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Why Higher Fines Won't Deter Crime

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Today the House continues its debate on Bill C-37 -- the "victim surcharge bill" -- Government legislation that doubles the amount of the victim surcharge -- money collected from convicted offenders to support victims of crime -- while also removing the ability of judges to waive the surcharge when undue hardship would result from its imposition.

While the Liberal Party supports the goal of providing dependable and durable funding to support victims of crime, this bill is not it. It is not legislation that directly funds victims services. Rather, it does more to reinforce the Conservatives' tough-on-crime image than it does to either prevent or deter crime, to rehabilitate offenders, or to support victims of crime in Canada.

Indeed, the legislation itself is highly problematic -- the proposed increase amount is seemingly arbitrary, and necessary judicial discretion is removed. Indeed, removing the undue hardship defense will have a particularly prejudicial impact on low-income and minority Canadians, groups already marginalized by the criminal justice system.

With regard to the increase -- the doubling of the surcharge -- the government has not provided any evidence-based foundation that the doubling of the surcharge amount is sufficient to provide sustainable services for victims of crime in all provinces and territories. Crime rates vary by region, as do the costs of support for victims.

Moreover, not all crimes result in a successful prosecution, or even in an arrest; thus, in many cases there may very well be victims who need support from the government even though no conviction has been obtained and no surcharge has been collected.

Indeed, it remains unclear whether doubling the federal surcharge amount will ensure that victims will be equitably cared for in all cases. In 2006, for example, the actual revenue produced by the federal surcharge varied drastically by region, with Quebec taking in $2, 234, 606 compared to Ontario's total of $1, 237, 323.

There are a number of possible explanations for this disparity but this is exactly the point: How can the government propose to double the surcharge across the board without producing the necessary evidentiary data to explain discrepancies of this kind, and without due regard to the particularities of each province?

Second, the removal of judicial discretion to consider the undue hardship in imposing the surcharge is unreasonable and counterproductive. During debate, one Conservative MP offered that offenders who do not wish to pay the surcharge should consider not committing the crime in the first place, suggesting that this surcharge will result in the deterrence of crime.

This convoluted logic presumes that Canadians reference the Criminal Code of Canada before deciding to commit a particular offense and are aware of the surcharge; if the threat of imprisonment were not enough to deter, surely an additional fine is not the deciding factor.

Simply put, there is no evidence that the federal victim surcharge either deters crime as is, or that its doubling will do so. The government should concern itself with the prevention of crime, which requires an understanding of the complex relationship between poverty, crime, and recidivism.

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Equally problematic is that the impact of this bill will vary greatly by jurisdiction, resulting in regional disparity. The government has defended the removal of the undue hardship defence by arguing that low-income Canadians can take advantage of provincial Fine-Option Programs that allow for the disposal of a victim surcharge through work or community service; however, fine option programs do not exist in every province and territory.

Where they do exist, their availability and eligibility criteria are by no means consistent. Why should a low-income resident of Quebec have the option to satisfy his surcharge obligation through a work program while a similarly situated resident of Ontario, for whom payment of the surcharge creates an undue hardship, must face the prospect of incarceration if he or she cannot pay?

Finally, implementing a mandatory surcharge that cannot be waived by the court will prejudicially effect the most economically disadvantaged Canadians as well as minority Canadians, groups already significantly overrepresented in the criminal justice system at present. Indeed, a 2000 report by the National Council on Welfare [NCW] observed that thousands of low-income Canadians were "imprisoned routinely because they are unable to pay fines."

Moreover, a study sponsored by the Metropolis Project observed that Aboriginal Canadians represent 16 per cent of the federal prison population despite representing only 4.4 per cent of the general population. The same report observed that "structural factors such as neighborhood/community disadvantage appear to play an important role in partially explaining differences across groups in crime."

It is also interesting to note that the NCW, which has produced critical research about the relationship between poverty and crime in Canada, was eliminated by the 2012 budget. This is quite telling with regard to the government's lack of concern for producing policy proposals in the area of criminal justice that are informed by empirical evidence and sound research, rather than mere posturing and punditry.

During Committee, I proposed an amendment that -- had it been adopted -- would have refined the law to ensure that no Canadian could be imprisoned solely on the basis of an inability to pay the surcharge. It should perhaps not be surprising that my amendment was defeated by the Conservatives. Its intent was to codify the Supreme Court's holding in R v. Wu wherein the Court found "it is irrational to imprison an offender who does not have the capacity to pay on the basis that imprisonment will force [payment] . . . [for the impecunious offenders . . . imprisonment in default of payment of a fine is not an alternative punishment -- he or she does not have any real choice in the matter."

This notion -- that it is unjust and inequitable to deprive individuals of their liberty based on their inability to pay a fine -- should be considered a given. Certainly, the imprisonment of an individual based on their inability to pay the surcharge accomplishes nothing with regard to the support of victims or the rehabilitation of the offender. Yet, this legislation doesn't preclude this possibility.

The government has attempted to rationalize Bill C-37 as necessary to deter crime and to prevent judges from taking the law into their own hands. However, there is no evidence either that an increased surcharge will prevent crime, or that Canadian judges have improperly applied the law as it is currently written.

Parliamentarians must realize that the legislation we pass can have unintended consequences. There is no doubt that those who have been convicted of a crime must pay a debt to society as determined by the judiciary -- indeed, this is what the sentencing process is for -- and that victims of crime need support.

It is without question that the provision of funding for victim services is a fundamental obligation of government. Nonetheless, it is wrong to support the funding of victim services in a manner that will impact disproportionately the most vulnerable among us. The government should propose legislation that will ensure the direct funding of victim services and allow the judiciary to do what it is meant to do -- adjudicate the facts of specific cases and apply the law fairly and impartially, as it is more than capable of doing.