Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 31 - Evidence - April 2, 2015
OTTAWA, Thursday, April 2, 2015
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 10:29 a.m. to study Bill C-591, An Act to amend the Canada Pension Plan and the Old Age Security Act (pension and benefits).
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
I'm Kelvin Ogilvie, chair of the committee from Nova Scotia, and I'd like to start by having my colleagues introduce themselves, starting on my right.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Wallace: John Wallace from New Brunswick.
Senator Enverga: Tobias Enverga from Ontario.
[Translation]
Senator Chaput: Good morning. My name is Maria Chaput, and I am a senator from Manitoba.
[English]
Senator Merchant: Pana Merchant, Regina.
Senator Eggleton: Art Eggleton, deputy chair of the committee.
The Chair: Thank you, colleagues. We are here today to deal with Bill C-591, An Act to amend the Canada Pension Plan and the Old Age Security Act.
The sponsor of the bill in the house was scheduled to address us at the beginning. Unfortunately, some serious issues have arisen and he had to return home and is unable to be here.
The rules allow us to proceed as a committee. He very kindly provided a written statement to the committee and I believe that was circulated to all members. I thought it might be appropriate if the sponsor of the bill in the Senate would read that into the record; not to act as a witness, but to read it into the record. Senator Wallace has very kindly agreed to do that.
You will notice that we have the witnesses who were scheduled to follow the sponsor. They have kindly agreed to be here at the beginning of the meeting. I'll welcome them, and I'll introduce them as I invite them, following the reading of the statement into the record.
So with that understanding, colleagues, I will now ask Senator Wallace to read the statement.
Senator Wallace: Thank you, Chair. So you'll have to imagine for a moment that I am David Van Kesteren, the member of Parliament for Chatham—Kent—Essex, in the province of Ontario. I must say for me this is about as good as it's going to get, to be viewed as David Van Kesteren:
Colleagues, it is an honour to represent my constituents of Chatham—Kent—Essex and introduce a bill that closes a long-standing loophole and prevents those convicted of killing their spouse or their parent from receiving their victim's Canada Pension Plan benefit or Canada Pension Plan orphan benefit.
This bill is consistent with a long-standing common law principle, known as ex turpi causa that criminals should not benefit from their crimes. The bill restores fairness to the victims and their families by ensuring that those convicted of murder do not benefit from their crime.
One cannot imagine the horror of having a loved one murdered, yet every year in Canada, we read of tragic cases where someone loses their life by an act of murder. Sadly, this is done at times at the hands of a family member.
How terrible a thing — to suffer the horror of family violence. How much more the horror of murder, but to have the added pain of witnessing someone profit from their crime is a clear violation to the long-standing common law principle of ex turpi causa, by way of collecting the victim's survivor benefit. This is not fair to the families of the murder victim and it is an injustice that cannot be allowed to happen.
Although approximately 30 individuals per year would be affected by this legislative amendment, and of those, roughly half would apply for Canada Pension Plan survivor benefits, roughly one third would be Old Age Security allowance recipients and less than 10 per cent would relate to the Canada Pension Plan orphan benefits.
Familial homicides are not all committed by spouses, children or common-law partners, and not all cases are charged with murder and convicted, nor have all victims sufficiently contributed to the Canada Pension Plan or possible recipients of the allowance for survivors.
The intent of the legislation would not be to punish families. The focus would be on preventing murderers from benefiting from their crimes.
The proposed approach is feasible, cost-effective and consistent with privacy laws. It respects areas of provincial and territorial jurisdiction, ensuring that the minister would be able to fulfill obligations.
Nothing can take away the pain and suffering experienced by the survivors of a murder victim. No law can ever bring back those whose lives have been taken, by such a cruel act of violence. However, this bill would restore fairness to victims and their families. None of us wants to see those who suffer the loss of a loved one, suffer the added insult of seeing the one responsible for their death collecting the victim's benefits as well.
I hope that the bill is supported by all members of the Senate and is quickly enacted. Thank you.
The Chair: Thank you very much, senator.
I will now turn to our witnesses, and by prior agreement I'm going to invite first Sue O'Sullivan, who is the Federal Ombudsman for Victims of Crime from the Office of the Federal Ombudsman for Victims of Crime.
Sue O'Sullivan, Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime: Thank you. Mr. Chairman and members of the committee, thank you for inviting me here today to discuss Bill C-591, An Act to amend the Canada Pension Plan and the Old Age Security Act (pension and benefits).
I would like to begin by providing you with a brief overview of our office's mandate. Created in 2007, the Office of the Federal Ombudsman for Victims of Crime receives and reviews complaints from victims, promotes and facilitates access to federal programs and services for victims of crime by providing information and referrals, promotes the basic principles of justice for victims of crime, raises awareness amongst criminal justice personnel and policy-makers about the needs and concerns of victims, and identifies systemic and emerging issues that negatively impact on victims of crime. Basically we help 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 support victims of crime better.
Bill C-591 seeks to amend the Canada Pension Plan and the Old Age Security Act to ensure that offenders convicted of the murder of a spouse or parent are not able to collect the victim's Canada Pension Plan or Old Age Security benefits. I support this bill for its recognition that offenders should not benefit in any way from the commission of a crime.
For victims of crime, the impact of a violent death of a loved one is traumatic. Victims should not suffer further victimization or anguish knowing the offender, who is responsible for killing their loved one, is receiving their benefits. Although the bill identifies an important policy gap, I believe that it can be further strengthened with some clarification around notifications.
Let me begin by providing some context. The most recent Canadian homicide survey reports that police investigated 543 homicides in 2012. According to the Statistics Canada report, about 20 per cent of solved homicides in 2012 involved intimate partner homicides. Among the 143 family-related homicides in 2012, 20 per cent were committed by children against a parent, which amounts to approximately 28 cases. Among the victims of intimate partner homicides, Bill C-591 would only apply to those who meet the standards of pension contribution. That being said, Bill C-591 will have significant impact for the loved ones of those victims, and that alone makes Bill C-591 a worthwhile undertaking.
In October last year, I submitted recommendations for improving Bill C-591 to the Standing Committee on Human Resources, Skills and Social Developments and the Status of Persons with Disabilities.
I, as well as others, recommended that the bill be amended to apply to convictions of manslaughter, as well as murder. I am pleased to see that this recommendation resulted in an amendment to the bill.
That being said, I appreciate that the bill will not apply to cases of manslaughter that resulted in a suspended sentence. This provides some flexibility in exceptional circumstances where it may not be appropriate to prohibit the payment of CPP or OAS benefits.
One outstanding issue of the bill that I would like to address concerns the process for notifying the Department of Employment and Social Development of Canada, or ESDC, that an individual convicted of murder or manslaughter may qualify to receive the CPP or OAS benefits of the victim.
In reading Bill C-591 and in following debates in the House of Commons, it appears that the onus to notify ESDC will be on the victims. Relying on victims to notify ESDC is problematic. The requirements related to estate planning and financial benefits can be very difficult to manage on their own, and even more following the traumatic loss of a loved one through homicide. I would strongly encourage that a mechanism be established through which ESDC would receive notice without assigning responsibility to victims. Any measure to alleviate the administrative burden on victims is worth exploring.
At the very least, the federal government will need to work with provinces and territories to ensure that victim-serving agencies and law enforcement agencies inform victims of any notification requirements. Receiving this information will be crucial for victims to ensure that the offender will not be able to financially benefit from the death of their loved one.
In closing, I thank the committee for its consideration of Bill C-591 and for its work in examining this important issue. I believe this bill closes an identified gap in legislation and helps to ensure that offenders are not able to financially benefit from their crime. Thank you for your time and I look forward to any questions you may have.
The Chair: Thank you very much. Now I welcome back to the committee Catherine Latimer, Executive Director of the John Howard Society of Canada.
Catherine Latimer, Executive Director, John Howard Society of Canada: It's good to be before you again and thank you very much for the invitation.
As you know, Bill C-591 would amend the Canada Pension Plan and the Old Age Security Act to deny benefits to an individual who had been convicted of murder in the first or second degree or manslaughter of the contributor. The John Howard Society is a charity committed to effective, just and humane responses to the causes and consequences of crime. Representatives from the John Howard Society have appeared before many parliamentary committees expressing concern about the denial of rights and the protection of law for prisoners and those convicted of offences. Bill C-591 does not raise those concerns for us.
Ex turpi causa non oritur actio is a well-established principle at common law that prohibits a person from profiting from his or her crime. Courts have placed the principle ahead of acts of Parliament. As a British court found, the rule is that we must interpret acts of Parliament as not requiring performance of duties, even when they are in terms absolute, if to do so would enable someone to benefit from his or her serious crime.
Given that prohibiting a person from profiting from a crime despite benefits being set out in statutes is a well-established principle of common law, it raises the question of why Bill C-591 is needed. Those convicted of murdering contributors should not be able to collect benefits now under the Canada Pension Plan or the Old Age Security Act. I would be very surprised if a lot of people who have been convicted of murder are benefiting from that.
The concern that we have is in relation to the retroactive element of Bill C-591. The test for denying benefits is that the minister is informed and satisfied that the individual has been convicted of one of the articulated offences. It is the conviction upon which the disentitlement is based, yet proposed section 44.1(4) allows for the recovery of pension benefits not only after the conviction but also for any amounts paid before the date of the individual's conviction. Authorizing the recovery of benefits for periods before the minister was entitled to deny those benefits will raise legal and Charter issues, I think, associated with this bill.
The provisions relating to the orphan's benefit limit the denial to those who have received an adult sentence and are 18 years or older. This is probably a hobby horse of mine because I spent many, many years as the Director General of Youth Justice Policy, Justice Canada, but I'm not sure I understand the rationale behind that exclusion. This would imply that those convicted of murdering a parent or contributor at 17 who receive an adult penalty would be able to receive the benefit. It's usually the application of the adult penalty that would indicate it's a fairly serious offence for which the Charter presumption of diminished responsibility has been rebutted. In those cases, I'm not sure why you just wouldn't cut it that any young person who has killed a contributor and receives an adult penalty shouldn't receive the benefit. I'm not sure why you are setting the age limit at 18. By doing so, you might actually limit what would have been the common law application of the ex turpi causa non oritur actio principle.
In conclusion, it is a well-founded principle that people should not profit from their crimes and this bill is consistent with that just principle. We recommend that an amendment be made to proposed section 44.1(4) of the bill. The authority to recover the benefits should be limited to the minister's authority to deny them, which is triggered by the conviction, and should not include payments made before the actual conviction.
The Chair: Thank you. I also welcome to the committee Marianna Giordano, Director, CPP Policy and Legislation for Employment and Social Development Canada. It is the practice of government departments not to make a brief on a private member's bill but to be available to answer questions on them.
Welcome, Ms. Giordano, to the committee this morning.
Marianna Giordano, Director, CPP Policy and Legislation, Employment and Social Development Canada: Thank you.
The Chair: I will open the floor to questions from colleagues. We will be in normal question mode today as we have the time.
Senator Wallace: Ms. O'Sullivan, from your presentation, this is an obvious but important question. For the sponsor of the bill, fairness in the criminal justice system and improving it wherever we can is a major issue. I take it, then, that you and your organization would agree that the bill would support victims of crime and would, in fact, strengthen Canada's criminal justice system. Would you agree with that?
Ms. O'Sullivan: Well, yes. This is the situation where this bill will fill that gap and ensure that people, as the legal term was used, don't benefit from the commission of their crime.
Senator Wallace: Ms. Giordano, the practice of the department is not to pay benefits in the circumstances where a spouse has been murdered by an individual who would otherwise receive benefit. As I understand, the purpose of the bill would be to codify that principle in law. I understand that has been the practice of the department over the years and is still the practice today.
Ms. Giordano: Yes, it is the practice of the department not to pay people that have been convicted of murder of their spouse or of their parent. However, the bill extends to manslaughter, which was not the practice of the department in the past.
Senator Wallace: What has the policy of the department been in recovering amounts that would have been paid but at the time they were paid it was not realized it would have been contrary to that policy? In other words, payments were made to someone who was later convicted of murder.
Ms. Giordano: The policy of the department was to disentitle the individual. It was seen such that the individual was never entitled, and the person was deemed in overpayment from the beginning of the payment period.
Senator Wallace: If there are circumstances under the Canada Pension Plan and, I suppose, the Old Age Security benefits where the department wished to recover amounts paid incorrectly or paid without sufficient knowledge of the existing facts, is there any discretion within the department to look at the hardship it may cause at the time that the repayment of the debt is required or requested?
Ms. Giordano: There is a provision in the Canada Pension Plan, as well as Old Age Security, that provides the minister with discretion on overpayments, if the overpayments provide hardship if there is a time limit that it would be impossible for that person to repay. There are circumstances where the overpayment can be remitted or the debt forgiven.
Senator Wallace: With regard to the retroactivity provisions in the bill, if it were later discovered that an amount should not have been paid, it would be within the discretion of the minister to determine that, because it could create undue hardship, the overpayment may not require repayment; is that true?
Ms. Giordano: When an individual is put in an overpayment situation, we are required to ask for the amount. If the person can demonstrate that it would put them at undue hardship, the minister has the discretion to remit the debt.
Senator Eggleton: Ms. Giordano, you're saying that the only difference this bill is really making is on manslaughter and territory?
Ms. Giordano: No, retroactivity is applied as it is.
Senator Eggleton: It's already there. The provisions that you already impose and are being talked about in this bill are relevant to survivor benefits, I take it, and not to the Canada Pension Plan or the Old Age Security benefits of the person who is convicted of murder — the survival benefits of the person who was murdered.
Ms. Giordano: This is strictly limited to the survivor's benefit pension of an individual who is found convicted of murder.
Senator Eggleton: But not on their own pension benefit.
Ms. Giordano: Not on a retirement or disability pension acquired through their own contributions.
Senator Eggleton: How do you find out about these cases? What's the process by which you find out? Usually convictions will come sometime after the actual event. How do you find out about these things?
Ms. Giordano: Usually we're informed by a family member or an organization or the media that this individual was convicted. The department will then confirm that the individual was convicted and benefits will be stopped and an overpayment will be sent to them.
Senator Eggleton: Do you have any idea of the kind of cases that this would involve? How many of them do get reported versus how many might not get reported? Do you have any sense of that?
Ms. Giordano: I don't have a sense of how many get reported versus how many don't get reported. We know that, on average, we do cancel one to two per year.
Senator Eggleton: One to two per year. Let me ask a question about this manslaughter provision. This was added at committee. I think probably Catherine Latimer may be in a position to answer this one.
There's manslaughter where there is no jail time, I take it, no prison time, and that would not be included. Do you have any comments about the inclusion of manslaughter? Is every case a case in manslaughter where it would be warranted to take this action, or do you think there are some cases where it would not be?
Ms. Latimer: Manslaughter is the one offence where the fact patterns can vary from something being quasi-accidental, without much criminal intent, to quite serious in terms of the seriousness of the offence.
So for some on the lighter end, where there was a snowball thrown in jest that caught the person the wrong way and somebody died, in those circumstances, it doesn't hit the mark of being adequately serious to warrant the suspension of the benefits. It is one of the trickiest offences because the fact patterns can vary and the range of penalties that can be applied can be very different. So, yes, I would think that that's one that you would need to take a serious look at.
Senator Eggleton: Do you think it should be either removed or better defined in this legislation?
Ms. Latimer: You might want to, as they often do in criminal legislation, say manslaughter for which a penalty of greater than five years was imposed. Then you would know you were in the more serious range of manslaughter. Some of it can be very innocuous, even though somebody has died.
Senator Eggleton: Okay, thank you.
Senator Seidman: If I might go back to the department issues, Ms. Giordano, just to try to understand the numbers again that Senator Eggleton was getting at and notification issues, so there's no formal mechanism for notification currently?
Ms. Giordano: No, there is no formal mechanism for notification. It would be very difficult to have a formal mechanism for notification. The information is just not collected. The issue of conviction is done by provincial and territorial courts. They do not link the relationship of the victim with the convicted individual. There are issues of privacy laws as well, at the provinces level; they may not have the authority to collect that information because they don't need it to administer their programs. So that becomes a difficult issue to automate.
Senator Seidman: Right. And our other witnesses here today have identified the notification aspect, some mechanism so you can be made aware of the ineligibility of someone as a complicated issue that might have some challenges but yet is still important. So how do you see that happening? Do you have any ideas about how that could happen?
Ms. Giordano: At this time, the legislation provides for the minister to be informed of the event. If we were to automate it, it would require a lot of probably provincial legislative amendments. We're talking about 30 people maximum per year, so it would be quite challenging.
Senator Seidman: So it's still going to be an ad hoc kind of approach?
Ms. Giordano: Yes, it's going to be upon the minister being informed.
Senator Seidman: Do the other two witnesses, Ms. O'Sullivan or Ms. Latimer, have any suggestions to offer as far as this is concerned?
Ms. O'Sullivan: Yes, I think what we're talking about here is how the victim is going to know about the CPP, unless somebody tells them.
I respect the comments about privacy and challenges in legislation, but I also find that, if the federal government continues to have their conversations with the provinces and territories, perhaps there's a way to overcome that.
But if that's not possible, at the very least, there are some other avenues. For example, most people convicted of first-degree or second-degree murder, not necessarily manslaughter, will be in a federal institution. As people may be aware, victims can register with the Parole Board of Canada and Correctional Service Canada, so ensuring that some of those agencies have regular contact. There are approximately 7,800 victims registered with the parole board and Correctional Service Canada. So it is important to make sure that they have that information. For example, they're going to be launching a Web portal in the future where registered victims can access information.
So obviously from a victim's lens, we don't want to see that notification rely on the fact that somebody gets it ad hoc. They get it from the media or they get it from wherever. Obviously, it would be great if there were some kind of flags that could come up on systems. I respect that that could be a challenge, but there are other avenues. We want to make sure that the federal minister is having conversations with their other departments to ensure that all of those avenues where victims can access information are available and that this information would be through those as well. That's just one thought or idea where we could look to ensure that there's some —
The Chair: Before I move to Ms. Latimer, I think we need to clarify the term "victim."
You're referring to the families of victims? The victim is deceased, right?
Ms. O'Sullivan: Yes, I apologize. I'm referring to the families or the people whose loved one has been murdered because, when you talk about victim, they have been impacted as well. Thank you for that clarification.
The Chair: I knew that had to be the case, but I thought it would be wise for us to clarify.
Ms. O'Sullivan: Absolutely. Thank you very much.
Ms. Latimer: Having once actually been the recipient of the orphan's benefit, my recollection was that I had to apply for it and that I had to get documentation every year that I continued to be a full-time student. It strikes me that you might be able to have something on the form that indicates that if you subsequently have been convicted of the crime you are no longer entitled to these benefits. Given that it is an application process, maybe something like that could be worked into it so that the person themselves has to take some responsibility for acknowledging or notifying.
Senator Seidman: That's a way to provide the information, exactly what Ms. O'Sullivan was talking about, so that the person is somehow linked in.
Ms. Latimer: So it doesn't necessarily follow the victim.
Senator Seidman: Okay, thank you.
Senator Merchant: Welcome to the three of you.
I'm the critic of the bill. I support the bill, by the way, because this is the common law practice now anyway. This goes back to the Magna Carta, so this is not really something new. It's just that it puts this aspect into legislation, and so I am supportive of the bill.
But I also wondered, because we do not punish retroactively in this country, necessarily, and because the John Howard Society and the Elizabeth Fry Society try to work with murderers, people who commit crimes, and try to help them get back to leading a life, to reform them, to help them. I'm wondering about the retroactivity issue. I know that you said that there are measures by which they can assess every case separately. But I did contact both the Elizabeth Fry Society and the John Howard Society, and I got this back from the Elizabeth Fry Society. I would like to have a comment. I will quote; it's very short:
For women who have been convicted of killing abusive partners in situations where they were either not able to avail themselves or not given an opportunity to argue self-defence or for whatever other reason it was reactions to violence that may not have been deemed defensive, may have been more force than was deemed necessary in the circumstances, it seems an unfair process to deny them access to Canada Pension or Old Age Security.
Ms. Latimer, can you explain to me what the issue is here?
Ms. Latimer: I think what the Elizabeth Fry Society is talking about is there is what they call a battered spouse defence, and there may be cases where there is an unfortunate power dynamic and somebody is being abused in the familial situation. For example, there isn't a battered young person defence, so if a young person is being physically abused and defends him or herself, they're more likely to attract a conviction because they don't have the defence that is sometimes given to women.
The point Elizabeth Fry is probably making is that if there is such an abusive relationship, and this is the way in which someone is defending themselves from abuse, should they then really be denied the benefits for which they would otherwise be entitled if they hadn't had to defend themselves in this abusive relationship?
Senator Merchant: So you think that's a question to think about?
Ms. Latimer: I think it is a question to think about. I note in the legislation that there seems to be a bit of discretion in terms of the minister needing to be both notified and then satisfied. Is it merely satisfying that the conviction occurred or that the conviction is for an offence, which is a type of manslaughter or murder that is sufficiently serious that the pension shouldn't flow?
Senator Merchant: I also spoke with the ex-chief of police of a city in Saskatchewan, in Prince Albert. You know there's a penitentiary in Prince Albert.
Ms. Latimer: Indeed.
Senator Merchant: He has dealt with these issues. He also has a concern about the hardship that retroactivity could cause to people who may have started a new life, may now have a new wife and family. While they are murderers — and I don't take issue with defending them — he thought of programs that try to reform people. Apparently in Prince Albert, they're going to build a hospital. This is going to be a first in Canada, has had provincial approval and it is in the works. They're going to have a facility, which is going to be a hospital. They will deal with that sort of criminal in a different way. Instead of just putting them in jail, they're trying to work with them to reform them. You do the same thing.
He had a concern about what effect this could have on a new family, for instance.
Ms. Latimer: He's raising an important point. The debt load that prisoners have now as they're coming out of prison is pretty significant, for a variety of additional monetary penalties and obligations that are being imposed on them.
It is an area we're very concerned about. It is how you get them to the point where they have a fighting chance of leading crime-free and contributing lives based on being able to discharge not only what is an appropriate penalty but what are the add-on financial penalties as well. It is a very concerning thing, not just in this context but in others.
I would say in this particular case, when you are talking about killing the person through whom the benefits would apply, it would be somewhat hard to justify that you should be entitled to that set of benefits. It would be better to try and find different mechanisms to provide some economic stability for people who are coming out of prisons.
Senator Merchant: I agree with that. It is the retroactivity issue that we are talking about, whether that may drive the person into crime again because they just can't cope.
Ms. Latimer: I agree. I was heartened by Ms. Giordano's comment that there is some latitude to forgive the retroactive payments if it would create hardship.
Senator Frum: I would like to continue the line of questioning that was begun by Senator Eggleton on the issue of manslaughter. I would like to give Ms. O'Sullivan a chance to answer the question as well.
Are you satisfied that the exemption for the cases of manslaughter with a suspended sentence is adequate to catch the cases such as the one Ms. Latimer mentioned?
Ms. O'Sullivan: I think so. Basically judges are making that decision. They're competent and qualified to judge the case before them. They're the ones that are hearing all of the evidence. As we all know, particularly with manslaughter or murder trials, they're quite significant trials with all of the evidence before them. They're qualified and competent to make that decision. If they find there are extenuating circumstances and they feel a suspended sentence, that's who makes the decision.
One comment in terms of the cost of crime to society is that we can never lose sight of the fact that according to the Department of Justice, 83 per cent of the cost of crime in this country is borne by victims. When we talk about the economics when someone is murdered, I can tell you there are all the concurrent issues that go with that. They, too, require the supports. They, too, are going to have to deal with all of those issues.
I want to keep in mind, when we look at them, that if we want healthy and safe societies, we look holistically at the needs of everyone within that. Thank you for that. Judges are competent and qualified to make that decision based on the evidence before them.
Senator Frum: For clarification, it would be unlikely, rarely or never that a judge would give a jail sentence to someone who committed an accidental murder?
Ms. O'Sullivan: I can't speak to what individual decisions are. Those are decisions before the courts. We have heard of cases where, for example, if the accused is a woman who had the battered syndrome, that could be the type of circumstance where they might impose them based on that. I can't answer for every individual case. That's the way our criminal justice system is set up and the appropriate participants in the criminal justice system to make those decisions.
Senator Enverga: Thank you for the presentation. I'm all for the bill. They shouldn't profit from their crime. However, as we have victims who have really contributed to the pension plan, the CPP and other benefits, my question is: What happens to the money? Does the government keep it? Do they donate it somewhere else?
Ms. Giordano: This goes to the structure of the Canada Pension Plan. The Canada Pension Plan is a social insurance plan, which is based on pool risk. Not everybody will benefit from every benefit. You are insured for disability and hopefully you will never have to collect it, but you are contributing.
Since it is pooled risk, it goes back into the pool. The CPP has a separate account, which is used only to pay benefits and to administrate a plan and invest. Let's say you are a couple and one of you passes away, you get the survivor benefit of the other one. When you pass away, no one gets your survivor benefit if you are not in a couple again.
Not everybody gets to benefit. It would be the same thing in these cases. They would not be eligible for the benefit, and it wouldn't be paid. Whatever money is taken would be put back into the CPP.
Senator Enverga: Let's say they have two beneficiaries. Do they have beneficiaries for survivors?
Ms. Giordano: The CPP doesn't work with beneficiaries for the survivor benefit. Your survivor's pension is paid to the spouse or common-law partner of the deceased. Your orphan's benefit is paid to the dependent children of the deceased, and your death benefit is paid to the estate of the deceased. If there's no estate, there are named individuals who can receive it.
Senator Enverga: Let's say we cannot give it to the beneficiary because he killed the contributor. Maybe there's a way for us to channel it through certain funds so it will help other victims of crime. That's what I'm hoping for.
Ms. Giordano: The bill doesn't address that.
Senator Enverga: Maybe that's another bill.
The Chair: That's a whole separate piece of legislation, senator. We won't go down that road further.
[Translation]
Senator Chaput: My first question is for Ms. Giordano. How will the passage of Bill C-591 change your responsibilities and those of the department concerned? Does the bill pose any specific challenges?
Ms. Giordano: The changes will be very minor, given that we are basically already doing what the bill is proposing, pursuant to a policy consistent with the common law principle of ex turpi causa, whereby an individual should not benefit from his or her crime. What will change is our operational policy; we'll be notifying people across the country that the legislation will now include homicide, which will, therefore, have to be taken into account.
Senator Chaput: Will a formal mechanism be necessary to collect the information? Will the provinces and territories need to be involved in collecting the information?
Ms. Giordano: It won't involve any cost, or very little, but nothing that requires provincial support. The provinces won't be involved in applying this bill. The provinces come into the picture when major CPP changes are made, for example, changes to the contribution rate, benefits or the management of the account. Those situations are defined in the act, but this is not one that requires agreement from the provinces.
Senator Chaput: Thank you. I have a question for Ms. Latimer or Ms. O'Sullivan. Were you consulted about the bill beforehand? Are there amendments you would like to see? Ms. Latimer, in your presentation, I believe you recommended that something be added to the bill. But were you consulted beforehand?
[English]
Ms. O'Sullivan: No, we were not consulted. This is a private member's bill. Also, we are not consulted on government bills unless they are looking for recommendations, like the victims' bill of rights. So the legislation is developed either through private members or the government and then we respond to that.
[Translation]
Senator Chaput: So where do you stand on the bill?
[English]
Ms. O'Sullivan: We support this bill, yes.
Ms. Latimer: We were not consulted either. We definitely support the principles of the bill. I mentioned in my presentation that I had a little bit of concern about the retroactive provision because the minister is entitled to deny benefits upon the conviction, and it looks as though they want to go back before the conviction to assess whether the payments are excessive.
Also, I'm a little unsure as to why the age of 18 is in there. I think if the young person had received an adult penalty in connection with the murder or manslaughter of the contributor, that that would be adequate to disentitle them.
Senator Stewart Olsen: Thank you for coming. I have one question to Ms. Giordano. Is there an appeals process? I'm thinking mostly for the questions that were raised around abused spouses or abused children. Would there be an appeal process in that case?
Ms. Giordano: Most decisions of the minister are appealable. First, there's a reconsideration made by the department under a different analyst that will look at the circumstances. After that they can go to the Social Security Tribunal at the General Division. After there's the Appeals Division and then there is the Federal Court of Appeal that can look at the decisions. The decisions are appealable.
Senator Eggleton: There doesn't really appear to be much need for this bill. There's one or two cases a year and it is all examined under the common-law provisions outlined here. The manslaughter element was added at committee, actually. It wasn't even part of the original bill. I want to go back to that for a moment because Senator Frum raised it again with Ms. O'Sullivan.
I agree with you when you say the courts will handle all the evidence and put the balance to it all and make the right decision as to the penalty to be followed. This bill would clearly make only one distinction and that is the distinction in manslaughter between a sentence and a non-sentence, where the sentence is suspended.
Ms. Latimer says that maybe up to five years might better catch the kind of cases that deserve some further consideration. I don't know what the difference is. For example, if you get a one- or two-year sentence of an abusive situation versus a suspended sentence, I don't know that it is all that clear where this division comes about.
I am trying to determine whether I would feel more comfortable supporting this five-year provision or just as it is, the suspended provision. Can you add anything to that?
Ms. O'Sullivan: The way the bill is presented for suspended because keeping in mind that manslaughter — although intent should be known by their actions that it could have resulted in serious harm. Keeping in mind, as well, there's plea bargaining that transpires in many cases. It could be plea bargained down to manslaughter. There are a lot of different factors that come into that. I leave it to the committee. We are dealing with manslaughter and we are dealing with that they should have known that it could have resulted in serious harm. Those are some of the things you need to look at. This bill has presented it, as we requested, that manslaughter be included — not just by ours, but other agencies, as well, asked for manslaughter to be included.
Senator Eggleton: What about this provision of the adult sentence that are 18 years or older? As Ms. Latimer pointed out, there could be a 17-year-old who kills their parent and I think we have seen a few of those cases.
This goes in reverse. It seems from what is —
Ms. O'Sullivan: I could be corrected by Ms. Giordano, but it is my understanding the money would go to the estate, although the family shouldn't have to suffer, if the estate or parent can still get that money.
Ms. Giordano: The way the orphan benefit functions is that under age 18, it is paid to the person who has care and custody of the child. Therefore, that individual would have received the money probably after the conviction. If we were to take away the money, then we would have to go back and that person is probably one of the victims as defined by Ms. O'Sullivan, a family member that has probably lost their spouse because their child killed their parent. After that, go and get the money back from them because they received it to take care of the spouse. As soon as a child is no longer in custody of that individual, it is only the individual or the organization that has care and custody that can have that.
The other thing for children under 18 is that the information is not available to us. So the laws protect children under 18 so that information would not be available to the department.
Senator Eggleton: In terms of what you do now in the processing of this, that 18 years and older wouldn't have any impact through this legislation, in terms of your current processes?
Ms. Giordano: That's correct.
Senator Raine: It has been very helpful to clarify the nuances of this legislation. My understanding is that vital statistics are kept by the province. When a person dies, is the cause of death recorded in vital statistics? If the cause of death is a bullet wound or gunshot — or does murder or manslaughter go as a cause of death? I don't think it does. Is there any way to link the information back? What I'm getting at is the need for the victim to go and have to apply for it. There's no other way for it to be triggered.
Ms. Giordano: I don't know if vital statistics puts the cause of death, like murder, on the death information. However, I don't think vital statistics would put "murdered by their spouse" or "murdered by their common-law partner" and does the common-law partner meet the definition under the CPP and Old Age Security Act, which is defined.
Senator Raine: I was surprised to find out there's no registry of convictions for murder and manslaughter on a national basis.
Ms. Giordano: I'm not an expert on the —
Ms. O'Sullivan: I am aware there's a committee at the national territorial level called the POLIS Committee that looks at police information statistics. Perhaps that committee could take a look because most police agencies have record management systems. Those record management systems and uniform crime reporting statistics are all done and hopefully be consistent across the country. I would not speak on behalf, obviously, of the provinces or the police agencies. I would suggest perhaps there are some entities that the question could be posed to as to whether or not it would be feasible. I want to echo your comments that feasibility looks at the cost of doing this. If there was a study or a committee that could be approached to ask if this is doable in a way that's not for 30 cases a year going to be cost prohibitive. There are some entities perhaps that could be followed up with. I offer that up.
Senator Merchant: I wanted to pursue again what Senator Eggleton said a few minutes ago whether there's a need for this bill, because many of these things are happening already. I know it's good to codify it and put it into legislation, but this is something that is already in common law and we have judges that you said are very qualified.
There was another situation that was pointed out, I think it was by Elizabeth Fry, who said when convicted people come out after serving what used to be 25 years, now maybe 35 years, depending on the charge, they really did not agree with the retroactivity, although you say it's happening right now.
When a person comes out, they need to be supported. If you take back what they have collected, you are then going to have to turn on the other hand and support them through the other mechanisms that we have to support people who can't support themselves. They wondered whether this is a political move to appease certain people or how is this going to really work.
Ms. Latimer: I think you're pointing to a profound and difficult issue. When people leave prisons, generally they're facing very serious conditions of poverty, homelessness and real prejudice in terms of finding any kind of work. It is a real challenge for them, which is something that I think as a society we need to work on in terms of improving their employment prospects and the likelihood that they will get employment.
This is a little bit different. If they knew they were on charges or that they were likely going to be suspected or convicted — now it could be that they were wrongfully convicted and this came out of the blue, you would wonder why they would apply for the benefits. At some level you should know that, if you become convicted, you are really not entitled to them.
There is a different common-law principle that is based on justice about profiting or benefiting from the actual crime that you have committed. I think that's sort of the overarching thing here.
What you're pointing to, which are the real problems of socially and economically reintegrating people after long periods of custody, is a legitimate and real concern.
The Chair: Thank you, colleagues. Thank you, witnesses. I think this last discussion is one that covers what you have said, Ms. Latimer, a number of issues, certainly a number of points of view. There is a clear distinction between an individual needing help from society to continue their living and to, on the other hand, benefit from a crime directly. That seems to be a very clear issue around which this bill is focused. You have all identified a number of important aspects here. The issue of understanding and discretion that is available given the nature of the circumstance in terms of clawing back benefits that have been paid out is an important part. It is in the bill here. You focused on that as well. You have gone a long way to helping us be able to reach a decision on this when we come to clause by clause.
(The committee adjourned.)