1st Session, 41st Parliament,
Volume 148, Issue 157

Tuesday, April 30, 2013
The Honourable Noël A. Kinsella, Speaker

Criminal Code

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Boisvenu, seconded by the Honourable Senator Meredith, for the third reading of Bill C-37, An Act to amend the Criminal Code.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak at third reading of Bill C-37, An Act to amend the Criminal Code.

This bill amends the Criminal Code to change the rules concerning mandatory surcharges. The purpose of the bill is to double victim surcharge amounts and to make them mandatory for all offenders convicted of a criminal offence.

The bill amends section 737(5) of the Criminal Code to eliminate judicial discretion; section 737(2) of the Code to increase the victim surcharge from 15 per cent to 30 per cent of a fine imposed by the court; section 737(2) of the Code to increase the victim surcharge from $50 to $100 for offences punishable by summary conviction; and section 737(2) of the Code to increase the victim surcharge from $100 to $200 for offences punishable by indictment if no fine is imposed by the court.

I want to share with you what Ian Carter, a lawyer who practises in Ottawa, told the Standing Senate Committee on Legal and Constitutional Affairs. Mr. Carter very eloquently described the impact that this bill will have on marginalized people. He said:

I appear at the Ottawa courthouse at 161 Elgin Street on almost a daily basis. To highlight the [Canadian Bar Association’s] 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.

Mr. Carter continued:

I have based these examples loosely on individuals I have encountered within the criminal justice system.

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 either waiting 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.

Honourable senators, here Mr. Carter paused, before continuing with his story. He stated:

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 [children’s] 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 imposed.

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 first place.

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 individual circumstances.

Honourable senators, I am very concerned by this mandatory surcharge. There are several reasons for my concern.

Reason number 1: It implements a one-size-fits-all approach, where everyone has to pay a monetary fine irrespective of their means. This disregards the sentencing principles in the Criminal Code and, more importantly, principles that we all have subscribed to as part of our criminal justice system: deterrence, separating, desisting, reparation and a sense of responsibility.

Reason number 2: warrant for the committal. The courts have clearly established that a warrant for the committal must not be issued in cases of failure to pay a fine, unless the offender refuses to pay the fine without reasonable excuse.

The Supreme Court of Canada, in R. v. Wu in 2003, has held that a genuine inability to pay is a reasonable excuse.

A person should not be sent to jail because they cannot pay a fine.

Reason number 3: Fine option programs do not exist in every province. Fine option programs allow a person who is unable to pay the mandatory surcharge to obtain the money they need to pay the surcharge. Unfortunately, fine option programs exist in only seven provinces.

Reason number 4: The bill removes judges’ discretion, which is an essential safeguard in ensuring justice, because penalties are tailored to individual offenders and offences. It is wrong to remove judges’ discretionary power.

This bill takes away from judges the right to consider undue hardship. That is just wrong.

Catherine Latimer of the John Howard Society of Canada stated:

. . . removing the discretion of the judiciary to waive the surcharge where it would result in financial hardship . . . could really lead to harsh consequences for the poor, the mentally ill and the marginalized. While it might be possible to participate in fine option programs, they are not universally available and many people, owing to senility . . . or mental health issues, cannot complete or participate in fine option programs.

I should also point out that if a judge is looking to impose a fine, the fundamental principles of justice suggest that they must look at the ability of the person to pay and the availability of fine option programs before they are able to impose a monetary penalty for the person; but the surcharge program circumvents those particular safeguards and allows fines to be imposed on people who the judge may know at first instance are unable to pay for those.

The process would be that the fine would be imposed and the person, if they defaulted, would be subject to imprisonment. They would then need to reappear before a court and argue on the basis of a Supreme Court of Canada decision in R. v. Wu that it would be inappropriate for them to be imprisoned. This would take two appearances before crowded courts for the poor when one might have sufficed, and it subjects them to possible remand and custody.

Reason number 5: Clogging the court system. Ignoring undue hardship — which may prevent a person from being able to pay the fine — will then require that person to return to court for a warrant of committal, so that they can apply for a waiver of the fine. This added court hearing would not be needed if the judge were allowed to exercise her discretion in the first place and avoid further overcrowding of the courts. If mandatory surcharges are implemented, judges are forbidden from exercising their discretion.

Reason number 6: Bill C-37 does not comply with section 12 of the Canadian Charter of Rights and Freedoms. Section 12 of the Charter sets out the fundamental principle of justice, which requires that sentences are tailored to individual offenders and offences.

Senator Joyal stated in committee:

We hear from the Department of Justice the same answer through the years, and bills continue to be challenged in court. Moreover, a person from your own department who was responsible for doing that kind of evaluation is in court to challenge the department on that very ground. . . . there is an expression in French that says we have to take it avec des pincettes, which means that we have to take it not necessarily for all the weight of its meaning. How can we be assured that those studies are conducted seriously and that we can satisfy ourselves as legislators that when you come forward with such a proposal, it accords with the levels of scrutiny that the Charter will impose upon it?

Reason number 7: The bill will continue to violate Section 12 of the Canadian Charter of Rights and Freedoms, because it will constitute cruel and unusual punishment. In his testimony, Mr. Carter said:

If a claimant can prove, taking into consideration the particular circumstances of each case, that this constitutes cruel and unusual punishment in the sense that it exceeds what the individual could have originally expected to be sentenced to and creates very strict limitations or problems, in this case, yes, it could be considered a violation of section 12.

Reason number 8: The bill ignores the need for proportionality. The fundamental principle of sentencing in section 718.1 of the Criminal Code is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. If one removes the discretion of the judge and does not let him consider undue hardship, then the principle of proportionality will not be taken into account.

Catherine Latimer of the John Howard Society of Canada stated:

The second major concern relates to the disproportionate nature of some of these penalties. A sentence is intended to reflect the proportionate penalty relative to the seriousness of the offence and the degree of responsibility of the offenders. Victim surcharges are regarded as additional penalties imposed on convicted offenders, and these add-on penalties may well make the initial penalty disproportionate to the seriousness of the offence. These fixed surcharges cannot be calibrated to the seriousness of the offence or the offender’s ability to pay, and they will have a particularly harsh effect on the poor and marginalized.

Reason number 9: The bill will not make offenders any more accountable to victims. It does not promote programs like restorative justice. Catherine Latimer of the John Howard Society of Canada said:

Many programs, like restorative justice, succeed in making offenders more aware of the impact of their crimes on victims, help victims and lead to a reduction of recidivism. It is unlikely that a surcharge, per say, will make the offender more accountable to his victim. The surcharges are not linked to the degree of harm experienced by the victim. In fact, they are applied in victimless crimes where the offender self-harms by the offence, such as through drug use.

The failure to link the surcharge to the circumstances of the victim will not serve to make the offender more accountable to his or her victim. It could likely build cynicism, which is the opposite of the stated policy intent.

Reason number 10: This bill will not follow the Gladue principle, which the Supreme Court of Canada —

The Hon. the Speaker: The honourable senator’s 15 minutes has expired. Is she asking for more time?

Senator Jaffer: May I have five more minutes?

Hon. Senators: Agreed.

Senator Jaffer: This bill will not follow the Gladue principle, which the Supreme Court of Canada has established must be taken into account when sentencing Aboriginal peoples. As Minister Nicholson stated, “This bill applies to all individuals convicted of a criminal offence committed in this country.”

Honourable senators, last weekend, I met an amazing human being, Mr. William Sundhu. Mr. Sundhu has practised law in British Columbia for 30 years. He is a former judge and a member of the Kellogg College, University of Oxford. He has had a distinguished career in criminal trials, human rights and community leadership in British Columbia. He has worked in trial courts, predominantly in criminal law, including 11 years on the bench in the interior and northern regions of British Columbia. He shared his perspective on the impact that Bill C- 37 would have on certain Aboriginal people in Canada. He wrote:

Many of the persons who come before the criminal courts live with poverty, addiction or disabilities. This may include those with mental health needs, Fetal Alcohol Syndrome Disorder, and especially Aboriginal persons, who are disproportionately over-represented among Canada’s prison and criminal justice population.

Certain racial groups are also overrepresented in our criminal justice system.

Bill C-37 only further compounds criminalization and the serious challenges facing these groups because they do not have the ability to pay the mandatory surcharge.

Some provinces do not have Fine Option Programs.

That generally only leaves the option of a warrant of committal.

In remote and isolated communities, there may not be a court sitting for weeks or hundreds of kilometres away in a larger centre.

Upon arrest for non-payment, a person may be held in custody for several days before they can appear before a judge and seek release on bail.

Mr. Sundhu continued:

This type of situation is not only very expensive and bureaucratic . . . it can also create huge consequences for affected persons — disruption and ministry removal of children from single parents because their sole caregiver has been arrested, lost their home, lost their job, lost their ability to provide food derived from hunting and fishing for families.

For example, if you are arrested on Haida Gwaii, the sheriff will fly from Prince Rupert on the mainland to collect the arrested person, fly the arrested person back to Prince Rupert and then transport them 800 kilometres, if they are denied bail or imprisoned, to Prince George where the nearest provincial jail is located.

Upon release, the person must then make their way back to Prince Rupert and catch the ferry that departs back to Haida Gwaii twice a week.

That person, often a woman, must make this trip back to her reserve via the “Highway of Tears” — where many Aboriginal women have gone missing over the years.

Warrants of committal can and have profound consequences.

“Trust us” does not resonate with Aboriginal Canadians and for good historical reason.

Some criminal justice experts might also question the wisdom of Fine Option Programs.

Such programs, even if available, may be too much for a person with mental illness or an aboriginal single parent struggling to keep his or her head above water — if they already struggle for example with disabilities, addiction, obtaining suitable shelter, illiteracy, language problems, counseling and treatment programs.

For many such persons daily life is already a struggle.

Perhaps, at its most basic the removal of judicial discretion to waive victim surcharges will force some persons to choose between food or fines — when it comes to survival for them or their families.

Do their children eat or do they pay the mandatory surcharge to avoid further sanctions or arrest?

For example, in British Columbia’s north-west, on the Haida Gwaii, some Aboriginal persons must survive on monthly government income assistance of only $265 per month, after a modest housing allowance.

Due to it being a series of islands and its geographic isolation, the cost of transport makes food very expensive.

For example, a two-litre carton of orange juice retails at $7.59.

Most persons survive by hunting and fishing.

Poverty and lack of employment are very real problems.

Forcing a single parent or two-person headed family living in poverty to pay a mandatory surcharge will force the family and children into hunger and even more desperate circumstances.

The impact of this legislation on aboriginal, poor and vulnerable persons and families will create manifold problems and costs elsewhere.

It will cause extreme hardship and it is unjust.

Choices will come down to food or fine, a pair of boots for a child or a fine, and so forth. One hundred dollars may not [seem] like much, to some Canadians or legislators, but it means a great deal to a poor person or an Aboriginal parent on Haida Gwaii.

Honourable senators, Bill C-37 is not about seeking justice. It is about arbitrarily disbursing disproportionate punishments. Fairness and sameness are not interchangeable concepts. If we pass this bill, we are rejecting compassion, proportionality, restorative justice, common sense and fairness.

This bill is really wrong, and I ask that honourable senators vote against it.

The Hon. the Speaker: Are honourable senators ready for the question?

Some Hon. Senators: Question.

The Hon. the Speaker: It was moved by the Honourable Senator Boisvenu, seconded by the Honourable Senator Meredith, that Bill C-37, an Act to amend the Criminal Code, be read a third time.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Some Hon. Senators: On division.

(Motion agreed to and bill read third time, on division.)