Criminal Law & the Poor in Canada: Transcript – Senator Jaffer on my Submission to Canadian Senate

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.

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 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.




Leave a comment