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Editorial: Context is everything

Law Times reports this week on a ruling by the Ontario Court of Appeal in R. v. Tinker.

The decision reiterates there is no discretion for lower court judges to avoid imposing mandatory victim surcharges on offenders, regardless of their ability to pay the fines.

In the ruling, Ontario Court of Appeal Justice Gladys Pardu concludes that “the surcharge is not grossly disproportionate to what would be a proportionate sentence for these offenders.”

“I accept that it is disproportionate, but I cannot go so far as to conclude that it meets the high standard of being so excessive as to be abhorrent, intolerable or outrageous to Canadians’ sense of decency,” says the ruling. “[T]he frustration of sentencing judges who have balked at the seeming futility of imposing victim fine surcharges that are beyond the means of an offender in the foreseeable future is understandable, but the surcharge regime does not amount to a violation of s. 7 or s. 12 of the Charter.”

Pardu, in some ways, is right, when it comes to the technical aspects of the law. Something does not necessarily have to be a Charter violation, however, for it to be morally incorrect in its application in certain cases. Charging offenders mandatory surcharges regardless of their circumstances and removing judicial independence in determining what is appropriate short-circuits an efficient, thoughtful and attuned process. Columnist Susan Delacourt — who chronicles Parliamentary politics — has described how the federal Liberal government has a unique chance to reshape power at the top. But tweaking policy — even when potentially unpopular — means reshaping things so those at the bottom benefit as well.

The federal Liberals have already promised to make changes regarding mandatory surcharges on offenders. They should be moving faster. Get going, Ottawa.

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