As the Ontario Court of Appeal dealt a blow to the government’s three-year mandatory minimum sentence for gun possession last week, some Ontario judges are finding other ways to resist crime legislation that takes away their discretion to waive victim surcharge fines even when they think criminals can’t afford to pay.
Lawyers say judges have either given criminals a very long time to pay the fee — in one case 50 years — or haven’t imposed it at all in some matters. Last month, the government doubled the victim surcharge fine, a levy collected from criminals to fund victim services. It also made the fine mandatory as of Oct. 24. Under the new law, courts can impose a surcharge equal to 30 per cent of any fine awarded against the offender. In cases where there’s no fine, the surcharge is $100 for a summary conviction and $200 for an indictable matter.
“A number of judges in Ottawa, as well as a number of judges visiting from other jurisdictions . . . had that adverse reaction to it because it removes discretion and it results in hardship,” says Ottawa lawyer Douglas Baum.
Baum recently represented a man who had pleaded guilty to stealing a bottle of rum from the LCBO. In that case, Ontario Court Justice Heather Perkins-McVey gave the man 50 years to pay a $100 victim surcharge fine.
In 50 years, the client will be 81 years old, says Baum. “What are they going to do? Keep [the order] for 50 years and try and enforce it? Turn it over to collections?”
In another case, Ontario Court Justice Peter Coulson simply refused to impose the surcharge on a man convicted of stealing chocolate bars from a Dollarama store.
“A guy stealing chocolate bars doesn’t have the money to pay the fine or he’s going to have to steal to pay the fine,” says Baum.
“You do need to leave some discretion in cases where people have no money.”
The federal government says those who are unable to pay the surcharge “will be able to discharge the victim surcharge by participating in a fine option program or through alternative mechanisms.” But in Ontario, no such program exists.
“The whole thing is really poor planning,” says Baum. “It’s discordance between passing laws at the federal level without assuring that the administration of justice in the provinces have the resources to accommodate it.”
Criminal Lawyers’ Association president Anthony Moustacalis says judges have been expressing concerns about the constitutionality of the new law.
“In my view, this is ill thought out because it creates more expense to enforce the collection in the back end instead of making a determination at the beginning whether a person can pay,” he says.
“My complaint is that it’s a waste of money to chase after people and have police officers serve them with notices to come to court when you already know they’re on welfare and they’re poor. So why would you spend more money to find out if they’re still poor after five months to try to collect $200 out of them instead of making that decision at the beginning?” he adds.
“It just makes no sense to me,” he notes, adding it’s a known fact that more than half of the people coming before the criminal courts are on welfare.
Criminal lawyer Jeff Manishen says the government made the move without evidence that the existing way of imposing victim surcharges wasn’t working.
“What was the basis for making this change in the Criminal Code? What was the identified need?” he asks.
Judges, says Manishen, always had to determine whether the offender could afford the fee and would order it when they found it was appropriate. “What was wrong with that? What was so unjust about that?”
According to Justice Minister Peter MacKay, the government is “sending a signal” that offenders must pay victims for the damage they caused.
In an announcement, Minister of Public Safety Steven Blaney said: “Canadians deserve a justice system that sentences offenders in a way that reflects the severity of their crime and respects victims of crime.
“By making the surcharge mandatory, the Increasing Offenders’ Accountability for Victims Act ensures that all offenders are held responsible for their actions.”
Toronto criminal lawyer Brian Ross of Rusonik O’Connor Robbins Ross Gorham & Angelini LLP says he takes issue with Blaney’s suggestion that the surcharge reflects the severity of crimes.
If a person convicted of a crime gets a $50 fine, 30 per cent of that amount will be about $15, says Ross. But if the court imposes a more lenient conditional discharge with no fine, the person ultimately ends up paying $100, he notes.
When judges waived the surcharge in the past, it wasn’t on the basis of avoiding accountability, Ross adds.
The mandatory surcharge “really is ridiculous” he says. “It limits judges’ discretion and anything that limits a trial judge’s discretion, most criminal lawyers — certainly myself — are going to be against [it].”
When it comes to stiffer crime laws, the judiciary also dealt the government a blow last week when the Ontario Court of Appeal decided that the three-year mandatory minimum sentence for gun crimes was unconstitutional.
The mandatory sentence amounts to “cruel and unusual” punishment, the court said, noting the law would encompass people facing charges as minor as licence violations.
“No system of criminal justice that would resort to punishments that ‘outrage standards of decency’ in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry,” the appeal court said in R. v. Nur.
The ruling shows that “a one-size-fits-all approach doesn’t work for the sentencing of individuals,” says Ross.
“Judges must maintain their discretion to apply the appropriate factors appropriately,” he adds, noting the court’s decision “recognizes that judges can and should be trusted to pass an appropriate sentence. Obviously, if a particular sentence is demonstrably unfit, it can be appealed.”
When it comes to victim surcharge fines, the Justice Department said it couldn’t comment on whether it would appeal cases where judges have waived the levy or given the offender a long period of time to pay it.
“The federal minister of justice will not comment on the correctness or incorrectness of decisions currently before the courts. If and when the federal government becomes party to any appeal, the government will state its position at that time,” said McKay spokeswoman Paloma Aguilar.
Aguilar also touted the mandatory surcharge as a source of revenue for victims’ services.
“The victim surcharge amendments imposed by [Bill] C-37 build on our government’s commitment to victims and will provide increased revenues to provinces and territories in support of their delivery of victims’ services,” she told Law Times.
The absence of a fine option program in Ontario is a provincial issue, she noted.
The mandatory surcharge will only apply to crimes committed after the legislation came into force.