The Ontario Court of Appeal has made it clear that there is no discretion for lower court judges to avoid imposing mandatory victim surcharges on offenders regardless of their ability to pay the fines.
The surcharges enacted as part of the Increasing Offenders’ Accountability for Victims Act may be disproportionate against some accused, but they do not violate the Charter, the Court of Appeal ruled in R. v. Tinker, released on June 30.
In a companion decision, R. v. Fedele, the court found also that the fines must be imposed on every count and cannot be applied concurrently.
“The 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,” wrote Justice Gladys Pardu, with Justices Paul Rouleau and Katherine van Rensburg concurring.
“[T]he mandatory imposition of the surcharge does go some way towards achieving the valid penal purpose of holding offenders accountable to victims of crime and the community,” Pardu wrote in Tinker, which involved a total of six appellants from three separate proceedings.
Diana Lumba, a Toronto defence lawyer who acted for the Criminal Lawyers’ Association, which was an intervener in Tinker, says she hopes the federal Liberal government will move more quickly to amend the provisions.
“This is an inherently bad law. It is arbitrary and there are no considerations of the offence or the offender,” says Lumba, a lawyer at Edward H. Royle & Associates.
Discretion on whether to impose the surcharges was taken away from judges in amendments passed in 2013 by the Conservative government.
Mandatory surcharges were imposed of $100 for each offence punishable by summary conviction and $200 for each offence punishable by indictment.
A number of provincial court judges in Ontario released rulings that were critical of the changes because of the impact on chronic petty offenders, many with substance abuse or mental health issues.
One of the most high profile of these decisions was issued by Justice David Paciocco in 2014 in R. v. Michael.
The defendant was a 26-year-old homeless man of Inuit background with substance abuse issues, required to pay $900 in fines for property offences. Paciocco, then a provincial court judge, found that the mandatory surcharges violated the Charter. Since it was a provincial court decision, it was not binding on other judges.
Paciocco was elevated to the Court of Appeal this spring.
His new colleagues made reference to his decision in Michael and disagreed that the facts of that case supported the finding that the provisions are unconstitutional.
The Court of Appeal agreed that five of the appellants in Tinker face “social hardship” in their lives.
But if they cannot pay the fines within the time permitted, they can go to court to seek an extension.
As well, the appeal court said it is reasonable to require an explanation if an offender has defaulted.
“Calling them to account in this fashion, in the open and public forum of the court, and inquiring into their excuse for refusing to pay acts as a reminder of the offender’s accountability to victims of crime,” wrote Pardu.
Funds generated from these surcharges are put into the Victims Fund in Ontario to support programs with services for victims or grants for community agencies.
According to the province, 97 per cent of the $47.5 million raised for the fund in the 2014/15 fiscal year came from surcharges on provincial fines, such as highway traffic offences.
Three per cent came from Criminal Code surcharges.
The Income Security Advocacy Centre, a specialized Legal Aid Ontario clinic, was also an intervener in Tinker.
Jackie Esmonde, a staff lawyer who acted for the centre, says the fines have a significant impact on the most marginalized offenders.
“They may never complete their sentence. It is a different system of justice for the poor,” she says. As well, efforts to rehabilitate are hampered by restrictions on obtaining documents such as a driver’s licence until the fines are paid in full, notes Esmonde.
The decision underestimates the difficulty some individuals will have in bringing applications for more time to pay, suggests Lumba.
“The Court of Appeal finds that the constitutionality of this regime can be saved by the belief that a poor offender can perpetually apply for an extension of time. Respectfully, that is not realistic,” she says. Chronic offenders who are in default could also spend more time in custody waiting for a hearing to seek an extension, she adds.
While the law in this area is settled for now in Ontario, the Supreme Court of Canada will hear a challenge to the surcharges in January, stemming from a Quebec case.
A bill that would restore some discretion to judges on whether to impose the fines was introduced last fall by federal Justice Minister Jody Wilson-Raybould.
The bill has not moved forward and remains in first reading. A spokesman for the federal Department of Justice says management of the legislative agenda is up to the government house leader.