Mr. Speaker, I am pleased to rise today to speak to Bill C-37, an act to amend the Criminal Code, respecting the doubling of the victim surcharge and making it mandatory for all offences and from all offenders.

Like my colleagues in the House, we have the deepest sharing concern with victims of crime and we recognize the importance of ensuring that victims have access to the high quality service they require in their moment of need. In that regard, we support the underlying principle of this legislation, that victims services need dependable and appropriate funding. However, the government has not produced any evidence indicating that the bill would do anything to accomplish the goal of sustaining victims services across all provinces and over time.

Moreover, and central to our opposition to the bill, is that by removing from the judiciary the discretion to consider the adverse effect that the surcharge may have in particular circumstances, the bill ignores the complex relationship between poverty and crime. It is something that my colleague from Gatineau referred to as well in her comments. It is something that judges are now allowed to do under the current statute in relation to assessing undue hardship caused by the fine’s imposition. The bill ignores the complex fallout with respect to inequality that would result from the legislation, as my colleague from Gatineau also pointed out in her remarks. In so doing, it may even exacerbate the effects of poverty on individuals and their communities, particularly the most vulnerable among us.

The government suggested the bill would increase the accountability of offenders, without providing any rational basis to indicate that across the board doubling of the surcharge amount is sufficient to sustain adequate funding levels for victims services in all provinces and territories. Indeed this approach ignores the reality that victims of crime exist and require services even when offenders are not apprehended or convicted, for whatever reason, be it due to lack of evidence, problems with the evidence, or alternatively, when the matter has not gone to trial and the like.

It should be recalled that one of the most common crimes in the country, sexual assault, is one of the least likely to result in a conviction and in many cases charges are not pressed for various reasons, including because one may not feel comfortable facing one’s attacker in court, or otherwise. Certainly a survivor of sexual assault deserves access to funded support and assistance even though the perpetrator has not been convicted of a crime under the Criminal Code.

If the government wants to propose legislation to ensure that victims services receives consistent support across the board, anchored in the principle of equality and the like, let it commit to the direct funding of these services. We would be the first party to stand up and support such an issue. Regrettably, there is no evidence that the bill currently before the House would accomplish the goal of sustaining adequate levels of support for victims of crime. Indeed, how soon would we be back here debating additional increases?

How were the numbers arrived at? A doubling, at first glance, appears arbitrary. One might ask why not triple or quadruple the funds? Let me be clear that I am not advocating any such thing. The point is that there must be some evidentiary basis for government action in this regard. We have yet to see any evidence adduced in this matter to justify the doubling of the surcharge, nor have we seen that adequate attention has been paid to the provinces and their differing and particularized programs and needs when it comes to the use of surcharge fees.

This again raises the whole question of the federalist principle. In what manner are the provinces consulted in this regard? In what manner are their views taken into account? In what manner is there any equality of application with respect to the differing and particularized programs and needs in the matter of surcharge fees?

Continuing in that regard, and on this point in particular, we have to be mindful that even though the amount collected may be consistent across all jurisdictions, there is no question that to ensure the same quality of program the costs are different. In the north, for example, a smaller population means few people paying into the system since there are fewer convictions. Combine this with the fact that there is an increased cost to providing services in remote areas. How does the legislation propose to even out the gaps, the access to and provision of services across Canadian jurisdictions? This is a question of equality and one my colleague from Gatineau also referred to.

Beyond just the seeming arbitrariness of the increase is the fact that the bill removes judicial discretion. Currently, Canadian judges are empowered by section 737 to exempt an accused from the surcharge based on a specific finding, that the surcharge would result in an undue hardship on that individual or on dependents.

Regrettably, the removal of judicial discretion, as contemplated by the bill, testifies yet again to the government’s lack of respect for the Canadian judiciary, for the independence of the judiciary for their experience and expertise in these matters.

By removing from our courts the authority to consider the undue hardship that may result in the imposition of the surcharge in specific instances, the bill essentially mandates that the courts turn a blind eye to the disproportionate and prejudicial consequences that mandatory sentencing will have on low income and minority communities, two demographics that are already significantly overrepresented in the criminal justice system.

As members of Parliament, we do not have the ability to consider the unique facts and circumstances of specific cases. Judges who have the facts, witnesses and evidence before them are the person’s best placed to exercise such discretion, and we must authorize them to do so.

Certainly, we could place limits on the exercise of this discretion as appropriate. We could define undue hardship. We could list factors that comprise it as to better guide judicial decision making in this regard. We should not, however, pre-emptively cut off all access to this defence as impecunious litigants would be particularly penalized and punished, perhaps not even in proportion to the offence for which they have been prosecuted.

Our judiciary is well-equipped and qualified to make factual determinations, and more than capable to apply the law fairly and impartially. Moreover, the reasoning of judges in specific instances is recorded in opinions that are public, reviewable and appealable, thus making our judiciary the ideal forum in which these types of decisions should be made.

During previous debate on the bill, the member for Kootenay—Columbia suggested that the proper solution for those offenders “who do not want to pay the victim surcharge” is to not commit crime.

Besides the generally flawed logic underlying this theory of deterrence, which presumes potential offenders reference their copies of the Criminal Code prior to contemplating or committing a particular offence, I do not believe there is any evidence to suggest that because of the victim surcharge, any would-be criminals would reconsider their plans, nor do I believe that offenders, particularly first time offenders, are even aware that such a thing as a victim surcharge even exists, let alone might be collected from them upon conviction in a court of law.

Before I conclude, the new provisions in Bill C-37 require the collection of the victim surcharge for all offences. Yet, by the government’s own acknowledgement, there exists so-called victimless crimes. I am curious if any government member could explain to me how, in cases such as hate speech, criminalized under the Criminal Code, where exactly it sees the collected victim surcharge going, particularly, if indeed, in his view such an offence has no victim.

As noted at the outset, this House stands united in its recognition of the importance of providing services, support and assistance to victims. That said, Liberal reject the premise of the bill that social problems can easily be solved by simply increasing criminal penalties and that judicial discretion should be curtailed.

The undue hardship exemption that currently exists in section 737 enables judges to be mindful of the relationship between poverty and crime. By removing this discretion, Canadian judges will be unable to take this into account, and as such, the bill would ultimately exacerbate the existing economic burden experienced by low-income Canadians and their communities, exacerbate inequality, impact disproportionately and continue the vicious cycle of poverty and crime in which Canadians are trapped.

Robert Aubin (Trois-Rivières, NPD):

Mr. Speaker, I listened carefully to the hon. member’s speech. I keep coming back to one issue. Once offenders have served their sentence, they must re-enter society. Does the member have anything to say about the adverse effects this mandatory surcharge could have on crime? I do not want to generalize, but there is sometimes a link between a person’s socio-economic conditions and the fact that they commit certain crimes.

Would the member not agree that this bill does not give us ways to attack crime at its roots and lower the crime rate?

Hon. Irwin Cotler:

Mr. Speaker, as the member just said and as the member for Gatineau said in her speech this morning, it is a matter of justice, rehabilitation, equality, protection against poverty and judicial discretion.

For all these reasons, we are opposed to this bill. We agree with the principle and the objective, but we do not agree with how the government has addressed this issue.

Hon. Judy Sgro (York West, Lib.):

Mr. Speaker, I congratulate my hon. colleague on highlighting so many of the issues that would have a clear impact if this legislation goes forward.

Given the concern many of us have when it comes to judicial review and fairness in the judicial system, I wonder if the hon. member would be prepared to comment on how he sees this fitting in with the government’s continued mandate on the persecution of so many different people.

Hon. Irwin Cotler:

Mr. Speaker, this legislation really reflects and represents the generic problems associated with the government’s approach to crime and punishment. I use the words “crime and punishment” because there is a generic absence with respect to issues of prevention, but only with after-the-fact punishment.

Even when it comes to that issue, here too we find, as in this legislation and others, a lack of consultation with the provinces, a lack of appreciation to differentiate an impact that such legislation would have given different provinces, a lack of appreciation of the prejudicial impact that this would have on minority groups in this country, particularly aboriginal people, a lack of appreciation for the importance of judicial discretion and, indeed, in that regard, a lack of appreciation with respect to the separation of powers and the importance of the independence of the judiciary, let alone the experience and expertise of the judiciary in matters of this kind and a lack of appreciation for the overall role, as I said, with respect to prevention, to begin with.

When one looks at this legislation, it yet again reflects the exacerbation of the problems we have with crime and punishment rather than approaching it in a manner that would be preventive, rehabilitative, egalitarian and, on the whole, respectful of our separation of powers and the role of the judiciary.

Mr. Kevin Lamoureux (Winnipeg North, Lib.):

Mr. Speaker, I am wondering if my colleague could comment on victim support programs. That is something which the government should support, but it does not have to be solely through surcharges.

Hon. Irwin Cotler:

Mr. Speaker, that is an excellent question because it is precisely the approach to victim support programs that we can fulfill the very objective that the legislation has underlying it, but not do so in the particularist and prejudicial fashion that this legislation would. Again, Liberals support the principle underlying this legislation, but not the means chosen to implement that principle.