By all means. It's about 60 minutes, Mr. Chair, if that's okay with you.
The Chair: That will be fine.
Hon. Rob Nicholson: I'm pleased to appear before the committee today to speak about Bill . The government, as you know, has consistently made victims of crime a priority, and this bill represents our most recent legislative proposal to ensure that offenders are held accountable to the victims who they have harmed.
I was very encouraged by the strong support shown for this bill by members at second reading. I think we can all agree that victims of crime deserve our full support, and I hope we can all continue to work together to ensure the swift passage of this bill.
The bill proposes three changes to the victims surcharge provisions of the Criminal Code. The first change would ensure that the victim surcharge is imposed in all cases without exception by removing the option to waive the surcharge. Second, the offenders who are unable to pay the victim surcharge would be able to participate in the provincial and territorial fine option programs to discharge the amount owing. Third, the amount of the victim surcharge that an offender must pay would double under this legislation. All three proposed amendments serve the same purposes: to promote a sense of responsibility in offenders for their actions, and to make offenders accountable to the victims whose lives they have affected.
The changes that we are proposing in the legislation would address a number of issues with the operation of the victim surcharge that have been the subject of study and consultation over the last few years. First, and perhaps most important, it would ensure that the victim surcharges apply to all offenders without exception. The original 1988 victim surcharge provision required the judge to order the surcharge. In 2000 the provision was amended so that the surcharge would be automatically imposed. The court could then waive the victim surcharge if the offender proved that its imposition would cause undue hardship to the offender or the offender's family. Despite this amendment, a surcharge is not applied in all cases.
Research conducted by the Department of Justice in New Brunswick, published in 2006, shows that the surcharge was waived in two-thirds of the cases over a five-year period of time. Remarkably, the surcharge was waived in 84% of cases involving summary conviction offences and 91% of cases involving indictable offences where the offender received a sentence of imprisonment. In contrast, the surcharge was waived in 25% of cases where the offender was sentenced to pay a fine.
The research suggests that the noticeably higher waiver rate for offenders receiving custodial sentences is due to a blanket waiver policy for offenders who are sentenced to imprisonment as opposed to proof of hardship to the offender or his or her family. Furthermore, in 99% of the cases where the surcharge was waived in New Brunswick, reasons for the waiver were not provided by the court, and no documentation was found showing that the offender had demonstrated that paying the victim surcharge would cause undue hardship to the offender or his family.
The research is particularly troubling as it shows that the current provisions are not operating as they were intended. Waiver of the surcharge is not founded upon proof of hardship, but on presumptions about the offender's ability to pay, and we find this unacceptable. It's not acceptable for offenders, and it's certainly not acceptable for their victims. The victim surcharge is a part of the offender's sentence.
We must be mindful of the underlying purpose of the victim surcharge to hold offenders accountable to victims. This is entirely appropriate and is in keeping with the sentencing principles in the Criminal Code, which make specific reference to promoting responsibility in offenders and making reparations for harm done to victims.
For this reason, Bill proposes to remove the waiver option in order to ensure that the victim surcharge is applied automatically, as it was intended. Those offenders who are truly not able to pay the victim surcharge without incurring hardship would have the option of participating in provincial and territorial fine option programs to discharge the amount owing. This is the second change proposed by Bill C-37.
Fine option programs will allow offenders to satisfy the victim surcharge by earning credits for work they perform in programs operated by the provinces or territories. This is in line with the philosophy of a victim surcharge, which seeks to make offenders accountable to victims of crime.
Currently, offenders who are unable to pay the surcharge are not required to take any additional steps to demonstrate responsibility for their actions. Allowing offenders to discharge the victim surcharge by participating in fine option programs would ensure that all offenders are held accountable for their actions. Giving back to the community through such work would remind offenders of their responsibility to victims and to the greater community.
Finally, the third change we are proposing in Bill would double the amount of the victim surcharge. This is an essential element of our package of amendments. The surcharge would be raised to 30% of any fine imposed or where the punishment does not include a fine of $100 for summary conviction offence and $200 for an indictable offence.
This would be the first increase to the victim surcharge since the year 2000, when the provision was last amended. To ensure that the offenders are accountable to victims for the harm they have done, the victim surcharge must be meaningful. Let us not forget that the primary purpose of the surcharge is to ensure that offenders receive a sentence that will promote responsibility for their actions.
Because the victim surcharge is used to help fund services for victims, its payment allows offenders to make reparations to victims and the larger community. Questions have been raised about how the victim surcharge is used and how we can be certain that the amounts collected will truly benefit victims. To be clear, subsection 737(7) of the Criminal Code directs that the victim surcharge will be used for assistance to victims of crime as directed by the province or territory where the surcharge is imposed. Each of the provinces and territories has established services for victims of crime and a dedicated fund for victims services in accordance with their provincial and territorial victims legislation.
Revenue from the victim surcharge is collected and remains in the dedicated victims fund of the province or territory where the surcharge was imposed. The provincial or territorial government decides how to use this revenue to fund victims of services in each province or territory, but revenue from the victim surcharge has consistently fallen short of expected amounts.
We have worked with our provincial and territorial colleagues to determine how best to address this issue because we know they rely on the victim surcharge to assist in funding crucial services for victims of crime. Many have said they did not see any increase in revenue after the last amendments to the victim surcharge in the year 2000. This is why under this bill we are taking a two-pronged approach to reform. It would ensure that the victim surcharge is imposed in all cases, without exception, and it would raise the amount the offenders must pay.
This approach, which was developed through research and consultation, is supported by the Federal Ombudsman for Victims of Crime, whom I believe you will hear from at this committee.
This government takes its commitment to hold offenders accountable for their actions seriously. The amendments proposed would ensure all offenders are held accountable to victims, either through the payment of the victim surcharge or through participation in community service. Raising the amount of the surcharge would ensure that offenders are paying a meaningful amount, which would have the added benefit of funding the services for victims of crime.
We must continue our commitment to victims of crime, but we cannot do this alone. Meeting the needs of victims of crime is a responsibility that we share, of course, with the provinces and territories. In 2007 we established the federal victims strategy to give victims a more effective voice in the criminal justice system. In 2011 we renewed this strategy with funding of $13 million per year. In 2012 we allocated an additional $7 million over five years. Most of this funding goes directly into the victims fund, which provides grants and contributions to provinces, territories, and non-governmental organizations to develop or enhance victim services.
We will continue to work with our provincial and territorial partners to ensure that they have the funding they need to offer much-needed services to victims of crime.
I hope that we can also work together at the federal level to ensure that this bill receives the support it deserves to hold offenders accountable to victims of crime.
You've raised some very good questions, Madam Boivin.
Interestingly enough, the only province that actually publishes information with respect to this is New Brunswick. As I indicated to you, in the majority of cases of indictable and summary conviction offences, it was waived, and again, very seldom do we ever get any reasons why this is the case.
With respect to judges imposing this, for the most part, I would imagine that much of the funds will come from individuals who have received a fine. In a sense, the judge decides what fine the individual is going to pay. What we're saying is that there has to be a 30% surcharge on that for victims of crime, but ultimately, the appropriateness of the fine is determined by the judge. Indeed, with respect to summary and indictable offences, again, the judges, or the juries for that matter, will decide the guilt or innocence of the individuals. This seems to be consistent with the penalties we are imposing. I believe it sends out the appropriate message that individuals must be accountable to victims. It's not just law-abiding Canadians who should pay for victim services; all those who create victims have a responsibility as well. I think this bill accomplishes that.
Fair enough, thank you. I understand that point.
That being said, would it be appropriate that a person who has a total incapacity to pay, is your service, and yourself as Minister of Justice….
I have consulted the case law and, more specifically, the Supreme Court's R. v. Wu decision. The case involved a person living in extreme poverty.
We are afraid that we are dealing with a two-tier justice system, meaning one for those who live in the provinces and territories that have a program that allows them to collect money and one for those in the provinces and territories that do not have that type of program.
In addition, those who have absolutely no way of paying are going to have to stay in jail or be sent to jail to make up for the surcharge. In my view, that does not serve as compensation at all, unless the fact of going to jail is indirect compensation for victims. That is not the issue. This has to do with collecting money to be able to make up for the victims' losses.
Yes, that's a good point.
I remember having looked at this. You quite correctly pointed out, and it's to be expected, that as each province develops, or doesn't develop, a program, there are considerable variations. As you pointed out, in one of them the fine option program does not apply to individuals who are given a fine. Again, it goes back to the question Madame Boivin directed to me in terms of judicial discretion. Presumably the judge, in making a fine, is aware of the fact that he or she is imposing a monetary amount on an individual who has been convicted of a crime, and that the surcharge, which is going to be 30%, is a part of that.
That being said, over the years I've been assured by my provincial counterparts that these programs do work well and they do accommodate individuals who would, for whatever reason—and it could be reasons of poverty, as you indicated—say they can make their contribution back to society, to begin that reconciliation process, by helping out and doing some sort of good community work. Again, that works.
It still accomplishes the same thing: making individuals responsible for what it is they have done and at the same time making a contribution. Again, I think most people would agree with me that these programs shouldn't be simply funded by law-abiding Canadians, but by the individuals who have been convicted.
As you say, there's a wide range across the country. Certainly, when I get together with my provincial and territorial counterparts in another week, I will be glad to have another discussion with them. I'll be interested to know how this will work with respect to their fine option programs and, indeed, if they're making any plans for changes.
We're always trying to do that, Mr. Goguen.
You made a very good point about the administration of this. In the majority of the cases that I cited they were individuals who were convicted of summary or indictable offences, and it was waived. There was no explanation to the extent that we can check. There were no representations with respect to the individual's ability to pay. For the most part I would guess that it's either forgotten about, or it becomes routine either not to impose it or indeed to collect it.
With that being said, to make this automatically a part of every sentence in Canada sends out a very clear message. It's a good message because victims who find themselves caught up in this terrible situation in their lives want to know that their concerns are being heard, that their priorities are a priority of the criminal justice system. This is not the whole show. This is just one component of that, but it's one more component to say to them that there are consequences for the individual who has inflicted pain on them and/or their families.
It's another way for the individual to make recompense and to get back into contributing to society and say he created these victims on whom he has inflicted this pain and in a way he's helping to put something back into society to try to make some amends for that. It's not very much in terms of monetary amounts, but again it sends the message that there are consequences, and again for the individual who is paying these things he'll say this is a start. The judge is imposing a penalty, an imprisonment or a fine on him, and he has to start making his way back into society. A victim surcharge is a reminder that these things are not just hurtful to the individual who is going to prison, in that he or she suffers, and their family suffers, but other people suffer as a result of their actions.
One of the things that people have told me—those who work with me—is that there is no consistency in this particular area. I don't know if there's anybody who would disagree that there is no consistency in that.
It seems to me that, on the one level, there should be consistency with respect to the application of the penalty provisions of the Criminal Code. I think that stands on its own. Quite apart from that, the concept of reinforcing our support for victims of crime and victim services is something that sells itself and commends itself to me, and I'm sure to most people as well. It's a good idea to assist with programs that assist victims of crime in this country.
It seems to me that it works on both levels: that we can and should have a consistency with respect to the penalties that are dealt with in the Criminal Code and, at the same time, that whatever efforts are made by us as parliamentarians to support victims of crime in this country and victim services is something that can and should be supported. I think it works on both those levels.
Why did we do this? You know of our continuing efforts with respect to the support for victims of crime in this country. This is a perfect fit.
But you're quite correct in that at the same time, I've heard for quite some time that there is a complete inconsistency on this. As I pointed out to Ms. Findlay, it has been since 2000 that even the level of the fines has been revisited. We can't go for another 100 years and leave it at 50 bucks for summary conviction offences. You have to take a look at it every so often and ask if it is keeping pace with the demands for victim services in this country so that they're not stuck at a year 2000 level of services and prices. Again, the amount of money going to help victims has to be consistent with that as well.
I have a few quick questions about Bill . They are rather technical or legal in nature.
In the Crowell decision, the court rejected the arguments that the victim surcharge should be considered a provincial tax. That was the big debate. Yes, sometimes, when we look at automatic surcharges, we are likely to think that it is a good way to pad the government's coffers, although the objective to help the victims is commendable. Those arguments had not been accepted by the court, because they were instead perceived as the result of the federal government exercising its criminal jurisdiction under section 91(27) of the Constitution Act. They were rejected in part because the court relied on the concept that the victim surcharge imposed in the sentencing process was an expression of public disapproval and the fact that it was not mandatory.
The fact that it will be wall-to-wall, meaning mandatory, worries me. Are we not in danger of having to deal with the same problem that led to the Crowell decision? Are we not in danger of taking this measure only for it to be perceived as a hidden tax to collect funds and send them to the provinces as a way to divest ourselves of our obligations towards the victims?
Furthermore, I am not sure I heard a clear answer from the minister about this. Should the Wu decision not continue to be applied? Otherwise, could it not be a case of unusual punishment under section 9 of the Charter, for instance? Have your services examined all those aspects?
I only have one question, but depending on how you can help me, we might need to follow it up.
You said Wu doesn't apply, but as far as I understand it, the principles in Wu are pretty clear. There are two dimensions to saying it wouldn't apply. It wouldn't apply because it actually didn't deal with surcharges, and therefore in some technical term it doesn't apply, but if you look at the principles, it would have to apply.
What I heard from your answer was that we don't expect it to be needed. You gave examples of how even provinces without the fine option programs can alleviate to the point that you wouldn't end up in the situation of needing the Wu principle.
Can I have some clarity on whether you firmly believe it does not apply in that strong sense, or whether it does not apply in the sense that we don't envisage its being needed, though the principles are still applicable to surcharges?