if the committee is agreeable, answer you directly on
technical questions you may have. I thank you for the opportunity to be with you
The Chair: Thank you, minister. We will begin the questions with the
deputy chair of the committee, Senator Fraser.
Senator Fraser: Thank you very much, minister, for agreeing to be with
us this afternoon. The last time you appeared before this committee I remember
being very impressed by Manitoba's approach to victims, which was compassionate
and practical. Listening to you today, I have confirmed that impression.
I would like to go straight to the money question. You said that you now get
about $250,000 under section 737 surcharges and, all other things being equal,
that would be expected to double. However, as we know, all other things are not
equal. We know that there are those cases where the surcharge is not applied.
Do you have any information for us about the proportion of cases in Manitoba
where the surcharge has not been applied and where you would expect it to be
applied now? Do you have any sense of the actual impact, both on the human
beings involved and on the revenues that you will be receiving?
Mr. Swan: I thank you for your comments and the question. We have not
done any deep analysis of the percentage of cases or our collection rate. That
is why I used the very straight example that, if nothing happened other than
that the surcharges we are able to collect right now were doubled, we would have
another $250,000 for victims in Manitoba. We are hopeful that the restriction on
judicial discretion and more attention being given to the surcharge being
applied will result in even greater revenue that can be used to assist victims.
However, we will not be building that into our budget for this year because we
know that there will be some uncertainty as to how many of these we will be able
Senator Fraser: Fair enough. What proportion of the Victims'
Assistance Fund is derived from section 737 surcharges now? Maybe it would be
easier for me to ask how much money is in the fund, and how much goes in every
year. I am looking at the total fund.
Mr. Swan: Ms. Gervais has advised me that the total Victim Services
budget for the province of Manitoba is $4.6 million. That is the amount of money
in the Victims' Assistance Fund, give or take a little bit. As you can see, the
federal surcharge at present is a pretty small piece of that $4.6 million. It is
certainly helpful, but the prospect of increasing that Criminal Code surcharge
Although I do not have a detailed breakdown, if you were to look at that $4.6
million, you would find that the majority of it is being expended on victims of
Criminal Code expenses. We effectively use a lot of provincial revenue or
provincial surcharges from provincial fines, such as the Highway Traffic Act, to
support Criminal Code victims.
Senator Fraser: To confirm my reading of your law, all monies
collected under section 737 must go into the fund. Assuming the amount will
rise, which seems reasonable, will you use that to increase the total budget for
Victim Services, or will you be able to say that you can save money from general
Mr. Swan: I can tell you that additional revenue that comes in from
the surcharge will go into the Victims' Assistance Fund and to support victims.
Senator Fraser: It will increase the budget, will it?
Mr. Swan: That is correct.
Senator Boisvenu: First off, thank you for your input, and second of
all, I want to commend the Province of Manitoba. For about 10 years now, I have
been following the work of MOWA, the organization in your province that provides
assistance to victims of crime. You served as the model for the other provinces
as far as the quality of services you offer to victims goes.
Are all of the federal and provincial surcharges deposited into a specific
fund, or do they go into a provincial consolidated fund?
Mr. Swan: Thank you for the question. By law, every penny received
under Criminal Code surcharges, as well as provincial court surcharges, goes
into the Victims' Assistance Fund. That is set out in subsection 40(2) of The
Victims' Bill of Rights.
Senator Boisvenu: You know that victim assistance is a provincial
responsibility. There is a very large gap between certain provinces as far as
providing a minimum level of service goes. One province that comes to mind is
Newfoundland, which offers very little service. Other provinces, such as yours,
Ontario and Quebec, provide good services to victims of crime. Should we not use
the increase in the surcharge to ensure that the provinces can offer victims a
basic range of support services across the country, so that victims in Canada
are treated as equitably and as consistently as possible across all provinces?
There is no such thing as reciprocity when it comes to victim assistance in
Canada. A Quebecer who is the victim of a crime in your province will not
receive any victim assistance. A Canadian has to live in the province where the
crime occurred. Would this not be a perfect opportunity for the provinces to
reach an agreement amongst themselves as to a basic level of service that could
be provided to Canadians all over the country?
Mr. Swan: That is a very large question. We are proud in Manitoba of
having one of the better systems. We are aware that different governments have
made different choices regarding support for victims of crime.
The big question you ask is a live one. I can advise committee members that,
next week, justice ministers from across the country have been summoned to have
a discussion about whether the federal government should play a role in
determining what services are available to victims. I know there will be some
officials from Manitoba going; Ms. Gervais will be going in order to be part of
those meetings. We are in the middle of our budget debate. I do not know whether
I will be part of our team, but I know that is a live question that Manitoba
will be pleased to take up as early as next week.
Senator Boisvenu: Allow me to undertake some consultation, as I had
planned to ask a few provinces about the idea. Would you, as a Manitoban, be in
favour of having a minimum level of service for Canadian victims regardless of
the province they live in? Would your province be in favour of that?
Mr. Swan: I am not really in a position to answer that question. We
believe that we provide good service to victims of crime. We would always like
to keep expanding the range of victims who receive support under The Victims'
Bill of Rights.
I think you will hear from many provinces that if they were required by the
Criminal Code or other laws to increase the services paid, I expect they would
be looking to the federal government to provide assistance with that. I will not
comment on whether that is right. I can, of course, repeat that Manitoba invests
all of the money that we receive from this federal surcharge in supporting
victims of crime. Again, we will certainly put towards victims of crime any
further revenue that we can derive should this bill pass the Senate.
Senator Jaffer: Thank you, minister, for making yourself available. I
am the Chair of the Standing Senate Committee on Human Rights, and we were
recently in Winnipeg. It is not news to you, but it really came home to us that
you have a very large Aboriginal population with many challenges. You know that
many, sadly, are grossly and disproportionately represented in prisons.
If you double the victim fine surcharge and you remove the judicial
discretion to waive it, would this not worsen the situation for Aboriginal
people? How do you see, then, that the Gladue principle would apply to
Mr. Swan: The level of incarceration and the level of contact with the
justice system among Manitoba's Aboriginal people is a great problem. We know it
is a symptom of larger issues.
There are a few things that I think need to be kept in mind. Although,
unfortunately, a disproportionate number of Aboriginal people are involved in
the justice system as offenders, it is also the unfortunate fact that a
disproportionate number of victims of crime are Aboriginal people. We believe in
the general idea that offenders should bear some responsibility, certainly to
victims, and the money raised from the federal and provincial surcharges helps
us deliver services to victims.
Manitoba is one of the majority of provinces that has a Fine Option Program
that allows individuals to come forward and effectively work off or give back to
society and, in so doing, pay off their fine. Second, we hope they will gain
some skills and discipline that will assist them in becoming engaged in positive
things, whether getting ready to go back to school or entering the workforce. We
are quite prepared as a province to support people. We have increased the
training opportunities and the high school graduation rate. There are a number
of things that we think can be accomplished with the Fine Option Program that we
think can soften that.
Senator Jaffer: You are Minister of Justice, and of all the people I
know, you are aware of what the Supreme Court of Canada said; namely, that in
sentencing, the Gladue principle should apply. How will it apply to this
Mr. Swan: I would have to bring in my team of constitutional lawyers
because that is a complex issue. My understanding is that in many cases the
Gladue situation has been concerned with what the appropriate sentence
should be. In this case, we are not talking about incarceration or additional
incarceration. We are talking about a surcharge when someone is convicted of a
Criminal Code offence.
At least in Manitoba, and in other provinces, there is an option for people,
if they cannot pay, to give back to society in some other way. I would expect
that would mitigate any negative comment that would be available because of the
Of course, we certainly do respect the Gladue decision, but especially
given my earlier comment that we will not be incarcerating people in Manitoba
simply because they fail to pay the surcharge, I do not see that as playing a
big role in how Bill C-37 will roll out.
Senator Jaffer: The other question that concerns me is that, if I am
correct, sometimes when you are fined and you do not pay, over a period of time
the fine increases because of administrative or other costs. Can you tell us
whether a $100 surcharge would stay $100 throughout, if the person is paying
five years later, or will it increase because it is five years later?
Mr. Swan: If the committee is agreeable, rather than putting incorrect
information on the record, I can confirm that for you probably within 24 hours
and get you a very short answer.
Senator Batters: Minister Swan, I was previously the Saskatchewan
Justice Minister's Chief of Staff, and I attended a number of FPT meetings in
which you participated. I appreciate your support for this bill, and I recall
your strong support for these types of measures as we sat around those FPT
tables over a number of years. A common refrain that we would often hear at
those particular meetings was asking for those types of measures with these
Library of Parliament research material provided to this committee refers to
a 2004 Statistics Canada publication that, among other things, stated that
Manitoba allows entry into the Fine Option Program at the point of admission to
jail. Is that still the case, or have you changed the Fine Option Program
Mr. Swan: Ms. Gervais suggests that we do not seem to be doing that in
Manitoba. Individuals who receive a fine without necessarily the prospect of
incarceration are also able to enter into the Fine Option Program to work off
Senator Batters: That is great. I am glad to hear that people who are
not able to afford it do have that option in Manitoba. Thank you for that
Senator Baker: I thank the witness for his presentation. The witness
said that, in Manitoba, they would not be seeking a jail term if someone could
not pay the fine. I think that is what he said.
That would tell me and the committee and Canadians that your Department of
Justice would instruct the Crowns in your province to have in the Crown handbook
that the provincial Crowns are not to seek a jail term in sentencing if someone
is unable to pay the fine. I presume that is the way you would do it. That is
the normal way Crowns are instructed on how to act when someone will not pay a
fine or cannot pay it and what the remedy is to it.
However, those are in cases of the Criminal Code, but this also covers the
Controlled Drugs and Substances Act where you have a federal Crown. You have the
federal Public Prosecution Service of Canada. Are you saying that you are going
to find some way of controlling the federal Crown in these cases so that they
will not be asking for jail time for non-payment of fines?
Mr. Swan: Senator, you are absolutely right that, as the Attorney
General, I do not take a position or give direction on individual cases. We do
have prosecution policies that then can guide prosecutors in decisions they
make. I did say, and I stand by the fact, that we will not be seeking to
incarcerate people by reason only that they have been told to pay a surcharge
and they subsequently have not.
To make it very clear, if the surcharge comes up at the time of sentencing
and people are sentenced to jail, of course they will be sent to jail. However,
I believe we are both talking about a situation where someone is given a
sentence in the community or some other disposition and told to pay the
surcharge, and ultimately they do not.
You are right. I do not give policy direction to the federal prosecution
service, only to our provincial Crown attorneys.
Senator Baker: The full broadness of this legislation will only be
affected by your policy statements as far as you can affect them.
Let me ask you a further question. You said, and I recall this, that another
minister from your government recommended that the federal government increase
the victim surcharges. This was a recommendation from your government. When a
judge hands down a decision on sentencing, first of all, the judge deals with
the federal surcharge and, if there is a provincial surcharge as there is in
your province, then that surcharge will be dealt with. Then the total amounts of
money will be added up to determine how much the convicted person will have to
pay. Why would you ask the federal government to increase their surcharge when
you could have increased your surcharge? You could have doubled your surcharge
and brought in the same amount of money. It is going to the same place. Why
would you not have done that?
Mr. Swan: To go back to the previous question you raised on federal
laws other than the Criminal Code, the Victims' Assistance Fund requires payment
into the fund of surcharges under the Criminal Code of Canada and the Youth
Criminal Justice Act of Canada. I actually do not know whether the Controlled
Substances Act would also apply to this. I am looking at our own act, and it
deals with those two pieces of legislation.
The other point you raise is with respect to the assessment of the
surcharges. If it is a Criminal Code conviction, the surcharge will be assessed
at the federal level. If it is a conviction under provincial legislation, the
Highway Traffic Act being the most common instance, there would be a provincial
surcharge that is separate and distinct from the federal surcharge.
We are asking that the federal surcharge be increased with respect to the
Criminal Code. Again, we think that makes sense. The majority of the money is
expended on victims who are victims of Criminal Code offences. We have our own
court costs as well that are added on top, but the provincial surcharge and the
federal surcharge come from the nature of the statute the person has been
Senator Baker: One is provincial and one is federal.
The Chair: We will come back to you, Senator Baker.
Senator McIntyre: Thank you, Mr. Swan, for your presentation. I would
like to go back to the enforcement procedure you raised a while ago and also
mentioned in answer to Senator Baker's question. You have indicated and made it
clear that imprisonment is not an option and that Manitoba will be using other
means to enforce the victim surcharge. What other means of enforcement do you
have in mind?
Mr. Swan: Again, I will send you more information on that. I will talk
to my staff and see if we can try to send that along, together with the other
information I have undertaken to provide. I want to ensure I give the committee
the best information.
Senator Joyal: Thank you, Mr. Minister, for making yourself available
this afternoon. I understand that you have a copy of The Victims' Bill of Rights
with you, which is the act that governs the Victims' Assistance Fund. Ms.
Gervais will have it, probably.
By the way, Mr. Minister, I want to commend your service for the translation
you provided in both languages in Manitoba legislation. I have read the French
text and the quality of the French is particularly good.
Mr. Swan: Thank you very much.
Senator McIntyre: If you have the copy of the act, could you look at
section 41 — the section that refers to provincial surcharges? You mentioned in
answer to Senator Baker that there are surcharges imposed in Manitoba on
statutory provincial legislature statutes. Could you give us an idea of the
surcharge in comparison with the federal one at the present time?
Mr. Swan: I am glad Ms. Gervais is with me so she can give me the
The provincial victim surcharge was 20 per cent. Manitoba recently increased
that surcharge from 20 per cent to 25 per cent, effective September 2012. We
have recently moved to increase the provincial surcharge.
Senator Joyal: For each offence, what is the amount of the surcharge?
Is it $50 or $20? How much is it? We will have it in the federal statute at $100
for summary conviction and $200 for indictment. In terms of provincial statutes,
is there only one amount imposed on any offence?
Mr. Swan: That is correct. It is 25 per cent now. The distinction is
that the great majority of convictions under provincial offences will only be a
fine; there are far fewer results where incarceration will be a part of the
Senator Joyal: When you say 20 per cent, what is the average amount?
Mr. Swan: In terms of the dollar figure, we do not really have an
average. I understand that $2.4 million in surcharge revenue came from common
offence notices, which would be a large number of provincial offences. Those
include getting caught speeding by the RCMP or the Winnipeg Police Service,
Liquor Control Act offences, et cetera. Just over $2 million was due to photo
radar, which is a different way of proceeding. About $300,000 came from the
federal Criminal Code surcharge.
Provincial offences make up the bulk of the money.
Senator Joyal: Could you also look at subsection 44(4) in the same
chapter of the bill, which is entitled ``Justice may reduce or waive
surcharge''? It reads:
Despite subsections (1) and (2), a justice may, having regard to the
circumstances of an offender, including the degree of financial hardship the
surcharge would impose on the offender, reduce or waive the surcharge.
I was surprised, Mr. Minister, to read that in the provincial statute. It is
not that I am opposed to it; on the contrary, I think it is fair to leave
discretion to the judge. However, in listening to your statement, you support
the fact that we remove that discretion from the Criminal Code, yet you have it
in your own legislation.
I wonder if you do not have two approaches to this issue. I wanted to know
why you have that discretion for the judge imposing a fine for an offence at the
provincial level, but you do not want to have the same discretion for a judge
imposing a fine for the Criminal Code.
Mr. Swan: I thank the senator for pointing out that section of The
Victims' Bill of Rights, and that may very well be something that we look at
changing in the near future. If the bill proceeds through the Senate, we may
also look at whether the percentage surcharge for provincial offences should be
revisited, as well. I do thank you for that comment.
Senator Joyal: What is the rationale for you to have it in the bill
when you drafted it? I again want to commend you for the bill. I have read it
and I think it is a very well-articulated and well-conceived bill, and is in
both languages. However, what is the rationale for the basis of this section of
your Victims' Bill of Rights, which I find is an appropriate principle? Why do
you think you should want to change it?
Mr. Swan: I think a big piece of that would be due to considering
proportionality. Criminal Code offences are often more serious offences; in most
cases, those are the most violent offences. Those are the offences that result
in the services that are provided by Victim Services.
We think that the most gravity should be given to Criminal Code offences. We
think there is a big difference between someone who has been convicted of a home
invasion or another violent crime, and someone who has been caught speeding. I
do not want to minimize that, because we get the majority of our revenue from
provincial surcharges, but I think proportionality is a big piece.
We think that increasing the amount of Criminal Code surcharges flows
logically from most of our victim services being provided to victims of Criminal
I do take the point that you have made, senator, and we will be taking a look
at whether, in light of this, we should be updating The Victims' Bill of Rights,
which came into effect 13 years ago.
Senator Dagenais: Thank you, minister. My question is very simple.
What are the biggest problems you have when collecting the fine surcharges, or
who are the ones who just do not pay, if you will?
Mr. Swan: I am not really able to give a definitive answer to that. We
really do not have a system to track the percentage of the surcharges being
collected. I wish I could give you a better breakdown between Criminal Code
surcharges and provincial surcharges. We do not really have the capacity right
now to give you a definitive answer.
Senator Plett: Minister, I have just a few very brief questions.
First, I would like a little clarification on the answer that you had for
Senator Boisvenu on ensuring that the money from the victim surcharge goes into
a fund specified for that as opposed to general funds. Is that done in Manitoba
by legislation, or is that simply a commitment the government has made?
Mr. Swan: That is done by legislation. It is subsection 40(2) of The
Victims' Bill of Rights.
Senator Plett: Do we in Manitoba have a bit of a slush fund in the
Victims' Assistance Fund, or are we in a negative position?
Mr. Swan: No, the great majority of the money that comes in is spent
every year. At the end of the year, crumbs might be left over if an agency has
been unable to deliver the services we have asked for or if a staff position has
been left unfilled for a couple of months. The great majority of the money that
comes in each year is used in year to support victims in Manitoba.
Senator Plett: That is great. Thank you.
I have one last question on the work in kind that you were talking about. If
someone cannot afford to pay, you have a program where they can possibly work
this off with community service. Would the Province of Manitoba then put money
into this victims' fund if someone was working this off at whatever price you
would put on it, such as $20 per hour? Would you put money into that fund?
Mr. Swan: I can tell you that the Fine Option Program is actually run
by a number of community partners. I can give you a bit of explanation on how
that program works.
The Fine Option Program pays our community partners $60 for the first
worksite placement and $40 for a second worksite placement, if it is needed. The
program pays to the community providers a fee of $2 per 10 hours worked to
provide for the supervision of people who are doing the work. I believe people
work off their funds at $10 an hour. Is that correct? I am getting some shrugs
around here in the courtroom, so I can provide an update.
Is that what you are looking for, senator, to understand the mechanics of how
the Fine Option Program works and how people effectively pay off their fines
Senator Plett: Yes, how they pay off the fine and, if there is a
monetary value put on the work they do, whether there is money that goes into a
fund then, but the mechanics of it, if you would.
Mr. Swan: I can tell you that no money goes into the fund.
Effectively, that surcharge is paid, but all that happens is no further action
is taken to collect that surcharge. There is no notional money paid back into
the fund. It is simply gone if someone successfully completes the Fine Option
The Chair: We have more than exhausted our time. Minister Swan and Ms.
Gervais, thank you for your contribution to the committee's deliberations. It is
very much appreciated.
As our next panel, representing the Canadian Bar Association, we have Ian
Carter, Representative, Partner, Bayne Sellar Boxall; and Tamra Thomson,
Director, Legislation and Law Reform.
I understand, Ms. Thomson, that you will lead off today. The floor is yours.
Tamra L. Thomson, Director, Legislation and Law Reform, Canadian Bar
Association: Thank you, Mr. Chair and honourable senators. The Canadian Bar
Association is very pleased to appear before you today on Bill C-37, an
important bill that is now before you.
The Canadian Bar Association is a national association representing over
37,000 lawyers across Canada. The letter that you have received was prepared by
the Criminal Justice Section and by the Aboriginal Law Section of the CBA. Mr.
Carter is a member of the Criminal Justice Section executive and brings with him
experience as defence counsel in Ontario and in British Columbia.
I did want to mention something about the Criminal Justice Section before
handing the mike over to Mr. Carter. It is unique among the criminal justice
groups in Canada in that both Crown and defence lawyers are represented in the
group and very active and vocal in putting together the letters that you see
before you. They bring that joint perspective to any of the bills that come
before the Senate.
I will ask Mr. Carter to expand on some of the points that are in the letter
Ian Carter, Representative, Partner, Bayne Sellar Boxall, Canadian Bar
Association: Thank you very much, Mr. Chair and honourable senators. There
has been a lot of material placed before this committee already, and I do not
intend to go over all of that. You have before you a lot of well-researched
material. What I can maybe bring to the debate, which is a little different, is
my experience as a practitioner in the trenches.
I appear at the Ottawa courthouse at 161 Elgin Street on almost a daily
basis. To highlight the CBA position with respect to this proposed legislation,
I thought I would offer two contrasting examples of what is good about the
legislation and what we view as potentially problematic. I have based these
examples loosely on individuals I have encountered within the criminal justice
First, take the example of an individual pleading guilty to an impaired
driving charge. That is a common occurrence you will see in any court across
this country on a daily basis. In this scenario, we will call him Richard.
Richard is a bank manager and has never been in trouble with the law before. He
is remorseful about his actions, willing to accept his punishment and move on
with his life. He will come to guilty plea court in the basement of the Elgin
Street courthouse and wait his turn to be sentenced, along with 30 or 40 other
people in the gallery or in custody at the jail facilities at the court building
also waiting their turn to be sentenced. The sentence has been agreed on in
advance between Crown and defence lawyers, as is often the case. It will be a
$1,200 fine and a 12-month driving prohibition.
Since it is a joint position between counsel and there is a long list of
people waiting to plead guilty and court resources are limited, very little
information about Richard will be placed before the court. There is enough
information there for the judge to know that Richard can pay the victim fine
surcharge, so it will be ordered, albeit without much fanfare.
Given the speed with which proceedings must move and the long queue of
individuals waiting to plead guilty that day, Richard will have little
understanding of what the victim surcharge is or where the money goes. It is the
mere fact of his conviction, the larger fine and the driving prohibition that
will have the biggest impact on his behaviour in the future.
Nevertheless, Richard can afford to pay, and the money goes to a good cause.
It will help victims, even if they are not directly involved in his case. That
is why the CBA supports the victim crime surcharge in principle. In this
scenario, it simply makes sense.
In contrast, a woman waits her turn at the back of the courtroom. We will
call her Joanne. She will be pleading guilty to communicating for the purpose of
prostitution, having been picked up in the most recent police sweep of the
market. She is a young Aboriginal woman raised in extreme poverty who has been
subjected to repeated abuse at the hands of her father. She is missing her front
teeth from when her father kicked her in the face while she was still a young
girl. She sits with her two young children, four and two years old, at the back
of the courtroom because she has no one to care for them when she comes to
court. Her father is not in the picture. She has turned to prostitution to make
ends meet. She cannot afford a lawyer and will not qualify for legal aid because
she is not facing a jail sentence. Instead, she will be represented by an
overworked duty counsel at the courthouse.
The judge that morning is sympathetic. She will be giving her a conditional
discharge so that she is not saddled with a criminal record for the rest of her
life. This judge has seen hundreds if not thousands of Joannes over the span of
her time on the bench. She knows, in her experience, that the mandatory fine
will be onerous for Joanne. It will be punitive and unnecessary given the
victimless nature of the crime. In fact, Joanne herself has been the victim of a
crime many times before. The judge also knows that Joanne may turn to
prostitution as a way to pay for it. In other such cases, she has waived the
victim fine surcharge. Under the new legislation, she has no choice; it must be
We need to be honest about this now-mandatory surcharge. It is a flat tax
imposed on a member of society who is least able to pay for it. The resources
that will now be deployed to collect the surcharge will far outweigh any benefit
to be had from having made it in the first place. Joanne does not drive, so her
licence cannot be removed, and there is no Fine Option Program here in Ontario.
The only option to collect is the warrant of committal. Our finite judicial
resources are wasted hauling Joanne before the courts yet again, only to have
her demonstrate what was obvious at the time of her original sentencing, that
she cannot pay the fine. She must do this in order to avoid going to jail. All
of this could have been avoided if only the sentencing judge, aware of all of
Joanne's circumstances, had had the discretion to waive the surcharge in the
The reality of our criminal justice system is that there are far more Joannes
than there are Richards. It is for that reason that the CBA supports the victim
fine surcharge but opposes making it mandatory in all cases irrespective of
The Chair: Thank you. We will begin questions with Senator Fraser,
deputy chair of the committee.
Senator Fraser: Thank you both for being here this afternoon. I was
particularly interested in the passages in your submission on vulnerable
Canadians and Aboriginal offenders. You draw attention to the fact that many
people — I do not know how many or what the proportions would be, but we all
know that it is a significant number of people — end up in trouble with the
criminal law because of poverty, mental illness or cognitive disabilities, which
you go on to say renders them unable to pay even a modest sum. You also draw
attention to the situation of Aboriginal offenders, which raises, of course, as
my colleague Senator Jaffer said with the previous witness, a question of the
principles. Do you think, as it now stands, that this bill is in conformity
with the Charter, particularly in light of those circumstances?
Mr. Carter: There is a potential issue with section 12 of the Charter
with respect to cruel and unusual punishment in the sense that it is mandatory.
In many cases, the totality principle in sentencing — that is, looking at the
offender, the offence, the individual circumstances and judges being able to
craft a particular sentence that suits that — is taken away and replaced with a
one-size-fits-all approach, i.e., a monetary fine. Sometimes a fine is not the
best approach to treating an offender. It does not bring home the message and
does not serve its purpose or it can be too onerous, either side of it. The
difficulty is there is no way around it and it must be imposed in all cases.
To give an example, a mental health court has been set up in Ottawa solely to
deal with individuals that have mental health issues because a huge number of
people come before the courts. There are people that commit lots of fairly minor
crimes, such as mischief and trespassing. They trespass at the Rideau Centre and
go back there to panhandle, they get picked up again, for the thirtieth or
fortieth time. When they are in there for sentencing, because these are people
that live on the streets, the whole point of mental health court is to get them
the resources they need and to tailor the response to their actions. The problem
with the fine is that these people have no money. It is completely out of
proportion with what needs to be done to assist these individuals. In that
sense, there is a potential issue.
Senator Fraser: Trespassing is not a Criminal Code offence, is it?
Mr. Carter: Well, there is trespass at night. That is a different
issue. What one sees happen is individuals who have trespassed before going back
onto the property. There are mental health issues, and they argue with the
security guards, create a scene and are charged with resisting a peace officer.
They are charged with mischief, causing a disturbance, for yelling or swearing
at the Rideau Centre. That is the litany of charges you see time and time again
for these individuals. They may not even realistically understand what the fine
is when they go into court, and they certainly have no ability to pay it.
Senator Fraser: If there were grounds for a Charter challenge, what is
the likelihood that such a challenge would indeed be launched, considering that
we are really only talking about, in the grand scheme of things, relatively
small sums of money?
Mr. Carter: It is difficult to say. The reality is that anyone who can
privately retain a lawyer will be able to pay the fine. You are dealing with
someone who is on legal aid, probably not duty counsel because they do not
actually litigate cases other than doing quick pleas in court. If the
circumstances of the fine were going to be an extreme hardship, is a lawyer
willing to take it on? The reality of legal aid is they will be paid a tiny
portion of the fees it would cost to bring a constitutional challenge, but the
reality is also that there are a lot of lawyers out there who will do it.
Senator Fraser: Really? Interesting. Thank you.
Senator Boisvenu: Thank you kindly for your comments. The Ombudsman
for Victims of Crime appeared before the committee with a brief further to our
study of this bill. We learned that 80 per cent of the costs associated with
crime were borne by victims, unlike the many cases in which criminals receive
legal aid much more freely. Victims often have to pay for their own
representation in court.
In your association, what is the percentage of lawyers who represent victims?
Mr. Carter: A victim, in terms of a trial itself or even on
sentencing, is not often represented by lawyers. What we have, for instance, in
Ottawa, which is probably far more effective than having a lawyer, is the victim
assistance office. Any victim of a crime will be put in touch with the Victim
Witness Assistance Program, or VWAP, as we call it, and they will receive those
resources right away. They will have representation. They will be interviewed by
that program and given the ability to fill in a victim impact statement that
will be presented at sentencing so their voice is heard. They will have the
ability to speak, if they want. VWAP will come down and walk them through the
process. In fact, when we do sentencing, they are often there in the courtroom.
They will wait with them in the hallway. They receive quite good service, which
is why the CBA supports the victim surcharge in principle; it serves good. It
serves to create a balance in the system. The difficulty is imposing it in all
Senator Boisvenu: The fact of the matter is that, in our system, Crown
prosecutors, who work out settlements before the courts every day, are the ones
closest to victims of crime. Do many Crown prosecutors belong to your
Ms. Thomson: The Criminal Justice Section has a good balance of
defence counsel and Crown counsel. I do not know the percentage of lawyers in
each camp, if you will, who are members of the association. However, the
leadership of the section and the people who work on the submissions are a
balance of defence and Crown.
Senator Boisvenu: Could you tell us, without divulging any
confidential information from your consultations, whether the views of your
members were mixed? Where did Crown prosecutors stand? Were they more in favour
of the bill than those who were more likely to represent criminals and were
therefore against the bill? Was that a debate you observed, or was your entire
membership against the bill?
Mr. Carter: I can address that briefly, and I will return also to
address the initial question.
On the executive right now, it is about 50/50. Within the larger group of
officers, I would say it is tilted slightly in favour of Crowns right now; I
think we have about 60/40. The last meeting I attended, which was here in
Ottawa, was in October. In October, it was a concern raised by all parties
involved, and I do not recall any voices coming from Crowns that were opposed to
us taking the position of concern about discretion.
In general, my experience in dealing with Crowns is that mandatory minimums
of any sense — really, that is what this is, which is to say mandatory in all
cases — create problems for them in terms of how to resolve the case and fashion
an appropriate response. Any time there is a one-size-fits-all solution, in my
experience, Crowns do not like that.
Senator Jaffer: Mr. Carter, I want to thank you for the way you
portrayed Joanne and Richard. It certainly brought it home to us, but it
reminded me of my younger days when I practised in those courts the reality of
what you are dealing with. I thank you for that.
I have a number of questions. First, due to the repeal of subsection 737(5)
of the Criminal Code, as you have said, the sentencing court will no longer be
required to consider an individual's personal circumstances. I find this very
difficult. You have addressed it a little bit.
The sentencing principles are meant for that person who is in front of the
judge. It is not a cookie-cutter approach; it is not the same for everyone. This
surcharge is a cookie-cutter approach and I feel it goes away from the
sentencing principles of deterrence, separating, desisting, reparation and a
sense of responsibility. Can you comment on that, please?
Mr. Carter: I think I would agree with those comments, and I would say
it will be felt most in the cases where no fine is imposed. Part of the
legislation deals with a percentage that goes on top if the fine is imposed. A
judge will not impose a fine unless the offender has the ability to pay, unless
it fits the nature of the crime. At that point, you can factor in the totality
principle to say, ``Well, we know there will be a 30 per cent surcharge on this.
When I am calculating the fine, I think it should be this much in terms of
ability to pay.'' The problem arises in cases where you are not putting a fine
on already, because you are not making a determination of whether there is the
ability to pay.
In the case of Joanne, for instance, the judges found a conditional discharge
was appropriate, which means they pleaded guilty. However, at the end of a
period — typically 12 months — they are deemed not to have been convicted. It
makes it easier in terms of criminal record checks for the future, and it is a
reflection of the rehabilitation principles.
The judges who determine that is the appropriate sentence and would not
otherwise impose a fine must now impose a fine automatically, and it is not
tailored to the situation and it will be onerous. In that sense, it departs from
the totality principle and goes away from the principles in sentencing that a
judge would normally look at to apply to an individual case.
Senator Jaffer: My colleague Senator Fraser covered this, but I would
like you to further expand. Could this surcharge be considered cruel and unusual
punishment? Is it in violation of section 12 of the Charter?
Mr. Carter: That is not an easy question to answer. The jurisprudence
on section 12 is complex. It very much depends on the individual circumstances.
If an applicant can demonstrate under the individual circumstances of a case
that it creates a cruel and unusual punishment in the sense that it is well
above what the person should ordinarily be sentenced to and is creating some
kind of onerous restriction or hardship, then, yes, it could potentially run
afoul of section 12. However, it is difficult to say without a concrete example
that comes through the court system, to be fair.
Senator Batters: So that I am clear, under the scenario that you
described about Joanne, the amount that she would currently be subject to paying
under the victim surcharge would be $50, if it was ordered. This particular act
would increase that to $100.
Mr. Carter: Yes.
Senator Batters: Would you say that a viable case could be made that
someone could be unable to pay $100, even if they were given time to make
payments by installments?
Mr. Carter: In my experience representing all sorts of individuals
over the past 10 years, their experience in the world they come from is totally
different from my own. Therefore, when I look at it and probably when many of us
look at it, we say ``$100 is not very much.'' Individuals often live hand to
mouth. They are in debt. They steal to make money. Even individuals who are on
ODSP, which is a disability program, or on welfare or government assistance of
some sort often find that they cannot make their payments from month to month,
The short answer is, yes, $100 for these individuals can make a big
Senator Batters: There is another area of questioning I would like to
explore with you briefly. Ontario does not have a Fine Option Program. Is the
Canadian Bar Association doing any lobbying of the provincial government of
Ontario to institute a Fine Option Program, as so many other provinces have,
such as my Province of Saskatchewan?
Ms. Thomson: I am not sure if our colleagues in the Ontario office are
lobbying the Ontario government, but we can find out for you.
Senator Batters: Yes, that would seem to me to be a good option here.
That would alleviate the problems of a person like Joanne if they were able to
participate in a Fine Option Program to work off that $100 amount.
Senator Fraser: May I ask a quick supplementary question, chair?
The Chair: We have quite a long list here.
Senator Fraser: It is very quick.
The Chair: As long as the response is quick as well.
Senator Fraser: If the mentally ill person you discussed is found
guilty on several charges, the fine is imposed on each charge, is it not? That
is how I read the bill, but I may be wrong.
Mr. Carter: My understanding is they receive one victim fine surcharge
for the set. If they plead guilty to four charges, it will be one fine. That is
how it is now.
Senator Baker: Ms. Thomson mentioned that Mr. Carter represented the
Province of British Columbia in the defence bar and appeared many times before
the Court of Appeal of British Columbia. He recently did so here in Ontario
before the Ontario Court of Appeal. He is to be congratulated for his service. I
thought he was a much older chap than he is, to be honest with you. He has 30 to
40 reported cases.
Mr. Carter is absolutely correct. As far as trespassing is concerned, those
people he mentioned would be charged under subsection 179(2) of the Criminal
Code, which is found loitering, vagrancy. It is commonly referred to as
We heard earlier today from a witness representing the Province of Manitoba.
He told us that they were not going to seek a jail term for people who could not
pay their fines. Do the witnesses have any idea on how that could be instituted?
If we are talking about the Criminal Code, it would be a provincial Crown. It
would be a federal Crown if we are talking about the Controlled Drugs and
Substances Act. Would a direction go out, and have you heard about a direction?
I know there is a Crown manual in Ontario that instructs the Crowns, for
example, that on impaired driving, which you mentioned, after five years, the
previous occurrence would not be noted. Crown books are produced. Is that the
way you would interpret the Manitoba minister's phrase? How could he influence
the provincial Crowns to behave in a certain manner? Can he do that? How would
he do it, in your estimation?
Mr. Carter: There are Crown policy manuals. There is one for the Crown
here in Ontario. When I practised in British Columbia as well, there was a
policy manual. They can set out direction for Crowns to take. Typically, the
directions involve issues surrounding mandatory minimums, for instance, saying,
``We do not want you to negotiate around a mandatory minimum.'' They tend to be
phrased like that. I have not seen too many directions where they are urging no
prosecution. It is possible. I have not seen many of them.
Senator Baker: In sentencing, normally the people who appear, as you
pointed out, are people of very small means. The relative majority are very poor
people who appear before court under the Criminal Code and the Controlled Drugs
and Substances Act. The provincial minister who gave evidence recently before
this committee would have no control over a case where someone is charged with
this and this and this under the Controlled Drugs and Substances Act, and in the
mix it came out that he or she did not pay a victim surcharge previously and
that is all in the consideration. The provincial minister would have no control
over the federal Crown, would they, in sentencing on suggesting whether things
should be fines or jail terms?
Mr. Carter: No.
Senator McIntyre: I simply wish to address with you the application of
the victim surcharge. We know that offenders found criminally responsible, as
opposed to offenders found unfit to stand trial or, if fit to stand trial, found
not criminally responsible on account of mental disorder, face the victim
surcharge, or Fine Option Program if available. My understanding is that the
Fine Option Program is not available in Ontario. In your opinion, should persons
found criminally responsible but suffering from mental issues be absolved from
paying the victim surcharge or participate in the Fine Option Program, if
Mr. Carter: It all depends on the individual circumstance. Some
individuals have mental illness that flares up. Often, if they are treated
through doctors and through our mental health court system, for instance, there
can be an assessment and a treatment order where they go to the Royal Ottawa
Hospital, and then there are medications if they are bipolar or schizophrenic.
The situation is brought under control. When they are under control, they are
otherwise productive members of society and earn an income. If that is their
position, if their mental health issues are not precluding them from earning an
income, then there is no reason the fine should not apply to them.
On the other hand, the reality is that the vast majority of them are in
circumstances where they are living in shelters and CMHA workers come to visit
them to make sure they get to court and get to their medical appointments. Their
ability to process that they have a fine and get there and pay it, even if they
had the money to pay the fine, as opposed to using it for food or medication
that they need, is difficult for them. These people would not necessarily be
able to be placed in a work program in any event. That will be a problem. It
depends. The whole point is that there is not one size fits all. I am not saying
that all people with mental health issues should be absolved from paying the
fine. It would depend on the individual circumstance.
Senator McIntyre: The picture is clear if the offender is found unfit
to stand trial or if fit to stand trial and not criminally responsible on
account of mental disorder. However, it appears to be unclear if the person is
found criminally responsible but suffering from mental issues. That is my
opinion. I think you have answered the question.
Mr. Carter: I would add that within mental health court, and they see
a steady stream of people, a tiny majority come back as unfit. It is miniscule.
In terms of being not criminally responsible, it is still a small percentage.
Most of the people in the mental health court system are pleading guilty to
these charges on a regular basis. They are criminally responsible, but their
mental health is causing issues in their life. At the time, the strict test that
must be met to demonstrate that you are what we call NCR, not criminally
responsible, is often not met, in my experience.
Senator Joyal: Mr. Carter, Ms. Thomson, I want to refer to a sentence
in the letter that you sent to our chair dated January 21. It is the third
paragraph on the first page, the last line. You write:
A judge must provide reasons if the surcharge is waived.
Of course, you refer to section 737(6) of the code, and I will read it:
When the court makes an order under subsection (5), the court shall state
its reasons in the record of the proceedings.
We have been told that one of the reasons for the origin of this bill is that
the judges really do not impose the surcharge because they do not have time, and
then of course it means that the surcharge is not considered being really
compulsory. From your experience, why do you think the judges do not write in
the record of the proceedings the reasons why they waive, which explains
everything we are discussing here today?
Mr. Carter: In my experience, in most cases where it is waived, there
is an explanation. Most judges give an explanation. Now, in many cases, it is
brief. I am not going to pretend it is a long treatise. The reality is that
there are 40 or 50 people waiting in line in plea courts. They are overtaxed. If
a trial collapses in another courtroom, another judge becomes available and
tries to take some of that. Some clients would sit around all day and not get
reached. There is a recognition that things have to move. There is what is in
the Criminal Code and the procedures are set out, and then there is the reality
of how quickly it has to move once you are in court.
In my experience, if I am in doing a plea for an impaired driving charge, I
am not sure that the victim fine surcharge has ever been waived for a client.
The judge will simply indicate obviously this man has a job; he has a vehicle;
victim fine surcharge imposed. Similarly, where you have just presented your
sentencing submissions in front of a judge, and say I am presenting Joanne's
situation, the Crown will read in the facts. I then stand up and give all of her
background on the record, and it is patently obvious at that point that she has
no ability to pay. The judge will often say, ``The victim fine surcharge is
waived; it is clear this offender has no ability to pay.'' You have to read
those comments in conjunction with the entire record. If you just parse that
out, it will seem brief, but it is in response to everything said before in
submissions, which is part of the sentencing process.
Senator Joyal: Yes, but on the other hand, as I am saying, it is not
written down in the record except that it is waived. The reasons are not in the
record, hence the conclusion that it is waived automatically. That is the
perception that has been created, and that is the perception we have been told
explains the fact that the surcharges are not imposed. How should we address
that if we want to maintain the waiver option in the bill?
Mr. Carter: I return to the fact that all judges are aware of the
victim fine surcharge. Occasionally, in a busy court, I have seen a judge forget
it, and the clerk of the court will turn and say, ``Your Honour, what about the
victim fine surcharge?'' The judge will them turn his or her mind to the issue,
and it will be obvious from the record again. I can only speak to my personal
experience: I see there are brief reasons, but they are responsive to the
If there is a broader concern, and one of the things I saw raised reading
transcripts of earlier proceedings is that judicial education is the way to go.
I cannot speak to what happens in Manitoba or Saskatchewan, but I can say from
my own practice that the reasons are there, they are brief and they are
responsive to what is occurring. If there is a problem elsewhere, it can be
addressed through judicial education rather than throwing the baby out with the
bathwater by removing discretion altogether.
Senator Joyal: As I said, the code is quite clear. It states its
reasons, so it is more than just waiving the surcharge. You have to explain,
more or less, with some element of the reasons, which we did not have in the
file in those days because, as you said, the pressure is there in that a number
of people are waiting in the corridor and the judge has the impression from the
oral pleading that that person does not have the capacity to pay and he will
waive the surcharge.
Mr. Carter: In most cases I have seen when the surcharge is waived, it
is clear this offender has no ability to pay. It is normally a two-line
sentence. There is an explanation and it is brief.
When you read appellate decisions about judges giving reasons, the provincial
courts of appeal as well as the Supreme Court of Canada have been clear. There
is recognition of the busy courts, and your reasons do not have to be fulsome in
the sense that they respond to everything that goes on. You look at the entire
record, the submissions that were made, and how well it responds. If everything
is set out by defence counsel about the financial circumstances and the Crown
takes no issue with what is presented, it will be clear that the offender has no
ability to pay. One line, in my respectful submission, would be sufficient in
terms of providing reasons. That is how reasons occur.
Senator Dagenais: My question is for Mr. Carter. There will always be
exceptions that could justify not moving to hold offenders accountable to
victims. I agree with you. That being said, how would you suggest we make
offenders accountable instead of putting the burden on taxpayers?
Mr. Carter: I cannot propose an entire piece of legislation and
determine all of the financial issues. That is not really my task here. All I
would say is that the CBA recognizes the good that is done through these
programs. The Crown members in our organization rely heavily on victim witness
assistance programs in terms of getting their job done and giving some victims
the say in court proceedings. Traditionally, they have been alienated to some
degree. We recognize that. The question is, do you fund that by imposing it in
all cases so you are imposing it on people who are least able to pay? I say no.
Senator Batters: Your experience, as you have stated, about how the
proceedings go down, is your experience in Ottawa, in Ontario, and perhaps in
B.C. However, you would acknowledge that may not be happening elsewhere in
Ontario and throughout Canada as well. We are hearing calls from provincial
justice ministers who are hearing, I am assuming, from their Crown prosecutors
that these types of things are not happening in court and they are routinely
being waived rather than providing reasons. It must be happening in cases as
well where people are able to pay but are not getting these surcharges added to
their sentences. Is that right?
Mr. Carter: I cannot speak to every jurisdiction. I could not say that
no problem exists in every jurisdiction. I would not be able to say that.
The Chair: Thank you both for appearing today. We very much appreciate
We now begin our hearings on Bill C-309, An Act to amend the Criminal Code,
dealing with the concealment of identity. The first witness to begin the
proceedings is the sponsor of the legislation in the House of Commons, Blake
Richards, the Member of Parliament for Wild Rose.
Mr. Richards, welcome to the committee.
Blake Richards, M.P., Wild Rose, sponsor of the bill: Thank you, Mr.
Chair. It is a pleasure to be here today to speak on my private member's bill,
Bill C-309, and to outline to you the provisions and the outcomes that I believe
it will achieve.
Over the past few years in cities across Canada, whether it be Toronto,
Vancouver, Montreal, they have all fallen victim to violent riots. These events
often begin as peaceful demonstrations or public gatherings, only to be
escalated by masked criminals hiding in plain sight.
The intent of my bill is first to deter these occurrences. Second, the bill
will help police officers ensure public safety by providing them with new tools
to prevent, de-escalate and control riots and unlawful assemblies when they do
happen. It will also ensure that those who engage in violence and vandalism
during such events are more easily identified, charged and brought to justice.
My bill will achieve this by making it a new Criminal Code offence to wear a
mask or to otherwise conceal one's identity when police are working to control
an unlawful assembly or a riot.
Measures that strip criminals of the ability to hide in plain sight, in the
midst of public disturbances, will provide a strong deterrence to engaging in
other criminal acts. It would also allow police to intervene and to arrest those
who wear masks in defiance of the law, defusing tense situations and ensuring
that private citizens and public and private property are protected.
The need for this legislation cannot be overstated. In the G8/G20
demonstrations three years ago, a breakaway group of violent protesters caused
$2.5 million in damage to Toronto businesses and destroyed four police cruisers.
Overall, 97 police officers and 39 private citizens were injured. To date, fewer
than 50 offenders have been convicted of a criminal offence.
The riots in Vancouver in 2011 were even worse. Rioters caused at least $3
million in damages to 89 businesses and to property of the City of Vancouver,
including the destruction of almost 40 police vehicles. The investigation that
followed, hampered by the difficulty of identifying masked suspects, has cost
Vancouver police in excess of $2 million over and above their normal operating
costs. Despite the great work of the Vancouver Police Department in identifying
over 15,000 separate criminal acts, very few were actually charged.
Despite a heavy media presence, access to closed circuit TV cameras, and a
proliferation of mobile devices, many criminals have been able to escape justice
for their misdeeds.
These two incidents stand in sharp contrast to the riot at Fanshawe College
in London, Ontario, in March of last year. This event, involving about 1,000
people, caused an estimated $100,000 in damages. When I spoke with London Police
Chief Bradley Duncan, he confirmed that the rioters did not conceal their
identities, and as a result, in just over a month, London police were able to
identify and charge 42 individuals with 103 offences.
It is clear that the measures proposed in my bill are sorely needed. I have
met with police officers and police chiefs all across our country. In Vancouver,
Victoria, Calgary, Toronto and elsewhere, all of them have expressed their
support for this bill. They believe that not only will it help police to
investigate the aftermath of riots, but that it will most importantly defer
disturbances from happening and becoming so dangerous in the first place.
I would like to quote from Victoria Police Chief Jamie Graham, who said:
I welcome any legislation that reduces the potential for violence at public
gatherings. . . . This bill is a meaningful step towards preventing those
with violent intent from hiding behind disguises, masks and facial
Last year we saw lawful student demonstrations in Montreal turned violent by
a small criminal minority who were concealing themselves to avoid detection.
Police and journalists were assaulted, stores and other private property were
vandalized, and more than 2,500 people were arrested.
Lieutenant Ian Lafrenière of the Montreal police told media that some
protesters were using what we call ``Black Bloc'' tactics, masking their faces,
coordinating as a group and using weapons they had hidden along the protest
Mr. Chair, it is not just the police and civil authorities of our major
cities who are asking for these measures. As you will hear from knowledgeable
witnesses during your hearings, the aftermath of a riot can have devastating
consequences to a local economy. You will be hearing from business leaders in
our cities who have been victimized by the actions of rioters and who believe
that Bill C-309 is a needed piece of legislation to help prevent them from being
victimized again in the future.
The Downtown Vancouver Business Improvement Association is composed of member
businesses that were hardest hit by the riot in that city and their members
unanimously support my bill. To quote from their resolution:
June 15, 2011 is a dark moment in our city's history that traumatized
thousands of residents, employees and hard-working business people. The
property damage incurred that evening combined with the looting that took
place is in the millions of dollars. Vancouver's picture postcard image was
sullied by the actions of reckless and irresponsible individuals who have no
respect for the laws of our country.
Further, the Building Owners and Managers Association of British Columbia, at
a Board of Directors meeting, also endorsed Bill C-309. BOMA B.C. represents
more than 400 corporate members that own or manage commercial real estate in the
province of British Columbia, many of whom suffered loss in the Vancouver riot.
In their letter to me advising of their unanimously supported resolution,
Downtown Vancouver building owners and business tenants were seriously
affected by the June 2011 post hockey riots. We believe this proposed
amendment will be a valuable enforcement tool going forward to mitigate
damage from any future unlawful acts of violence during riot situations.
I am also aware that some of my colleagues in the opposition have opposed
this bill because they believe it would impair a citizen's right to protest. Let
me be clear: These measures do no such thing. When a protest, or any other
public gathering for that matter, devolves into an unlawful assembly or a riot,
it is by definition a Criminal Code offence to which individuals are subject to
sanctions if they choose to participate. In fact, I believe that Bill C-309
actually helps maintain the rights of all citizens to peaceful protest by
providing a way to deter or deal with those who would use the cover of an
otherwise peaceful assembly to engage in criminal acts.
Bill C-309 is a measure that police, law-abiding citizens and businesses have
been asking for. It will help defend Canadians and their livelihoods from
senseless violence while helping to maintain the right of all citizens to
peaceful protest, which is consistent with our government's commitment to
Canadians and law-abiding citizens, and to keep our communities safe from
I would like to close my remarks by urging you and your esteemed colleagues
in the Senate to listen very closely to what the citizens of the neighbourhoods
torn asunder by these riots are saying. The support I have received from
citizens in those communities is inspiring. They are asking you to give our
police a crucial tool to do their jobs, to protect the public and to return
safely home to their families. This tool does not restrict citizens' rights to
expression or to peaceful assembly, which is protected under the Charter of
Rights and Freedoms; it simply fulfills the Canadian government's first
responsibility: To protect Canadian citizens. Our nation is demanding a
long-term solution, and that is what Bill C-309 offers.
Thank you. I look forward to the questions.
The Chair: We will begin questions with the deputy chair.
Senator Fraser: Thank you for being here, Mr. Richards.
Let me say at the outset that I am from Montreal, which has seen more than
its share of riots. I have also elsewhere seen riots resulting in death. I am
not in favour of riots or rioters.
This bill, however, strikes me as unnecessary. The Criminal Code already says
in subsection 351(2) that it is an offence punishable for a ``term not exceeding
10 years'' to have your face ``masked or coloured or . . . otherwise disguised''
if you do so with the intent of committing an indictable offence. The code also
says in section 65 that mere participation in a riot is an indictable offence.
Therefore, if you are wearing a mask in the middle of a riot, you are already
committing an indictable offence under the Criminal Code. I fail to see why we
need this bill.
Forgive my strong language but I am trying to elicit a response here: I have
difficulty with bills that seem to be basically feel-good but that do not
actually do anything.
Mr. Richards: I would certainly disagree with your characterization of
it being such.
I will first address your point about subsection 351(2) of the Criminal Code.
Police across the country, particularly those who have dealt with riot
situations, tell me very clearly that this section is very difficult to apply to
a riot situation because it was written specifically to deal with armed
robberies and those kinds of situations. It was not intended to deal with this
type of a situation. There was clearly a need for this provision, given that
As you have indicated, it is a criminal offence to participate in a riot or
to participate in an unlawful assembly. Police clearly identified to me the
problem they were having. We have all seen it; it has been very clear from media
reports and elsewhere when we see these instances occurring on a more regular
basis. There is obviously a problem that needs to be dealt with there.
This has emerged from talking to police to determine what it is that they are
lacking in their toolbox now that will allow them to help prevent these
situations from occurring. Let us face it: Avoiding those kinds of situations is
They told me that they were often seeing a very small group of individuals
coming to a peaceful assembly. It could be a protest or it could be a hockey
game, as happened in Vancouver. It could be all kinds of gatherings where there
is a large crowd. They are not individuals who are there to make a political
point. They are not hockey fans. They are not there for any other reason than to
try to cause trouble. Police will tell you that these individuals will come
prepared with a bag. In it they have black clothing, a mask, hammers to break
windows, marbles to throw under the feet of the police horses, and objects to
start fires with. They are clearly not there for any purpose other than to cause
Police often witness these people disguising themselves clearly with the
objects they need to cause trouble. They then mix into the crowd. Later on,
these individuals are able to doff the disguise and sneak away.
When that trouble begins, this will allow them to bring charges to bear.
Senator Fraser: I do not see how it is different from what already
exists. Under your bill, the person has to be committing the offence of
participating in a riot while wearing a mask. This does not allow for preventive
arrest. This says you already have to be doing what the Criminal Code already
says you cannot be doing.
Forgive me but I am just really confused here.
Mr. Richards: It is the deal with those individuals who come looking
to start trouble. They have come prepared with that kit. The police are well
aware of who these individuals are; they have their kit, and they are able to
First, I want to stress this again because I cannot stress this enough: The
hope is, and police believe this and I believe this, that it will have a
deterrent effect on those individuals who come looking for trouble, because they
will recognize there are serious consequences to those actions. That is the
first hope of everyone involved, and I believe that we will certainly see these
kinds of instances occur far less frequently. We will also see less damage to
property and to businesses, and fewer injuries to citizens. That would be the
ideal hope, and it is one that I believe can be accomplished. If and when these
situations do occur, it gives police another tool to be able to de-escalate the
Senator Fraser: I have yet to hear from a police officer who did not
say, ``It is another tool; we are glad to have it.'' Of course, it will not
solve the problem.
I understand where they are coming from. I cannot imagine the difficulty of
being a police officer in the circumstances you outline. I just do not see how
this bill will change anything.
Senator Plett: Thank you, Mr. Richards, for being here. As you know, I
am sponsoring this bill in the Senate, so you have my support.
Having said that, I also have a concern that we do the right thing. This bill
creates new offences for individuals who conceal their identity during a riot or
an unlawful assembly without lawful excuse. Would you define a ``lawful
Mr. Richards: I appreciate your sponsorship and support.
That is a very important question. ``Lawful excuse'' could mean a number of
things. It could mean head coverings that someone wears because of their
religion. It could be medical bandages that are required by a doctor. Those are
a couple of examples that would certainly meet those provisions.
The goal of the bill is to ensure that the individuals being targeted are
those who are there to cause trouble. That is the reason for the ``lawful
excuse''; you want to ensure that the rights of people who have a legitimate
need, whether it be medical bandages or religious head coverings, are protected,
and certainly they are.
However, the individuals who are there to cause trouble — as I described
earlier, the folks that come with a tool kit including a disguise and a mask —
are deterred from participating in that behaviour. The unfortunate part often is
that these things are usually started during a legal gathering of some type. It
could be a protest or, as in the case of Vancouver, a hockey game. It could be
any number of things where there is a large crowd. The vast majority of people
are there for a legitimate reason and want to be able to enjoy their right to
freedom of assembly. Then you have a small group of individuals who come looking
to start trouble and are able to blend in because of the large crowd.
Unfortunately, what happens is the point of the gathering is lost and those
individuals lose their right to freedom of expression and assembly because of a
Senator Plett: I appreciate that. Let me use an illustration. I
understand the Black Bloc and their methods, and I do not think it is hard to
determine that they are there for other than the good reasons of demonstrating.
The new offences would incorporate the defence of lawful excuse with the result
that a person would not be convicted of offences in the bill if they wore the
mask for safety and security reasons or because they observe religious rights.
You have talked about that.
As you have correctly said, most of these things start innocently and then
the Black Bloc comes in and they create havoc. Senator Fraser has talked about
the student riots in Montreal. Someone goes into one of these student riots
wearing a head covering for religious reasons and the riot breaks out. Under
this law, what does that person do? Do they then have to make sure they get
themselves out of there as quickly as they can, or could they fall under this
provision? Will people use that as a reason by putting on a head covering that
would appear to be for religious purposes rather than the Black Bloc head
Mr. Richards: The individual who legitimately, for religious or other
reasons, such as a medical bandage — because of the lawful excuse provision,
this would not apply to them. However, certainly with section 65, if it was an
unlawful assembly or section 66, if it was a riot, the Criminal Code would still
apply. The provisions that exist in the Criminal Code now, if they are
participating in that unlawful assembly or riot, they can be charged under those
provisions. However, under the provisions in this bill, they would have lawful
Does that mean that they should continue to participate in a riot? No, they
could still be charged under those provisions. Under the provisions of this
bill, if you have a lawful excuse such as the ones you have mentioned, you would
not face prosecution.
Senator Jaffer: What is the legal definition of ``lawful excuse''?
Mr. Richards: Again, I believe that when you look at lawful excuse,
clearly something like a religious head covering would apply there, or a medical
Senator Jaffer: You have already covered that. Is there a legal
definition for ``lawful excuse''?
Mr. Richards: ``Lawful excuse'' would be something determined at the
trial. It could be determined prior to that as well, in police discretion.
Senator Jaffer: If you are wearing a mask near a riot and you have not
committed an offence, there would be no charges, right?
Mr. Richards: If you are participating in a riot —
Senator Jaffer: No. If you are wearing a mask, are near a riot and are
not participating or committing any unlawful act, you would not be charged,
Mr. Richards: Yes. To be clear, whether it is section 65 for unlawful
assembly or section 66 for a riot, the provisions in this bill only apply under
those provisions of the Criminal Code, and that would mean that there is an
unlawful assembly or riot. If you are at a peaceful gathering, whether it is a
protest or otherwise, wearing a disguise for parody reasons or whatever it might
be, this bill would not apply to those individuals. It only applies to people
participating in an unlawful assembly or a riot.
Senator Jaffer: I was interested in your opening remarks where you
mentioned a number of police officers who support the bill. I come from
Vancouver, and it is not that I do not support the bill, but I think it is
already covered in subsection 351(2) of the Criminal Code. You and I obviously
disagree, and I do not want to go there.
I was interested in the fact that you said there was a challenge of charging
people, and I will talk about my city, Vancouver. Do you know the percentage of
people wearing masks causing these unlawful acts?
Mr. Richards: I cannot give you a percentage. In fact, I do not have
hard numbers in front of me. Police have indicated that they documented over
15,000 separate criminal acts, and the vast majority of those they were unable
to determine the individuals involved. In most instances, that was because they
were disguised in various ways, but they were certainly disguised.
Senator Jaffer: That is what the Vancouver police said?
Mr. Richards: Correct. I will give you an example.
I spoke at a meeting alongside Police Chief Chu, and he gave testimony and
showed video. I forget the individual's name, but there was an individual who
had no connection to the trouble but who was beaten. The police in Vancouver
showed a photo of a number of people with cellphone cameras taking video and
picture evidence of the crime happening, but because the individuals were
disguised, they were unable to be brought to justice.
Senator Jaffer: In the Commons committee, witnesses testified that
trying to get charges laid against people wearing a disguise is difficult
because the level of intent required is unreasonably high. Do you agree with
that assessment? If not, why not?
Mr. Richards: They have indicated to me that subsection 351(2) is
difficult to apply to a riot or an unlawful assembly. It was not written with a
riot or unlawful assembly in mind; it was written with an armed robbery type of
situation in mind. That is why it has been difficult for them to apply that
section. That would be my interpretation and understanding of that.
Senator Jaffer: Do you believe Bill C-309 covers the level of intent?
Mr. Richards: What Bill C-309 does is write it into the specific
sections of the Criminal Code, sections 65 and 66. Those sections are
specifically intended to deal with those situations, whereas subsection 351(2)
had other criminal offences in mind. That is why it has been difficult to apply
to these situations.
Senator Boisvenu: Senator Fraser mentioned what happened in Montreal,
where we saw months and months of protests that turned violent on many
occasions. The City of Montreal had to pass a bylaw prohibiting people from
wearing masks and increase restrictions around protests. The observation was
that individuals wearing masks were to blame for most of the problems. During
the last few weeks of protests, when police were better able to control the
crowds, there were fewer and fewer people wearing masks and, strangely enough,
fewer and fewer violations.
I am from the school of thought that wonders whether we should have gone
further with this bill and deemed the wearing of masks an incitement that should
be banned during protests where the likelihood of violence is high.
Mr. Richards: When I was contemplating this and recognized there was a
problem, in discussing it with police further and with citizens and business
groups and otherwise, I wanted to be very sure that we were not doing anything
that would hinder the rights of those who choose to freely express themselves or
freely assemble, as they are protected under the Charter of Rights and Freedoms.
I believe that what we have come up with is a good balance. I think it is
something that protects the public and public safety. It protects private and
public property from damage, but it does not unduly hinder people's rights to
freedom of expression or assembly.
In the preamble to your question, you hit on the most important part of this
legislation, and that is the deterrent effect it will have. When I say deterrent
effect, it is a deterrent for those individuals who look to disguise themselves
before committing a criminal act, because there is a serious consequence to
Will it deter individuals from participating in lawful gatherings? No, it
will not, because it will actually protect that right. What happens when these
small groups of individuals come and take advantage of a large gathering like
that? The story on the news becomes about the damage that was done by this small
group of individuals, and it takes away from the point trying to be made by
other individuals who were there peacefully.
I believe the deterrent effect for those individuals who come looking to take
advantage of a gathering and the fact that they can wear a mask will certainly
prevent many of these kinds of situations from occurring, which will prevent
innocent bystanders from being injured and property damage in the millions of
dollars, and it will allow better ability for people to peacefully assemble and
make a political point.
Senator Boisvenu: What do you hear when you talk to citizens, to
merchants who fell victim to those acts of savagery? Acts of savagery is what
they were; when people deliberately break store windows, when individuals
intentionally flip over police cars, they are no longer engaging in a protest,
but in anarchy. Have you not heard from people and police officers who have
asked why people wearing masks are even allowed to participate in protests,
where there is a risk of the situation getting out of hand? Is that what
citizens are saying to you?
Mr. Richards: You are probably accurately reflecting a lot of
frustration that people have, but it is important that we strike a balance.
There are reasons, and we have talked about lawful reasons why someone might be
wearing a facial covering. I also think it is reasonable for someone in a
peaceful gathering, whether it be a protest or otherwise, to choose to wear a
mask, a costume for parody or whatever reasons it might be. What I do not think
is reasonable is for people to be able to wear a disguise and then break
windows, start fires to police cars and assault other individuals. That is what
this bill seeks to protect the public from.
Senator Baker: I want to congratulate MP Richards for his initiative.
It takes a lot of time to dedicate oneself towards something like this.
Objectively, people looking at the bill would agree with Senator Fraser that
it is covered. The actual substance of the offence you are talking about is
covered presently under the Criminal Code. There is no doubt about that. I was a
part of it when this law was made at the beginning, and it is life imprisonment
if someone refuses to disband. If you look at sections 68 and 69 of the Criminal
Code, if they say go back to your homes and you do not, you face life
imprisonment. Police officers who do not stop riots face two years in prison for
not doing so if there are reasonable grounds to believe. We thought we had
Your point is that this will be a deterrent. In other words, if people
understand they cannot wear a mask, these fellows who go around, as you say,
with the bag and black masks and so on, if they understood they could not do
this, then this would be a deterrent to them. I think that is your point. It is
not that it is not covered presently under the Criminal Code, but that this
would really enforce it and hammer it home and be a deterrent to those people
who take part like that.
Mr. Richards: I certainly do believe that it will be a deterrent. That
is the opinion and belief of police officers and police chiefs across the
country that I have spoken with as well. It is my hope that that will be the
first and foremost thing it will do. Let's face it: We all want to see these
kinds of situations not ever occur. None of us want to see, other than the
people involved in committing the acts, of course, the property damage, the
looting, the fires and the assaults. None of us want to see that.
I would disagree with your statement that it is currently covered.
Senator Baker: It is not presently covered in the Criminal Code? Of
course it is.
Mr. Richards: As I have stated, police officers have been clear with
me that subsection 351(2) is very difficult to apply to these kinds of
situations. It was not written to apply to these situations, and this is a tool
that I believe is needed to protect public safety.
Senator Baker: People have been charged doing exactly what you are
proposing here using section 351.
Mr. Richards: Charges have been laid, but they have been difficult to
lay and apply and see them through. Police officers have been clear with me that
there is a need to have this specifically in this section of the Criminal Code,
and I do believe that it will better protect public safety.
Senator Batters: I also want to congratulate you, Mr. Richards, for
bringing this bill forward to this point. It takes a lot of hard work to bring a
private member's bill forward and get it to committee.
Could you explain to this committee which stakeholder groups support your
Mr. Richards: I would be pleased to.
I met with a number of groups all across the country, including business
groups. As I mentioned in my opening remarks, the Downtown Vancouver Business
Improvement Association was one group. It is comprised of the members in the
area that were hardest hit by the June 2011riot in Vancouver. They unanimously
supported this at their association meeting. The Building Owners and Managers
Association in Vancouver, and British Columbia as well, was another very
supportive group. A number of the downtown business associations in Toronto have
expressed support as well. These are the areas being hit by the damages, so they
have been very clear. Not only that, but I have certainly had police chiefs in
Calgary, Toronto, Vancouver and Victoria all express their strong support for
the legislation as well.
Senator Joyal: Thank you, Mr. Richards, for your explanation. My
concern is about the element of proportionality in your bill. It causes concern
to me and could in fact be in breach of section 12 of the Charter. I think
everything must be proportional. When I read section 66 of the code, for
instance, whereby being a member of an unlawful assembly is punishable on
summary conviction, and then you add indictable offence on top of it, I am not
sure that would fly with the courts. I do not know if you have consulted lawyers
or constitutional experts on that, but that point in your bill is problematic,
in my opinion. I do not know how you have approached that aspect of the bill. I
understand you want to protect freedom of expression by adding ``without lawful
excuse,'' but it is a very generic expression that is not defined, and that
could be in breach of freedom of expression. I wonder what kind of analysis you
have made of your bill in relation to the Charter.
Mr. Richards: Just so I make sure I am clear on your question, because
you had a couple of questions in there, you were asking about section 66 dealing
Senator Joyal: No, unlawful assembly. Section 66 is unlawful assembly,
and Section 65 is riots. There are the two levels.
Mr. Richards: I thought I heard you use the word ``riot'' there, and I
apologize. That is where I was confused.
That particular provision provides for a hybrid offence. Of course, that
indicates that there is the option of proceeding by indictable offence or
proceeding by summary offence, and of course two different penalties apply
depending on the way in which it is proceeded with.
As far as talking about the idea of Charter-protected expression, I want to
make it very clear once again that this only applies in a situation where there
actually is an unlawful assembly or a riot. Someone's right to freedom of
expression, I believe, is actually protected by this legislation, because I
believe it will deter those individuals who come looking to take advantage of a
lawful gathering to start trouble, and that takes away from other individuals'
rights to lawfully express themselves. Obviously what happens then is the event
becomes about something that it is was never intended to be.
Senator McIntyre: There is no question that Bill C-309 calls for
strong language. You introduced this bill in the House of Commons in October
2011. It was then referred to the Standing Committee on Justice and Human
Rights. I note the committee amended it by increasing the maximum prison term
from five years to ten, as set out in proposed subsection 65(2). Are you aware
of any other amendments?
Mr. Richards: No. The only amendment that was made by the committee
was that particular amendment to change the maximum penalty in that specific
instance. That was the only amendment brought to the House of Commons from the
committee at that stage.
The Chair: Thank you, Mr. Richards. I know you have votes in the House
this evening, so I will let you get back to keep the whips happy.
Mr. Richards: Thank you very much. I appreciate the questions and the
attention of the senators.
The Chair: We appreciate your appearance.
We will reconvene at 10:30 tomorrow to deal with clause-by-clause
consideration of Bill C-37, and then we will continue with witnesses on this
legislation, Bill C-309. A revised notice will be sent out shortly outlining the
details with respect to witnesses.