:
Thank you very much, Mr. Chair.
Good afternoon to all members of the committee. Thank you for the opportunity to appear before you today to discuss private member's Bill C-350. I would like to introduce Ms. Alexandra Budgell from the Department of Justice, who is here with me today. I will be making comments on behalf of both of us.
Mr. Chair, at the outset it is important to make the distinction that Bill C-350 does not only apply to an offender initiating a lawsuit or claim against the Correctional Service of Canada but also to monetary awards awarded to offenders across all government departments. That being said, I would like to take a few moments today to discuss the current process whereby CSC receives and processes lawsuits or claims by federal offenders. I would then like to outline how we currently track certain obligations owed by offenders.
Mr. Chair, offenders have the same rights as others with respect to their ability to access the legal system. In doing so, inmates are provided with reasonable access to legal counsel and the courts, as well as to legal material, as per the corrections and conditional release regulations and CSC policy. Offenders can make use of the provincially operated legal aid system, or retain private counsel and pay legal fees from their own funds.
Most often, legal challenges by offenders against CSC concern specific decisions or actions. These could include our response to an offender grievance, a security reclassification, offender transfer, or when offenders have sustained a physical injury and believe that CSC is at fault. In these cases, CSC is normally represented by counsel from the Department of Justice. If our legal counsel determines that there is a legal basis to consider that we may be liable and the offender has incurred damages, then an out-of-court settlement may be reached. Otherwise, we will defend the case in court.
In addition to formal legal action, we have a policy framework for identifying how offenders can submit claims for compensation if they have suffered a loss. Commissioner's directive 234, “Claims for Staff Personal Effects and Inmate Personal Effects and the Offender Accident Compensation Program”, lays out the process by which an inmate may register a complaint against the crown. This directive states that an offender claim will be allowed when it has been determined that CSC has not exercised reasonable care to protect an offender's personal property in the institution. It also allows claims in instances of damages to or loss of personal effects. When an offender submits a claim, CSC reviews the circumstances to determine whether there was negligence by CSC or the offender.
If it is found that CSC was negligent, the claim is allowed and an amount up to the replacement value of property is paid. If CSC denies the claim and the offender is dissatisfied with this decision, he or she can avail himself or herself of the formal offender complaints and grievance process.
CSC does manage certain information regarding an offender's financial obligations relating to victim restitution orders, victim surcharges, or fines imposed at the municipal, provincial, or federal level. This information comes directly from the courts and is recorded in the offender management system, or OMS.
In light of changes resulting from Bill C-10 that require CSC to include court-ordered obligations in an offender's correctional plan, we are updating OMS so that it is easier to track and record an offender's civil and criminal obligations. Our processes at this time are limited to recording the information when known, and encouraging inmates to accept their accountabilities as awarded by the courts. Bill C-350 would, in essence, require that CSC establish a different process to track and record debts owed by offenders that would include formal evidence by any creditors of the debt in question and amounts still owing.
Mr. Chair and honourable members, I would like to thank you again for the opportunity to appear before you and discuss the effects of Bill C-350 on CSC. In closing, I would like to state very clearly that CSC views rehabilitation as a two-way commitment. We are responsible for providing offenders with the opportunity to learn the skills they need to correct criminal behaviour. In turn, offenders are responsible for using the tools and opportunities we provide them to return to society as productive, law-abiding citizens. This includes measures that would ensure that offenders assume greater responsibility and accountability for their rehabilitation and responsibilities to society.
We would be pleased to answer any questions.
:
Thank you very much, Mr. Chair.
Thank you, Ms. Budgell, and Mr. Toller, for being here. We appreciate your being here at the onset.
We spoke to the introducer of this bill and we heard from him. We got a good sense of why he introduced this bill. He talked a lot about people in his riding who are victims and have been victims of crime. He talked a lot about the children and spouses of the offenders also being victims and many times suffering because of what the offender has done, including not being paid things like child support or spousal support.
We got a good sense of the reasons, but it's good to have you here for some very specific questions.
Mr. Toller, in your comments you said at the onset that you wanted to make the distinction that Bill applies not only to an offender initiating a lawsuit or a claim against the Correctional Service of Canada, but also to monetary awards to offenders across all government departments.
You did explain how monetary settlements would be awarded regarding CSC. Could you give us some examples or explain how inmates would possibly receive monetary settlements from other departments?
:
Thank you. I would like to answer in English, if I may. My French isn't very good.
[English]
It's a very interesting question. Per some of the comments that have been made here before, the financial piece on accountability or responsibility is but one of the tools in the complete toolbox. So would it be reasonable for our staff, for example, if you look...? I'll just use the victim surcharge piece here. In cases where we have that, and in cases where it hasn't been waived by the courts, a lot of discussions would take place at the front end with the staff who are involved about accepting that level of responsibility in preparing inmates for the community.
Along with everything that goes with getting your education, learning employment skills, looking at who you associate with, getting out of a gang, looking at the needs that might have got you here in the first place, if you have substance abuse issues, if you have anger management issues, if you have anything along those lines, it's quite common for us to start planning their return to the community literally from day one. That includes those members of the family where there is a support system. Those support systems are out there in different points of view.
Again, from my perspective, when they have outstanding commitments that are owed, no matter in which fashion, there will always be encouragement for them to accept what they owe and to accept what their obligations are to society in the fashion that makes them responsible.
:
Mr. Chair and members of the committee, good afternoon.
Thank you for giving me the opportunity to speak to you today about Bill , which concerns offender accountability.
[English]
As you may know, the Office of the Federal Ombudsman for Victims of Crime was created to provide a voice for victims at the federal level.
We do this through our mandate, which includes: receiving and reviewing complaints from victims; promoting and facilitating access to federal programs and services for victims of crime, by providing information and referrals; promoting the basic principles of justice for victims of crime; raising awareness among criminal justice personnel and policy-makers about the needs and concerns of victims; and identifying systemic and emerging issues that negatively impact victims of crime.
The office helps victims in two main ways: individually and collectively. We help victims individually by speaking with victims every day, answering their questions, and addressing their complaints. We help victims collectively by reviewing important issues and making recommendations to the federal government on how to improve its laws, policies, or programs, to better support victims of crime.
I would like to thank the committee for inviting me here today to speak to the payment of court-ordered debts owed by offenders, and its impacts on victims of crime.
Bill , if adopted, would help to ensure that offenders are held accountable for the monetary debts they owe, including spousal and child support, restitution, the federal victims surcharge, and civil judgments. This bill will ensure that offenders who are successful in obtaining monetary awards from government are mandated to pay their court-ordered debts.
With respect to restitution and the federal victims surcharge, this bill provides a mechanism to further hold offenders responsible for providing reparation to victims for the harm they have caused, and to promote a stronger sense of responsibility and accountability. Similar to the garnishment of spousal and child support already occurring at the federal level, this bill will go further to ensure that offenders are responsible and accountable for their debts.
Our office supports measures that seek to better address the needs of victims of crime. Given that Bill seeks to hold offenders more accountable and ensure that victims of crime receive the money they are owed and have access to services following a crime, our office supports its passage into law.
To provide some context related to the financial impacts of victimization, a recent study by the Department of Justice estimates that the total tangible and intangible costs of Criminal Code offences in Canada in 2008 were approximately $99.6 billion. When looking at the combined costs measured in the study, the financial burden on victims, which can include lost wages, medical attention, and stolen or damaged property, is estimated at 83% of the total cost of crime. This, frankly, is unacceptable.
Given this burden, tangible supports, including restitution and the federal victim surcharge, become extremely important to victims. They are a means through which to recover loss and to promote access to much needed services. They also serve to acknowledge and provide reparation of harm to victims on behalf of offenders.
Further, when one considers that victimization often occurs within the family context, the payment of spousal or child support may also be extremely important for victims. A statistic that illustrates the familial ties between federal offenders and victims is the number of homicides solved in 2009, where 33.6% of victims were killed by a family member. As victims of crime are estimated to bear 83% of the cost of crime and federal offenders are often family members of victims, measures to ensure that victims receive the debts owed to them, including spousal and child support, and restitution, are necessary to address the needs of crime.
To elaborate, restitution is a payment made by an offender to the victim to cover expenses resulting from the crime, such as property loss or damage, or personal injury. Where a restitution order is made, the offender must pay the amount ordered directly to the victim named in the order. If the offender does not pay the amount ordered, the victim can file the order in civil court and use civil enforcement methods to collect the money.
Legal advice and representation is often needed to pursue these methods of collection, which are cost-prohibitive for many. For victims of crime who have already experienced loss and trauma, the additional legal and financial burden of having to track down moneys owed to them as a result of a crime committed against them can simply be overwhelming. This cannot and should not be the reality. Victims do not deserve to be revictimized. It is for this reason that measures that encourage the enforcement of the payment of restitution by offenders to victims are a necessary and welcome step forward.
In addition to restitution, the federal victim surcharge is also an important payment made by offenders to provide financial support to provincial and territorial victim services and to promote a link between an offender's crime and his or her accountability to the victim. The government recently made an announcement to introduce legislation to double and automatically apply the federal victim surcharge. This is indeed a very positive step forward in response to recommendations made by our office.
While the doubling and automatic application of the surcharge will serve to better meet the needs of victims, mechanisms to ensure that offenders pay the surcharge, such as Bill , are necessary to help ensure that provincial and territorial victim services are given the funding they need and deserve. This bill is one small measure that will contribute to offender accountability.
However, measures to ensure that offenders pay their court orders, regardless of whether they have received a monetary award from government, need to be implemented to ensure that offenders are held accountable for their debts and for providing reparation of harm to victims. To this end, my office has made several recommendations to government to promote the reparation of harm to victims and to mandate that offenders be held accountable to victims for their court orders.
These recommendations were made in our most recent report, Shifting the Conversation, and they include the following: requiring judges to consider restitution in all cases involving a victim and to state their reasons for not ordering restitution, similar to provisions for the federal victim surcharge; giving victims the right to make an application for restitution and the right to appeal if an application is refused; providing victims with detailed guidelines on how to document their losses for the purposes of restitution; removing the requirement that a restitution amount be readily ascertainable, or allowing a court to order a “to be determined” restitution order if the costs are not fully known at the time of sentencing; examining the ability of the federal government to deduct restitution awards from federal government payments, such as GST rebate cheques and employment insurance payments; and holding offenders accountable by including conditions to ensure that they fulfill their court orders for restitution and the federal victim surcharges by authorizing the Correctional Service of Canada to deduct reasonable amounts from an offender's earnings.
These recommendations to government are aimed at promoting reparation of harm to victims and mandating that offenders be held accountable to victims for their court orders.
In conclusion, if adopted, Bill would help to ensure that offenders are held accountable for the monetary debts they owe, including spousal and child support, restitution, the federal victim surcharge, and civil judgments. This bill will ensure that offenders who are successful in obtaining monetary awards from government are mandated to pay their court-ordered debts.
From a victim's perspective, ensuring that an offender pays his or her financial debts, including restitution and the federal victim surcharge, upon receipt of a monetary award would seem to be common sense. In fact, many victims, and even Canadians at large, would perhaps be surprised to know that this is not already the case.
For this reason, we support the passage of Bill , but we encourage members to understand that increasing offender accountability in relation to court-ordered restitution and the federal victim surcharge will require more comprehensive solutions above and beyond the measures proposed in this bill.
Merci. Je serai heureuse de répondre à vos questions.
:
I knew that Mr. Toller would be giving testimony ahead of me, and so I tried to look at how much money would be involved. I think I have been able to get the same data Mr. Toller presented, or data similar to it.
But I can tell you that on a daily basis we hear from victims of crime across this country, and when we talk about the cost of crime, and I talk about tangible and intangible costs of crime, these are very real people involved. I realize that I'm speaking as a federal ombudsman and that the responsibility for direct services to victims is largely that of the provinces and territories, but I can tell you that there isn't.... We have to be looking at better ways of meeting the financial burden on victims of crime.
Again, I realize why it was so important for the federal victim surcharge to come in. That goes to directly fund the provinces and territories that provide those services. When you hear from victims across this country who can't afford to get counselling—again, I know it's a provincial responsibility—or who can't afford to get some of the basic services they need, the more we can do to provide for that and take the burden of the costs off the victims of crime, the better.
I can tell you that it was only six years ago, I think, that we started to fund victims attending parole hearings, providing them with the basics of transportation and accommodation to attend a parole hearing. That funding only became available, as I say, about six years ago. So we're talking about some very basic support—tangible supports—for victims of crime, who carry the burden of the cost of crime in this country.
So this is a small measure. Also, I want to say that my final comments talked about the fact that this is one measure, but we need to be looking more widely at the whole issue of restitution.
:
Very good, because I think it's important to see that there is a connection between the federal government and family court orders. While there may not be a direct ability for the federal government to be involved in it vis-à-vis ensuring that offenders do cover their family responsibilities, there is a federal component.
Thank you for bringing that to our attention, because I think we need to be reminded of that from time to time.
I think—as a matter of fact, I'm sure, and I know in your preliminary statement you indicated—that the bill puts the concerns of victims before criminals. Or at least that's the impression I got. We see, or at least I have seen in my past work, and I think you could allude to that also, that we have so many checks and balances that take into account the people who are brought before the criminal justice system. As a matter of fact, it concentrates on the accused, the charged person. Of course, of late we've seen both in our newspapers and through this government and through other agencies such as yours a realization that the victim should form as important a part of our criminal justice system.
I'm wondering if you believe that this bill once again begins to address the victim, the plight of the victim, vis-à-vis the circumstances through which a person's accused. In other words, to put it in the simplest terms, do you believe this bill puts the concern of the victim before the criminal?
And I just wonder if you could expand on, as you mentioned, the re-victimization—
Thank you very much, Ms. O'Sullivan, for being here and telling us about how you see things. To be honest, it's nice to hear a point of view that's different from the one around this table. Given the work you do, in particular, you are fully aware of the needs of victims.
I agree with several aspects of Bill . Usually, in society, a person must fulfill his or her obligations. In fact, all victims should have access to compensation of this kind. In your presentation, which calls for greater respect for victims, you made a number of very interesting recommendations that should be taken into consideration.
Like you, I think that Bill includes improvements, especially with respect to the previous one, Bill C-292. Among other things, compensation will from now on be shared more equally among the parties. And an order of priority has been set.
However, Bill seems to take on only a small part of this large problem of victim compensation. Would you like more improvements made to this bill? I'll go even a little further and ask this: if you could amend the bill or make it perfect, what changes would you suggest to us?
:
Thank you for that, because I'd like to add all the recommendations relating to restitution included in our report,
Shifting the Conversation.
I think what we're talking about here is balance. This bill is dealing with, as I said.... I tried to find the data to look at what would be the actual moneys, and they are a smaller amount. We're talking about the huge of cost of crime here, and I think that the recommendations on restitution that we make in the report are very specific ones to get us as a country to make a fundamental shift to start putting the victim and the losses they've suffered to that.
Again, when I've been before committees, I do talk about balance because it's not an either/or here. When we look at our criminal justice system and healthy and safe communities, this include everything from prevention to intervention, to early intervention, and to where we end up at the other end of the criminal justice system. And for many victims, their needs go way beyond the point where the criminal justice system or court case has finished.
What we can do is to start with some of the very practical recommendations we have in this report. I think of the recent announcement for making mandatory the federal victim surcharge and doubling that, which will help raise funds for the provinces and territories. But I think we do need to be making some very concrete moves towards actual restitution and in how we're managing that on a national level in terms of providing some actual compensation.
One of the things that often comes up in these conversations—and I did have the opportunity to hear a few as well—is the offender's ability to pay given small amounts they earn. But when they come back out....
There is something in the United States I think we might want to look at. I need to do a little more digging into this. There's something called the inmate financial responsibility program in the United States. It basically works with offenders so that they can understand financial responsibility, including payment of debts once they are out of the institution and back in the community. I think it reflects some of the comments made that these debts are still owing. I go back to my position that difficult as it is for a lot of people to pay these, I'm going to put the victims forward.
When they aren't getting some of the basic services, the victims understand that the majority of offenders are coming back out into the community and don't want them to reoffend. There's not one victim I have talked to who does. They will tell you that they don't want what happened to them to happen to anyone else. They understand that the inmates need supports while they're in the institution and when they're back in the community. What they can't understand is why they don't have access to the supports that are in place and available to offenders.
So it is about a rebalancing and the practical things we can do to really take the costs off victims, Really, with 83% of the tangible and intangible costs of crime in our country borne by victims, we need to be looking at newer ways. And so there are some very positive recommendations in the report.
I thank you for that question .
:
Obviously, I can't speak to any individual cases due to confidentiality, but I can speak to the issue of what we often hear. If a victim contacts our office and it's not a federal issue, we will get them to where they need to go to get the best information. So we will receive calls about issues, be they support issues or financial support issues, that are the responsibility of the provinces. So we will direct them to the appropriate office at the provincial-territorial level, particularly if it is specific to child support or that kind of family support issue.
When it comes to the costs of crime and the lack of resources for victims, I thank you for that question because what we're trying to do is put a human face on it. Anybody listening here can think of someone they know who has been a victim of crime. There are a lot of great things happening in our country as well in terms of the front-line support that is available and the people who are doing phenomenal work delivering those supports. We don't want to lose sight of that. What we want to make sure of is that they have the resources to do that and to deliver that service. And that's why we have to be looking, if I can say this, at respecting the levels of governments' mandates, but also thinking together strategically on how best to mobilize and ensure that those supports are in place. It's exactly what this committee is looking at.
So what we have here with this legislation, which we would support, is a very practical priority list, which we understand is in line with the provinces' priorities. But I think we have to look at better ways in this country of supporting victims of crime with tangible financial supports, because if somebody does need to get some very practical services, again there is variability across the country depending on what the provinces and territories can put in place. Also, quite frankly, there are different issues depending on the remoteness of areas and access. What I am hearing about is issues around capacity, and training people to do that as well.
There is whole series of issues that we have to look at. But at the end of the day, if you were a victim of crime in this country, you should be able to get the supports you need. Again, I go back to the issue of every victim being unique. Those supports may be financial support for some, or housing, or support through the court process, or long-term counselling. So there are some very practical needs that victims of crime have, which we need to be ensuring they have access to in a very timely way.
:
I would defer to Mr. Toller on the offenders' accounts and the issues around that.
I do want to say that I am here in support of Bill , because it will help to ensure that offenders are held accountable for their monetary debts.
In looking at the bigger issue of restitution, I won't go over the recommendations; you have copies of the report, and they're there. I think we do need to be taking a bigger picture.
I did find some data. It's not my data, but I did find through the director of parliamentary relations at the CSC some data that looked at these awards—although the data clearly indicates that CSC does not keep statistics for claims against the crown paid to inmates where they are less than $1,000. Again, the data is not comprehensive, but I was able to see, for example, that from 2006 through 2007 the claims against the crown totalled $2,500,000. Of that, $279,000 was paid to inmates in 26 cases. So there is some data out there, but again, it's not comprehensive and it's not my data.
I tried to find from Statistics Canada all the guilty cases in adult criminal courts in relation to restitution orders, but these weren't specific. They were lumped together—federal, provincial, and territorial. For example, in 2009-10, there were 6,000 offenders. It says here, “The following statistics represent all guilty cases in adult criminal courts in Canada, including offenders for restitution.” It looks like there were close to 7,000.
I was looking at the data and what it means. Part of the issue around restitution is of course that in many cases the courts aren't ordering it. There are many reasons for that.
I mean if you're a victim of crime and you want restitution, it has to be done at the time of sentencing. That means, and I'm going to use an example, if I suffered a property loss or I was injured in an assault and lost two weeks' pay, I would have to prove how much that loss was at the time of sentencing. You won't know to do that unless somebody tells you to do that. You have to be able to prove that with receipts and bills. Then you have to have the crown attorney ask for that restitution.
There are huge issues. I know you've got limited time here, but I wanted to paint a bit of a picture for you.
Even if a restitution order is given, if the offender doesn't pay it then the victim has to go to civil court to try to figure out how they're going to get money from the offender. We need to be doing a better job at how we are dealing with restitution in this country and putting in place some of those frameworks to do that.
Thank you.
:
I think one of the things that resonated with me when we listened to the information from the Correctional Service of Canada is that we lack even the mechanisms and frameworks to be able to look at how offenders could pay.
Again, I think we need to make sure that we have mechanisms in place, that there are frameworks that allow us to do that. It would appear that we can't even get comprehensive data on how many awards there are, who has them, where they're held, and those kinds of things.
I balanced my comments and did share with you the point about whether there is a willingness to participate in that. That's why I referred to that example of a program in the United States, the inmate financial responsibility program there. Having that in place and teaching those skills can go way beyond that, once an offender is back in the community.
I recognize some of the comments from one of the members here in my saying that at the end of the day these are debts that are owed. It is about responsibility and accountability.
We just have to put in place a longer term view around that. Again, we may be able to be deal with it quickly, but it may also require a longer term. We need to be thinking about those things.
I'll go back to the actual recommendations in the report. When you look at our recommendations, I think it's mainly an issue of having a framework in place that's going to allow us to monitor and to be accountable for everything from the federal victims surcharge through to restitution orders. But we also need to look comprehensively at these issues in our country around restitution and tangible financial supports for victims.